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Madhya Pradesh High Court · body

2009 DIGILAW 1116 (MP)

ARCHDIOCESE OF BHOPAL REGD SOCIETY v. HASAN KABIR

2009-09-11

ARUN MISHRA, SUSHMA SHRIVASTAVA

body2009
Judgment ( 1. ) -WRIT petition has been filed calling in question the legality of the appellate order allowing the appeal setting aside the dismissal of the suit by the trial Court under the provisions of Order 11 Rule 21 CPC due to non-compliance of an order dated 14. 1. 2005 passed under Order 11 Rule 14 (1) of CPC. ( 2. ) DEFENDANT had filed an application for directing plaintiff to file original documents of which photo copies were submitted along with the plaint. The trial court has ordered on 14. 1. 05 that plaintiff to produce in Court all the documents which may be in his possession in original within three days of passing of the order. The trial Court directed hearing of the application under Order 7 Rule 11 cpc on the next date. The trial Court vide Order dated 31. 1. 05 considered the effect of non-compliance of order dated 14. 1. 05 of not filing the original documents within three days. The plaintiff has failed to file the documents till 31. 1. 05, consequently the suit was ordered to be dismissed under Order 11 Rule 21 of cpc. Application under Order 7 Rule 11 CPC was not considered in view of dismissal of the suit under the aforesaid provision. Aggrieved by the order, civil misc. appeal was preferred. The appeal has been allowed by 2nd Addl. District Judge vide order dated 5. 12. 05. The appellate Court has held that trial Court has passed the order under Order 11 Rule 14 CPC for production of documents, in case of non-compliance of order, suit cannot be dismissed under the provision of order 11 Rule 21 CPC. It has also been observed by the appellate Court that the power under order 11 Rule 21 CPC has to be exercised sparingly. The order of dismissal of the suit has been set aside, appeal has been allowed. Dissatisfied thereby, the writ petition has been preferred. ( 3. ) SHRI Shashank Verma, learned counsel appearing for the petitioner has submitted that suit was rightly dismissed by the trial Court under Order 11 rule 21 of CPC. The order of dismissal of the suit has been set aside, appeal has been allowed. Dissatisfied thereby, the writ petition has been preferred. ( 3. ) SHRI Shashank Verma, learned counsel appearing for the petitioner has submitted that suit was rightly dismissed by the trial Court under Order 11 rule 21 of CPC. He has relied upon decision of this Court in Indore Development Authority, Indore vs. Satyapal Anand and another 2000 (2) MPLJ 229 in which reliance has been placed on a decision of Nagpur High Court in Premraj Bheoraj Agarwal vs. Nathumal Rupchdnd Marwadi air 1936 Nagpur 130. Shri Verma has also placed reliance upon a decision of Apex Court in M/s Babbar Sewing Machine Co. vs. Tirlok Nath Mahajan air 1978 SC 1436 . ( 4. ) MS. Rekha Yadav, learned counsel appearing for respondent no. 1 has supported the order. ( 5. ) THE main question for consideration is whether due to non-compliance of the order passed under Order 11 Rule 14 CPC with respect to production of documents, suit can be dismissed under the provision of Order 11 Rule 21 CPC. ( 6. ) ORDER 11 Rule 14 CPC is quoted below :-"production of documents- It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right, and the Court may deal with such documents, when produced, in such manner as shall appear just. " ( 7. " ( 7. ) ORDER 11 Rule 21 CPC is quoted below :- "non-compliance with order for discovery- (1) Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the court for an order to that effect, (and an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard.) (2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action. " ( 8. ) A bare reading of Rule 21 of Order 11 CPC makes it clear that the provision entails non-compliance of the order to answer interrogatories. Interrogatories are dealt with under Rule 1 to Rule 11 of Order 11. Rule 12 of Order 11 CPC deals with application for discovery of documents. Inspection of the documents which is referred to in Rule 21 is again dealt with in Rule 15 to 18 of Order 11 CPC. The Order 11 Rule 1 CPC enables party to a suit to make discovery by interrogatories by leave of Court. Rule 2 of Order 11 CPC provides that particular interrogatories to be submitted to the Court, and factors to be taken into consideration. Order 11 Rule 11 provides that when any person omits to answer or answer insufficiently the court may on application, direct to answer or further answer. The Court orders discovery of document under Rule 12 of Order 11 CPC. The Rule 18 of Order 11 CPC provides that where the party served with notice under rule 15 omits to give such notice of a time for inspection or objects to give inspection, or offers inspection elsewhere than at the office of his pleader, the Court may, on the application of the party desiring it, make an order for inspection in such place arid in such manner as it may think fit. In case plaintiff fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, be liable to have his suit dismissed for want of prosecution. In case of defendant not complying with the provision, his defence can be struck off and he may be placed in the same position as if he had not defended. It is further required that party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect and by way of amendment which has been inserted with effect from 1. 2. 1977 the order may be made under Order 11 Rule 21 CPC after notice to the parties and after giving them reasonable opportunity of being heard. The sine, qua non for exercising the power under Rule 21 is failure to answer the interrogatories, order of discovery or inspection of documents. Non-compliance of Rule 14 which is with respect to production of documents is not covered under rule 21 CPC. Legislature has thought it appropriate in case of plaintiff if he fails to comply with the order relating to interrogatories, discovery or inspection of documents a suit be dismissed or in case of defendant his defence may be struck off. Legislature in its wisdom has not included in Rule 21 of order 11 CPC such a penal consequence due to non-compliance of order passed under Order 11 Rule 14 CPC. Moreover in the instant case, it is not in dispute that no application was filed for dismissal of suit under Order 11 Rule 21 CPC which is condition precedent for exercise of the power under the aforesaid provision, thus, even assuming for a moment that aforesaid provision was applicable, it was not open for the trial Court to. have passed the order dismissing the suit. An order under Order 11 Rule 21 CPC can be passed only on an application and that too after giving notice to the parties and giving them reasonable opportunity of being heard. It is also provided in sub-rule (2)of Rule 21 of Order 11 that once suit is dismissed under sub-rule (1) of Rule 21 of Order 11 CPC, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action. It is also provided in sub-rule (2)of Rule 21 of Order 11 that once suit is dismissed under sub-rule (1) of Rule 21 of Order 11 CPC, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action. This dire consequence is not provided with respect to non-compliance of Order 11 Rule 14 CPC, but it is the consequence of noncompliance of order of interrogatories, interrogatories are dealt with in Rule 1 to Rule 11 of Order 11 CPC. Rule 12 deals with discovery and Rule 15 to 18 deals with inspection of documents. The non-compliance as to aforesaid is covered within the ken of penal provisions contained in Rule 21 of Order 11 CPC. ( 9. ) IN Premraj Bheoraj Agarwal vs. Nathumal Rupchand Marwadi (supra) there was an application moved for inspection of documents which was allowed by the Court. Court has, directed production of account bills which was not produced, in that context observation has been made that Order 11 Rule 21 CPC, provides the penalty for non-compliance of such a direction. Order 11 Rule 14 cpc has also been referred. When the documents are in power of the Court, it was held that the Court would have no jurisdiction to proceed under. Order 11 rule 21 CPC. If it could not have proceeded under that rule, it could not have proceeded under the general provision of Section 25 of Provincial Insolvency act. Thus, dismissal of the suit was set aside. The decision has to be seen in the context that Court has ordered inspection of documents and consequent production, inspection is dealt with under Rule 15 to 18 of Order 11 CPC. ( 10. ) IN Chinnappan vs. Ramachqndran AIR 1989 Madras 314 it was laid down that failure to produce the documents directed to be produced by an order of Court passed under Order 11 Rule 14 CPC does not enable the Court to exercise its powers under Order 11 Rule 21 CPC. Such an application is misconceived and not maintainable. ( 11. ) IN Prem Sukh Chunder and others vs. Indronath Banerjee ILR 1891 18 Cal 420, Shankar Deoba Patil and another vs. Ganpatilal Shiodayal Chamedia AIR 1971 Bombay 87, Koduri Krishnarao vs. State of Andhra, now Andhra Pradesh represented by Secy. to the Govt. Such an application is misconceived and not maintainable. ( 11. ) IN Prem Sukh Chunder and others vs. Indronath Banerjee ILR 1891 18 Cal 420, Shankar Deoba Patil and another vs. Ganpatilal Shiodayal Chamedia AIR 1971 Bombay 87, Koduri Krishnarao vs. State of Andhra, now Andhra Pradesh represented by Secy. to the Govt. (Public Works Dept.)Hyderabad AIR 1962 Andhra Pradesh 249, Chander Bhan Singh vs. Lallu Singh and another AIR 1947 Allahabad 343, Ram Kishun Lal and others vs. Abu Abdullah Syed Hussain Imam AIR 1943 Patna 69 and in Devakaran bholaram and others vs. Sangidas Jesiram and others AIR 1925 Born 386, it has been laid down that in the absence of an order under Rules 11,12 or 18 and the disobedience thereof by the party against whom the order is made, the Court cannot act under Rule 21 Order 11 CPC. ( 12. ) AN order for production of documents raider Rule 14 of Order 11 CPC is not one of the orders mentioned in Rule 21 of Order 11 CPC. A disobedience of an order for production under Rule 14 of Order 11 CPC would not empower the court to take action under Rule 21 of Order 11 CPC has been laid down in G. Kishan Rao vs. B. Narayan Reddy ILR 1970 Andh Pra 1203, M/s Gur Prasad Shyam babu and others vs. State Bank of India and another AIR 1994 Allahabad 151, Lyalpur Sugar Mills and Co. and another vs. R. C. G. Sahai Cotton Mills and Co. AIR. 1922 Allahabad 235, (Sahu) Munna Lal vs. Tara and another AIR 1929 Allahabad 83, Subbayyar vs. M. LM. Ramanathan Chettiar 1924 Madras 582, Amarsingh vs. Chaturbhuj and others AIR 1957 Rajasthan 367 and in Shri Baba Shiva Sambhu and another vs. Raj Mohan Deb Nath and others air 1966 Tripura 16. ( 13. ) THE Apex Court in M/s Babbar Sewing Machine Co. vs. Tirlok Nath Mahajan (supra) has considered the provision of Order 11 Rule 21 CPC and it has been observed that power for dismissal of a suit or striking out of the defence under Order 11 Rule 21 CPC should be exercised only where the defaulting party fails to attend the hearing or is guilty of prolonged or inordinate and inexcusable delay which may cause substantial or serious prejudice to the opposite party. There was joint application under Rule 14 and Rule 18 of Order 11 CPC for production and inspection of documents. In the instant case, there was no application or order under Order 11 Rule 18 CPC. Thus, decision of Apex Court is in the context of Order 11 Rule 18 CPC. ( 14. ) A single Bench decision of this Court in Indore Development Authority, Indore vs. Satyapal Anand and another (supra) has been relied upon in which learned single Judge of this Court has opined that suit can be dismissed under Order 11 Rule 21 CPC in case there is failure to comply with the order passed under Order 11 Rule 14 CPC. We are unable to agree with the view taken in Indore Development Authority, Indore vs. Satyapal Anand and another (supra) in view of clear language of the rule and number of decisions of the various High Courts on this aspect. We hold that law has not been correctly laid down in the aforesaid decision. ( 15. ) IN view of above, we hold that due to non-compliance of provision under order 11 Rule 14 of CPC suit cannot be dismissed under Order 11 Rule 21 CPC. It can be dismissed only in the exigencies such as due to non-compliance of orders of interrogatories, discovery or inspection as envisaged under Order 11 rule 21 CPC. ( 16. ) RESUTTANTLY, we dismiss the writ petition and leave the parties to bear their own costs as incurred of the petition. Petition dismissed.