ORDER : Gurpal Singh Ahluwalia, J. This writ appeal, under Section 2 (1) of the M.P. Uchcha Nyayalay (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 has been filed against the order dated 16-11-2018 passed by learned Single Judge in W.P. No. 697/2009, as well as, order dated 7/2/2019 passed by learned Single Judge in R.P. No.1811/2018, by which it has been held that non-extension of opportunity of hearing has not caused any prejudice to the petitioner/appellant and by applying the principle of useless formality it is held that withdrawal of order of regularisation is not bad. 2. It is the case of appellant that he in the year 1998 was appointed as Revenue Sub Inspector and his services were absorbed by resolution passed by Nagar Panchayat against a clear and vacant post. By oral order dated 1- 10-1998, he was removed from service and his salary was also stopped. The action of respondents was challenged by appellant before the Labour Court by raising industrial dispute and by order dated 4-6-2001, the Labour Court directed for his reinstatement, as well as, for payment of dues to the tune of Rs.1,90,000/- for a period of 2 years of service. The order of Labour Court was challenged by the department by filing W.P. No. 42/2002, however lateron the said petition was withdrawn. As a result the order of Labour Court attained finality. On 8-6-2001, Chief Municipal Officer, Nagar Panchayat, Phoop, District Bhind directed for reinstatement of appellant on the post of Revenue Sub Inspector. By resolution dated 27-2-2004, it was decided by the Nagar Panchayat to regularise the services of appellant on the post of Revenue Sub Inspector and accordingly by order dated 8-7-2004, the services of appellant were regularised. However, by the impugned order dated 4-2-2009, the order of regularisation of services of appellant was cancelled and it was directed that Urban Administration and Development Department be informed about compliance of the said order by 25/2/2009. 3. Challenging the said order, appellant preferred W.P. No. 697/2009. The said writ petition was dismissed by Coordinate Bench of this Court by order dated 16-11-2018. Being aggrieved by the said order, the petitioner preferred a writ appeal which was registered as W.A. No. 1662/2018. However, by order dated 30-11-2018, appellant was permitted to withdraw the appeal with liberty to file a review petition. The said writ petition was dismissed by Coordinate Bench of this Court by order dated 16-11-2018. Being aggrieved by the said order, the petitioner preferred a writ appeal which was registered as W.A. No. 1662/2018. However, by order dated 30-11-2018, appellant was permitted to withdraw the appeal with liberty to file a review petition. Accordingly Review Petition No. 1811/2018 was filed which has been dismissed by learned Single Judge by order dated 7-2-2019. 4. It is contended by counsel for appellant that one of the basic arguments before the writ Court was that before cancelling the order of regularisation, no opportunity of hearing was given to the appellant, whereas it was the case of respondents that appointment of appellant was not in accordance with law and no vacant post was available for the post of Revenue Sub Inspector, therefore, even if no opportunity of hearing was given to the appellant still by applying the principle of useless formality no prejudice was caused to the appellant. It is submitted that the petition filed by the appellant was dismissed after applying the principle of useless formality and it was held that petitioner had enjoyed a long stint without any legal sanction and his illegal regularisation was contrary to the mandate of law. It is submitted by counsel for appellant that appellant had specifically claimed that he was appointed in accordance with law. It is further submitted that the writ Court by order dated 23-8-2018 had directed the respondents to produce the record to show as to whether any advertisement was issued in compliance of Rule 11 of Madhya Pradesh Municipal Employees (Recruitment and Conditions of Service Rules), 1968 (for short "the Rules of 1968") or not or any list of advertisement so issued in which the advertisement was publishedand it was directed that complete record be produced and the concerned Chief Municipal Officer was directed to remain present along with the original record on 24/8/2018. On 24-8-2018 a specific statement was made by Chief Municipal Officer, Municipal Council, Phoop that the record is in possession of the Deputy Director of the Urban Administration and Development Department, Gwalior and accordingly, some time was sought to produce the record, but later on the record was never produced. It is submitted that, therefore, under these circumstances an adverse inference should have been drawn against the respondents. It is submitted that, therefore, under these circumstances an adverse inference should have been drawn against the respondents. It is further submitted that as per Rule 11 of 1968 Rules, the Chief Municipal Officer or the District Selection Committee has to notify the vacancies to the local Employment Exchange in the form and manner prescribed under the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 and shall advertise the vacancies in the local newspapers announcing the number of the candidates to be recruited and shall invite applications on the prescribed form within such time as may be specified in the notice. On receipt of the applications the Chief Municipal Officer or the District Selection Committee, as the case may be, shall scrutinize the applications with the list of candidates received from the Employment Exchange, interview such of the candidates as prima facie suitable and arrange the names of the candidates who are more suitable for appointment in the order of preference. It is submitted that once the appellant had specifically claimed that the procedure as laid down in Rule 11 of the Rules of 1968 was followed before appointment of appellant, then the entire burden was on the respondents to prove that initial appointment of the appellant was not in accordance with law. Furthermore, when a specific direction was given by the Court to produce the record and the Chief Municipal Officer had also made statement that the record is in the office of Deputy Director, Urban Administration and Development Department, and then decided not to produce the record, then adverse inference has to be drawn against the respondent. Thus it is submitted that non-grant of opportunity of hearing before cancelling the order of regularisation of appellant has seriously prejudiced the appellant, therefore the order passed by the learned Single Judge requires interference. 5. Per contra, the appeal is vehemently opposed by counsel for the respondent. It is submitted that there was no vacant post for regularisation of appellant and it was further submitted that the appointment of appellant was not in accordance with law. 6. Heard learned counsel for the parties. 7. The first question for consideration is as to whether principle of useless formality can be applied to uphold an order passed by the respondent without extending an opportunity of hearing or not ? 8. 6. Heard learned counsel for the parties. 7. The first question for consideration is as to whether principle of useless formality can be applied to uphold an order passed by the respondent without extending an opportunity of hearing or not ? 8. Principle of useless formality which suggests that breach of natural justice can be excused if outcome would have been the same, is not absolute and is subject to exceptions and judicial interpretation. It is true that principle of natural justice has undergone various changes and an order cannot be set aside merely on the ground of violation of principles of natural justice and the person complaining violation of such order has to justify that he has suffered prejudice, but where the pleadings of the parties can be adjudicatedon the basis of record and if the respondents have failed to produce the record in spite of direction given by the Court then for the purposes of the writ petition as well as for the purposes of considering as to whether principle of useless formality can be applied or not, adverse inference can be drawn against the respondents. 9. Section 114 of the Evidence Act enables the Court to draw adverse inference if a party does not produce relevant record. 10. The Supreme Court in the case of Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 has held as under:- Presumption under Section 114 Illustration (g) of the Evidence Act 12. Generally, it is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and in case such material evidence is withheld, the court may draw adverse inference under Section 114 Illustration (g) of the Evidence Act notwithstanding, that the onus of proof did not lie on such party and it was not called upon to produce the said evidence. [Vide Murugesam Pillai v. Manickavasaka Pandara [(1916-17) 44 IA 98 : AIR 1917 PC 6 ] , Hiralal v. Badkulal [(1953) 1 SCC 400 : AIR 1953 SC 225 ] , A. Raghavamma v. A. Chenchamma [ AIR 1964 SC 136 ] , Union of India v. Mahadeolal Prabhu Dayal [ AIR 1965 SC 1755 ] , Gopal Krishnaji Ketkar v. Mohd. Haji Latif [ AIR 1968 SC 1413 ] , BHEL v. State of U.P. [ (2003) 6 SCC 528 : 2004 SCC (L&S) 506 : AIR 2003 SC 3024 ] , Mussauddin Ahmed v. State of Assam [ (2009) 14 SCC 541 : (2010) 1 SCC (Cri) 1445 : AIR 2010 SC 3813 ] and Khatri Hotels (P) Ltd. v. Union of India [ (2011) 9 SCC 126 : (2011) 4 SCC (Civ) 484] .] 13. However, in Bilas Kunwar v. Desraj Ranjit Singh [(1914-15) 42 IA 202 : AIR 1915 PC 96 ] a view has been expressed that it is open to a litigant to refrain from producing any document that he considers irrelevant; if the other litigant is dissatisfied, it is for him to apply for interrogatories/inspections and production of documents. If he fails to do so, neither he nor the court at his suggestion, is entitled to draw any inference as to the contents of any such documents. 14. In Kamma Otukunta Ram Naidu v. Chereddy Pedda Subba Reddy [ (2003) 11 SCC 293 : 2004 SCC (Cri) 155 : AIR 2003 SC 3342 ] this Court held that all the pros and cons must be examined before drawing an adverse inference against a party. In that case the issue had been, as to whether two persons had been travellingtogether in the vehicle and presumption had been drawn only on the basis that the bus tickets of both the persons were not produced. This Court held that presumption could not have been drawn if other larger evidence was shown to the contrary. (See also Mohinder Kaur v. Kusam Anand [ (2000) 4 SCC 214 ] and Takhaji Hiraji v. Thakore Kubersing Chamansing [ (2001) 6 SCC 145 : 2001 SCC (Cri) 1070 : AIR 2001 SC 2328 ] .) 15. In Municipal Corpn., Faridabad v. Siri Niwas [ (2004) 8 SCC 195 : 2004 SCC (L&S) 1062] this Court has taken the view that the law laid down by this Court in Gopal Krishnaji Ketkar [ AIR 1968 SC 1413 ] did not lay down any law, that in all situations the presumption in terms of Illustration (g) to Section 114 of the Evidence Act must be drawn. 16. 16. In Srinivas Ramanuj Das v. Surjanarayan Das [ AIR 1967 SC 256 ] this Court held that mere withholding of documentary evidence by a party is not enough to draw adverse inference against him. The other party must ask the party in possession of such evidence to produce the same, and in case the party in possession does not produce it, adverse inference may be drawn : (AIR p. 263, para 28) “28. … It is true that the defendant-respondent also did not call upon the plaintiff-appellant to produce the documents whose existence was admitted by one or the other witness of the plaintiff and that, therefore, strictly speaking, no inference adverse to the plaintiff can be drawn from his non-producing the list of documents. The court may not be in a position to conclude from such omission that those documents would have directly established the case for the respondent. But it can take into consideration in weighing the evidence or any direct inferences from established facts that the documents might have favoured the respondent's case.” (emphasis supplied) 17. In Ramrati Kuer v. Dwarika Prasad Singh [AIR 1967 SC 1134] this Court held : (AIR p. 1137, para 9) “9. … It is true that Dwarika Prasad Singh said that his father used to keep accounts. But no attempt was made on behalf of the appellant to ask the court to order Dwarika Prasad Singh to produce the accounts. An adverse inference could only have been drawn against the plaintiff-respondents if the appellant had asked the court to order them to produce accounts and they had failed to produce them after admitting that Basekhi Singh used to keep accounts. But no such prayer was made to the court, and in the circumstances no adverse inference could be drawn from the non-production of accounts.” (emphasis supplied) (See also Ravi Yashwant Bhoir v. Collector [ (2012) 4 SCC 407 : AIR 2012 SC 1339 ] .) 18. In Indira Kaur v. Sheo Lal Kapoor [ (1988) 2 SCC 488 : AIR 1988 SC 1074 ] the lower courts drew an adverse inference againstthe appellant-plaintiff on the ground that the plaintiff was not ready and willing to perform his part of the contract. The question arose as to whether the party had the means to pay. In Indira Kaur v. Sheo Lal Kapoor [ (1988) 2 SCC 488 : AIR 1988 SC 1074 ] the lower courts drew an adverse inference againstthe appellant-plaintiff on the ground that the plaintiff was not ready and willing to perform his part of the contract. The question arose as to whether the party had the means to pay. The Court further held that before the adverse inference is drawn against a particular party, the conduct and diligence of the other party is also to be examined. Where a person deposed that as he had deposited the money in the bank and the other party did not even ask as on what date and in which bank the amount had been deposited and did not remain diligent enough, the question of drawing adverse inference against such a person for not producing the passbook, etc. cannot be drawn. 19. In Mahendra L. Jain v. Indore Development Authority [ (2005) 1 SCC 639 : 2005 SCC (L&S) 154] this Court held that mere non- production of documents would not result in adverse inference. If a document was called for in the absence of any pleadings, the same was not relevant. An adverse inference need not necessarily be drawn only because it would be lawful to do so. 20. In RBI v. S. Mani [ (2005) 5 SCC 100 : 2005 SCC (L&S) 609] this Court dealt with the issue wherein the Industrial Tribunal directed the employer to produce the attendance register in respect of the first party workmen. The explanation of the appellant was that the attendance registers being very old, could not be produced. The Tribunal, however, in its award noticed the same and drew an adverse inference against the appellants for non-production of the attendance register alone. This Court reversed the finding observing : (SCC p. 113, paras 27-28) “27. As noticed hereinbefore, in this case also the respondents did not adduce any evidence whatsoever. Thus, in the facts and circumstances of the case, the Tribunal erred in drawing an adverse inference. Burden of proof 28. The initial burden of proof was on the workmen to show that they had completed 240 days of service. The Tribunal did not consider the question from that angle. Thus, in the facts and circumstances of the case, the Tribunal erred in drawing an adverse inference. Burden of proof 28. The initial burden of proof was on the workmen to show that they had completed 240 days of service. The Tribunal did not consider the question from that angle. It held that the burden of proof was upon the appellant on the premise that they have failed to prove their plea of abandonment of service.” (emphasis supplied) (See also A. Jayachandra v. Aneel Kaur [ (2005) 2 SCC 22 : AIR 2005 SC 534 ] , R.M. Yellatti v. Executive Engineer [ (2006) 1 SCC 106 : 2006 SCC (L&S) 1 : AIR 2006 SC 355 ] and Pratap Singh v. State of M.P. [ (2005) 13 SCC 624 : (2006) 2 SCC (Cri) 284 : AIR 2006 SC 514 ] ) 21. Order 11 CPC contains certain provisions with the object to save expense by obtaining information as to material facts and to obtain admission of any fact which he has to prove on any issue. Therefore, a party has a right to submit interrogatories relating to the same matter in issue. The expression “matter” means a question or issue in dispute in the action and not the thing about which such dispute arises. The object of introducing such provision is to secure all material documents and to put an end toprotracted enquiry with respect to document/material in possession of the other party. In such a fact situation, no adverse inference can be drawn against a party for non-production of a document unless notice is served and procedure is followed. 22. Under Rule 14 of Order 11, the court is competent to direct any party to produce the document asked by the other party which is in his possession or power and relating to any material in question in such suit. Rule 15 Order 11 provides for inspection of documents referred to in the pleadings or affidavits. Rule 18 thereof empowers the court to issue order for inspection. Rule 15 Order 11 provides for inspection of documents referred to in the pleadings or affidavits. Rule 18 thereof empowers the court to issue order for inspection. Rule 21 thereof provides for very stringent consequences for non- compliance with the order of discovery, as in view of the said provisions in case the party fails to comply with any order to answer interrogatories or for discovery or inspection of documents, he shall, if he is a plaintiff, be liable to have his suit dismissed for want of prosecution and if he is 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. 23. Thus, in view of the above, the suit may be dismissed for non- compliance with the aforesaid orders by the plaintiff and the plaintiff shall also be precluded from bringing a fresh suit on the same cause of action. Similarly, the defence of the defendant may be struck off for non-compliance with such orders. 24. Thus, in view of the above, the law on the issue can be summarised to the effect that the issue of drawing adverse inference is required to be decided by the court taking into consideration the pleadings of the parties and by deciding whether any document/evidence, withheld, has any relevance at all or omission of its production would directly establish the case of the other side. The court cannot lose sight of the fact that burden of proof is on the party which makes a factual averment. The court has to consider further as to whether the other side could file interrogatories or apply for inspection and production of the documents, etc. as is required under Order 11 CPC. Conduct and diligence of the other party is also of paramount importance. Presumption of adverse inference for non-production of evidence is always optional and a relevant factor to be considered in the background of facts involved in the case. Existence of some other circumstances may justify non-production of such documents on some reasonable grounds. Conduct and diligence of the other party is also of paramount importance. Presumption of adverse inference for non-production of evidence is always optional and a relevant factor to be considered in the background of facts involved in the case. Existence of some other circumstances may justify non-production of such documents on some reasonable grounds. In case one party has asked the court to direct the other side to produce the document and the other side failed to comply with the court's order, the court may be justified in drawing the adverse inference. All the pros and cons must be examined before the adverse inference is drawn. Such presumption is permissible, if other larger evidence is shown to the contrary. 11. It is submitted by counsel for respondents that respondents have specifically pleaded that appointment of appellant was contrary to law and, therefore, non production of record, by itself, would not be sufficient to draw an adverse inference against the respondent. 12. Considered the submission made by counsel for respondents. 13. If respondents had made pleadings on the basis of record, then nothing had prevented them from producing it before the Court, specifically when existence of record was never denied by the respondents. If in spite of the order passed by this Court, respondents are not ready to produce the record, then it may give an impression in the mind of the Court that something is fishy which respondents want to hide. 14. Furthermore, the Supreme Court in the case of State of Karnataka vs. Uma Devi, reported in (2006) 4 SCC 1 has held that regularization, if any already made, but not sub-judice, need not be reopened based on the said judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme. 15. Under these circumstances, this Court is of considered opinion that where respondents were not ready to produce the record in spite of directions given by this Court, then non grant of opportunity of hearing cannot be said to be a useless formality. Therefore, the order dated 16-11-2018 passed by learned Single Judge in W.P. No. 697/2009, as well as, order dated 7/2/2019 passed by learned Single Judge in R.P. No.1811/2018, requires interference. 16. Therefore, the order dated 16-11-2018 passed by learned Single Judge in W.P. No. 697/2009, as well as, order dated 7/2/2019 passed by learned Single Judge in R.P. No.1811/2018, requires interference. 16. It is submitted by counsel for appellant that appellant is still working by virtue of interim orders passed by this Court from time to time. 17. Accordingly, writ petition filed by appellant is, hereby, allowed and order dated 4/2/2009 passed by Under Secretary, State of M.P., Urban Administration and Development Department, Bhopal in file No. F 4- 171/04/18-3 is, hereby, set aside. Order dated 16-11-2018 passed by learned Single Judge in W.P. No.697/2009, as well as, order dated 7/2/2019 passed by learned Single Judge in R.P. No.1811/2018 are hereby set aside. 18. Matter is remanded back to the Urban Administration and Development Department to issue notice thereby calling upon the petitioner to show cause as to why his regularization may not be cancelled and shall also provide the petitioner all the necessary documents on which the department wants to place reliance. The department of Urban administration and Development shall decide the matter afresh without getting influenced or prejudiced by order dated 4/2/2009. Let notice be issued within a period of two months from today. 19. With aforesaid observations, this appeal is allowed.