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Madhya Pradesh High Court · body

2012 DIGILAW 209 (MP)

Dwarka Sheet Udyog v. Rajendra Manihar

2012-02-16

S.C.SHARMA

body2012
ORDER 1. The present appeal has been preferred under Order 43 Rule 1 of the Code of Civil Procedure by the appellant, being aggrieved by the order Dt. 25.11.2004, passed by the trial Court on an application preferred unde Or. 11 R. 21 of the Code of Civil Procedure. 2. In the present case, a Civil Suit was preferred on 10.6.92 by the present appellant for recovery and a written statement was filed by the defendant No. 1, 2 and 3. The defendant No. 4 therein was proceeded ex-parte. Issues were framed by the trial Court and the evidence of the plaintiff was also concluded. On 27.8.04 an application was preferred under O. 11 R. 21 of the Code of Civil Procedure and it was stated in the aforesaid application that they have requested the plaintiff for producing certain documents in evidence but the plaintiff has failed to do so. 3. A reply was filed to the aforesaid application and it was stated in the reply that the documents desired are of the year 1989 and they are not available with the plaintiff and all necessary documents relating to the disputed transaction have already been filed by the plaintiff before the trial Court. The trial Court has finally decided the application preferred under Or. 11 R. 21 of the Code of Civil Procedure and the suit has been dismissed. 4. This Court has carefully gone through the impugned order as well as the record of the trial Court and has also heard learned counsel for the parties at length. 5. In the present case, the record establishes that an application was preferred under Or. 11 R. 21 of the Code of Civil Procedure on 27.8.04. Certain documents relating to the transaction of the year 1989 were the subject matter of the application dt. 27.8.04 and the aforesaid documents were not available with the appellant/plaintiff as the plaintiff/appellant was not required to preserve such document on account of any statutory provision. Not only this, the documents were not at all relating to the transactions on the basis of which the recovery suit was filed. The record further reveals that the trial Court has directed the plaintiff by order Dt. 23.7.04 to produce the documents, however, the documents which were in respect of some transaction of the year 1989 was not produced by the plaintiff. The record further reveals that the trial Court has directed the plaintiff by order Dt. 23.7.04 to produce the documents, however, the documents which were in respect of some transaction of the year 1989 was not produced by the plaintiff. Order 11 Rule 14 and Rule 21 reads as under : Order XI -- Discovery and Inspection : Rule 14. 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 of 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 matter as shall appear just. Rule 21. 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. 6. The suit has been dismissed for non-compliance of order dt. 28.7.2004 passed by the trial Court by invoking the provisions as contained under Or. 11 Rule 21 of the Code of Civil Procedure. 7. This Court is of the considered opinion that as the transaction was of the year 1989 and as the vintage record relating to transaction was not available with the plaintiff the same was not rightly produced by the plaintiff in spite of there being a direction by the trial Court. The plaintiff by virtue of the impugned order is now even precluded from filing a fresh suit on account of the statutory bar as contained under Or. The plaintiff by virtue of the impugned order is now even precluded from filing a fresh suit on account of the statutory bar as contained under Or. 11 R. 21 of the Code of Civil Procedure and therefore keeping in view the totality of the circumstances of the case, as the record was not available with the plaintiff which was of the year 1989 vintage, the suit could not have been dismissed in the manner and method it has been done and the trial Court could have certainly proceed on merits. 8. Resultantly, the appeal is allowed. The impugned order dt. 25.11.2004 is set aside and the matter is remanded back to the trial Court for conclusion of the suit as expeditiously as possible, preferably within a period of 6 months from the date of receipt of certified copy of this order. The parties are also directed to appear before the trial Court on 5.3.2012.