These cases clearly establish the principle that the noncompliance
with an order under O. 11 R. 14 does not and cannot
warrant the dismissal of the suit of a plaintiff or the striking off
of the defence of the party which is guilty of the noncompliance
of the order as such non-compliance does not fall
within the ambit of the three grounds which are stated in the
rule and which only would justify the striking off of the
defence. It may further be pointed out in this connection that
where a party fails to produce certain documents under O. 11
R. 14, the Court would be entitled to raise an adverse
presumption against the party on account of the non-production
of the documents required, but that would not justify its
dismissing a suit in the case of a plaintiff or striking off of the
defence in the case of a defendant. It has to be emphasised in
this connection, and I would do so even at the risk of repetition,
that the provisions of this rule are of a very drastic nature, and it
is only in rare cases that the penalty contemplated under the
rule should be resorted to. Bearing these principles in mind, I
have no hesitation in coming to the conclusion that the order
passed by the Court of first instance dismissing the suit of the
plaintiff was wholly without justification and that in passing
that order the Court exercised jurisdiction which did not vest in
it in accordance with law. ……….”
(underlining supplied)
21. The consistent view taken by various High Courts across the country
for a considerably long period of time i.e. nearly over 90 years is that an
order under 11 order rule 14 is merely an order to produce documents. Non
compliance of the said order may have several consequences, but the set of
consequences as stipulated by order 11 rule 21 is not one of them. The court
is not given discretion under rule 21 to dismiss the suit for non prosecution
or strike out the defence in case of non compliance of the order of
production. Various other measures may be available/consequences
provided for dealing with a failure to comply with an order of production
under order 11 rule 14, however, we are not in the present case called upon
to deal with the said issue.
22. The impugned order is an order made under Order 11, Rule 14, The
non-compliance of that order does not warrant the striking out of the defence
of the appellant. The grounds upon which the discretion is given to a Court
to strike out the defence of a defendant are given in Rule 21 of Order 11
CPC. According to the said rule, there are three grounds only upon which a
Court is justified in striking out the defence of a defendant or in dismissing
the suit of a plaintiff, namely, (1) the refusal to answer interrogatories, (2)
the refusal to make discovery of documents, (3) refusal to permit inspection
of documents. Rule 14 of Order 11 CPC does not relate either to the
answering of interrogatories or the discovery or inspection of documents.
The rule relating to discovery is embodied in Rule 12 of Order 11 and the
rule relating to the inspection of documents is to be found in Rule 18 of
order 11. In the present case the learned Judge has not passed any order
either under Rule 12 or Rule 18 of Order 11 CPC. An order under Rule 14 is
clearly not covered within the ambit of rule 21.
23. Further, an order for production under order 11 rule 14 CPC does not
decide or affect any vital and valuable rights of the parties or decide matters
of moment. In any event, prior to passing any order under order 11 rule 21,
the court is to put the defaulting party to notice and give him an opportunity
of being heard. The impugned order does not satisfy the test as laid down in
Shah Babulal Khimji (Supra) and as such the present appeal is not
maintainable.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 19th January, 2016
FAO(OS) 458/2015 & CM No. 15177/2015
MAJ RETD SUKESH BEHL & ANR ..... Appellants
versus
KONINKLIJKE PHILIPS ELECTRONICS N V ..... Respondent
CORAM:-
HON’BLE MR JUSTICE BADAR DURREZ AHMED
HON’BLE MR JUSTICE SANJEEV SACHDEVA
1. The appellant (defendant in the suit) has filed the present appeal
impugning the order dated 20.07.2015 whereby the application filed by the
respondent (plaintiff in the suit) under Order 11 Rules 12, 14 and 21 of the
Code of Civil Procedure (hereinafter referred to as the CPC) has been
allowed and the appellant has been directed to produce on oath the
documents referred to in the said application.
2. The appellant has contended that the respondent, to prove its claim for
damages, had to produce evidence on its own and the appellant could not be
compelled to produce documents in respect of issues, the onus of which is
on the respondent. The appellant has further contended that an order for
production of documents could only be passed only in respect of documents
relating to any matter in question in the suit and as there were neither any
pleadings nor any issue with regard to the claim of damages so there could
not be any order for production of the documents. It is contended that the
documents, the production of which is sought by the respondent, are
accounts and sales related documents of the appellant and in the absence of
any pleadings/issue in respect of damages, the appellant could not be
directed to produce his accounts and other related documents. It is
contended that the respondent had to plead specific facts constituting the
nature and extent of damages or loss caused to it and the appellant could not
be called upon to produce his accounts related information so as prove his
defence in the negative. It is further contended that the appellant has already
stated on oath that the documents sought to be produced could not be
located by him and as such there could be no direction for production more
so in view of the fact that non compliance of the said direction could
gravely prejudice the appellant and his defence would be liable to be struck
of under order 11 rule 21 CPC.
3. The learned counsel for the respondent has contended that the
documents are very much in the power and possession of the appellant and
he has rightly been directed to produce the same. It is further contended
that the documents are relating to the mattes in question in the suit and their
production can be sought/directed. Without prejudice to the submissions on
merits, the learned counsel for the respondent has raised a preliminary
objection as to maintainability of the appeal contended that the impugned
order is not an order deciding any rights of the parties and is not an order in
the nature of a judgment having a bearing on the rights and liabilities of the
parties and thus no appeal is maintainable.
4. Before we go on to decide the merits of the appeal, we are examining
the preliminary objection raised with regard to maintainability of the
appeal. In case we conclude that the appeal is not maintainable, we would
not be required to examine the impugned order on merits.
5. Encompassed in the question whether the present appeal is
maintainable is the question whether the consequences of dismissal of suit
or of striking of the defence as prescribed by Order 11 Rule 21 can follow
in respect of failure to comply with directions, to produce documents,
issued under Order 11 Rule 14 of the CPC.
6. In Shah Babulal Khimji v. Jayaben D. Kania, (1981) 4 SCC 8, the
Supreme Court held that for an order to be appealable, it has to satisfy the
requirements of a judgment in other words, the order is such that it affects
vital and valuable rights of the parties and decides matters of moment.
7. In the present case, the appellant has been directed to produce
documents in exercise of powers under order 11 rule 14 CPC. The order
directing production of documents does not by itself affect any vital and
valuable rights of the parties and does not decide matters of moment. If the
consequences of failure to produce documents in compliance of the order
under order 11 rule 14 were severe, then situation may be different. To
determine what are the consequences of failure to comply with such a order
we need to examine the relevant provisions and also as to how various
courts over the years have interpreted the same.
8. Order 11 Rule 14 of the CPC reads as under:-
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 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.
9. Order 11 Rule 14 empowers the Court at any point to order production
of such documents relating to any matter in question in a suit as are in the
power and possession of a party as the Court thinks right. On production of
the documents, the Court is empowered to deal with such documents as
appears to Court to be just.
10. Order 11 Rule 21 reads as under: -
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.
11. The question is whether the consequences of dismissal of the suit or
striking out defence can follow for failure to comply with the order for
production under order 11 rule 14. Order 11 Rule 21 envisages that where
any party fails to comply any order to answer interrogatories, or for
discovery or inspection of documents, if it were to be the plaintiff then the
suit is liable to be dismissed for want of prosecution and if non compliance
was by the defendant then his defence, if any, is liable to be struck out and
he is to be placed in the same position as if he has not defended the suit.
12. We would like to examine the interpretation give by the various High
Courts over the years as to whether the consequences of order 11 rule 21 can
follow in case of non compliance of an order passed for production of
documents under order 11 rule 14.
13. Krishnan, J. of High Court of Judicature at Madras in Sithamalli
Subbayyer Vs. M.L.M. Ramanathan Chettiar (1924) 46 MLJ 350 held as
under:
“2. Rule 21 in terms does not apply to an order for
production it speaks only of interrogatories or discovery or
inspection. In the repealed Code the words " or production "
were in the corresponding section but they have been omitted in
the new Code. It is argued that the omission is due to a desire to
avoid redundancy, as an order for production implied discovery
and inspection. The opinion of Broadway J., of the Lahore High
Court in the case Ramnath v. Parabhu Dayal (1921) 65 IC
661 is cited in support of the argument that the object of the
omission was to avoid redundancy. The learned Judge does not
give a very decided opinion on the point nor has he discussed
the question. On the other hand a Bench of the Allahabad High
Court* has held that Rule 21 does not apply to case of "
production " orders. With all respect to the opinion of the
learned Judge of the Lahore Court I am unable to follow his
view. In the corresponding English Rule, Order 31 Rule 21 of
the English rules of Practice, the words " or production " do not
occur and it was apparently to bring the practice here into
conformity with the English practice on the point that the
omission was made. An order for production is quite different
from an order for discovery or an order for inspection and
cannot be said to imply either. In the present case the order for
discovery was refused and the order for inspection was passed
as a subsequent order. It is impossible to hold therefore that in
the present case the order for production was anything more
than for bare production in Court of specified documents. In the
case Joy v. Hadley Cited in 22 Ch. D. 571 the order was for
production and inspection it was in reality an order for
inspection in Court of documents to be produced in Court for
the purpose. That case is thus not an authority on the point
before us. Some support was sought to be drawn from the
wording of the Form 6 under Order 11 Rule 14, first Schedule,
Appendix C of the Code. That form can be properly used only
where the order is " to produce for inspection " as the title of the
form shows. Rule 14 contemplates further orders being-passed
on the documents being produced. An order for inspection of
documents may, I think, therefore be passed under that rule
itself after hearing parties; Rule 18 also enables a party to
obtain an order for inspection. The form 6 cannot be relied on
as showing that an order under Rule 14 involves an order for
inspection, for documents may be directed to be produced in
Court for various other reasons, for example, for preventing
tampering with them.
3. It was suggested that if we do not apply the provisions of
Rule 21 in cases of orders for production there will not be a
sufficiently effective method to make the party obey the order
of the Court. There is no basis for this argument, for there are
several ways of making a party produce a document shown to
be in his possession and for which privilege is not established;
and the presumption that arises against a party who is called
upon and does not produce a document in his possession or
power is in itself of serious consequence to him.
4. In the view I take that Rule 21 does not apply to orders
for production, the appeal fails. It is true that plaintiff has not
definitely stated in his affidavit whether he has the chitta books
with him or not. Defendant may apply to the lower Court to call
for a further affidavit from him. Defendant can always take any
further steps, he may be advised to, under the rules for
inspection. This appeal fails and is dismissed with costs.”
(underlining supplied)
14. In The Lyalpur Sugar Mills and Co. And Anr.
Vs. The Ram Chandra Gur Sahai Cotton Mills and Co. through Sri Ram
AIR 1922 All 235, the Division Bnech of Allahabad High Court held as
under:
“All the applications on behalf of the plaintiff firm except the
last one dated the 28th July 1919, were applications under
Order XI, Rule 14. They were merely for the production of
documents into Court. At the first blush it does appear that the
conduct of Jai Ram Das was contumacious, but we find that
there is evidence on the record to show that as early as the 31st
May 1919 in answer to the interrogatories served upon him by
the plaintiff firm he had stated distinctly that the documents that
were called for from him were not in his possession. But if it be
conceded for the sake of argument for a moment that Jai Ram
Das was guilty of disobedience of the order of the Court, was
the Court justified in striking off his defence? The order of the
Court to Jai Ram Das to produce the books was an order made
under Order XI, Rule 14, The non-compliance of that order
does not warrant the striking off the defence of the party, which
is guilty of the not-compliance of the order. The grounds upon
which the discretion is given to a Trial Court for striking off the
defence of a defendant are given in Rule 21 of Order XI of the
Civil Procedure Code. According to the said rule there are three
grounds only upon which a Trial Court is justified in striking
off the defence of a defendant or dismiss the suit of a plaintiff,
namely, (1) the refusal to answer interrogatories, (2) the refusal
to make discovery of documents, (3) refusal to permit
inspection of documents. Now, Rule 14 of Order XI of the
Code of Civil Procedure does not relate either to the answering
of interrogatories or the discovery or inspection of documents.
The rule relating to discovery is embodied in Rule 12 of Order
XI and the rule relating to the inspection of documents is to be
found in Rule 18 of the same Order. In the present case the
learned Subordinate Judge made no order either under Rule 12
or Rule 18 of Order XI of the Code of Civil Procedure. It is,
however, contended on behalf of the plaintiff firm that the
notice, which was issued to Jai Ram Das, was one that required
inspection of documents called for from him. The form of
notice to be issued under Order XI, Rule 14 is given in
appendix C, Form No. 6. The notice that was issued in the
present case does not comply with the Form given in Appendix
C.”
(Underlining supplied)
15. In Koduri Krishnarao Versus. State of Andhra Pradesh, Hyderabad
AIR 1962 AP 249 a Division Bench of Andhra Pradesh High Court held that
“A plain reading of O. XI, R. 21 shows that the Court could have invoked
the penal provisions of that rule only if there had been an order to answer
interrogatories or for discovery or for inspection of documents under
Rules 11, 22, and 18 of O. XI.”
16. In Sahu Munnalal versus Tara and Anr AIR 1929 All 83 the
Allahabad High Court held as under:
“The second reason why I consider the order of the Assistant
Collector to be without jurisdiction is that the penalty does not
attach to an order for the production of documents. This follows
from what I have already stated. The penalty does not arise
from any action of the Court but arises from an action of a
party. Under Rule 14, the Court is permitted to order production
and on failure of such production, there is no penalty because
Rule 21 does not permit of a penalty on the motion of the
Court. It is only where a party makes application and fails to
obtain the evidence, which it seeks, from the opposite party that
the penalty of Rule 21 follows. There is thus a very clear
distinction between Rule 14 and Rules 6 to 8, 12 and 15. Rules
6 to 8, 12 and 15 apply to parties who have been given the right
to move for serving of interrogatories, for discovery of
documents and for inspection thereof as regards matter within
the knowledge of the other party and documents within the
control of the other party. Rule 21 does not apply without a
party making a motion and, therefore, no penalty can attach to
Rule 14 because under that rule the Court acts of itself and not
on the motion of a party. There is a recent judgment of a Bench
of two Judges of the Madras High Court in which it was held
that Order XI, Rule 21 of the Code of Civil Procedure did not
justify the dismissal of a suit for non-compliance with an order
under Order XI, Rule 14 of the Civil Procedure Code for
production of documents [Sithamalli Subayyer v. Ramanathan
Chettiar, A.I.R. 1924 Mad. 582.]”
(underlining supplied)
17. In Chinnappan versus Ramachandran, AIR 1989 Mad 314, the
High Court of Judicature at Madras following the decision in Sithamalli
Subbayyer (Supra) held as under:
“It may now be considered whether the application filed by the
appellant before the court below for the exercise of powers
under Order 11, Rule 21, C.P.C. was maintainable. Order 11,
Rule 21, C.P.C. to the extent to which that provision is relevant
on the facts of this case, states that where any party fails to
comply with any order to answer interrogatories, or for
discovery or inspection of documents, he shall, if a defendant,
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. It is thus
seen that the remedy of having the defence of a defendant
struck out would arise only when he fails to comply with an
order to answer interrogatories or for discovery or inspection of
documents and not in other cases. In this case, the respondent
was not delivered interrogatories for being answered by an
order of Court under Order 11, Rule 1, C.P.C. Likewise, the
respondent was not directed by an order of court to make
discovery on oath of the documents in his possession or power
relating to any matter in question in the suit under Order 11,
Rule 12, C.P.C. No order for inspection of documents was also
passed against the respondent under Order 11, Rule 12, C.P.C.
The exercise of the power vested in the Court to strike out the
defence of a defendant and to place him in the same position as
if he had not defended the suit is limited under Order 11,
Rule 21, C.P.C. to cases where the defendant fails to comply
with an order to answer interrogatories or an order for discovery
or inspection of documents. In other words, an order under
Order 11, Rule 21, C.P.C. cannot be passed in cases falling
outside the purview of Order 11, Rules 12 and 18; C.P.C. In
Sithamalli Subbayer v. Ramanathan Chettiar : (1924) 46 MLJ
350, an order was passed by Court under Order 11, Rule 14,
C.P.C. directing the plaintiff to produce some documents upon
oath and on the production of some, documents, the defendant
inspected a few of them and finding that some documents
directed to be produced were not produced, applied to the court
to take action under Order 11, Rule 21, C.P.C. dismissing the
suit. That application was dismissed holding that Order 11,
Rule 21, C.P.C. did not apply to cases of non-compliance with
an order for production and, the dismissal of the application
was upheld by this Court.
It is clear from the decision referred to above, that failure to
produce documents directed to be produced by an order of
Court passed under Order 11, Rule 14, C.P.C. does not fall
under Order 11, Rule 21, C.P.C. To similar effect is the
decision in Subramania Iyer v. Bonier Cooty Haji: AIR 1933
Mad 870. In that case also, for failure to produce certain
documents pursuant to orders passed under Order 11, Rule 14,
C.P.C. the suit was dismissed and in considering the correctness
of this order, Pandalai J. observed as follows -
"..........From the terms of the Judge's order as well
as from the previous orders for production which
are on the record, there is no doubt that those
orders were passed under Order 11, Rule 14,
C.P.C. and that respondent-defendant No. 1
applied for orders under that provision. This being
so, it would be enough to dispose of this appeal to
say that the learned Judge had no authority to
dismiss the plaintiffs suit for disobedience of an
order under Order 11, Rule 14, C.P.C. That was
decided in so far as this Court is concerned in
Subbayer v. Ramanathan Chettiar : (1924) 46
MLJ 350 which followed a decision of the
Allahabad High Court in Lyalpur Sugar Mills Co.
Ltd. v. Ramchandra Gursahai Cotton Mills Co.
Ltd : AIR 1922 All 235 "
It is thus seen that this Court has consistently taken the view
that a failure to produce documents directed to be produced by
an order of court passed under Order 11, Rule 14, C.P.C. does
not enable the court to exercise its powers under Order 11,
Rule 21, C.P.C. In view of this, the application filed by the
appellant seeking the assistance of the court to exercise its
powers under Order 11, Rule 21, C.P.C. was misconceived and
not maintainable. ……..”
(Underlining supplied)
18. In M/s. Gur Prasad Shyam Babu and others
Versus State Bank of India and another AIR 1994 All 151, the Allahabad
High Court has held
“The main question which falls for determination in the present
case is as to whether the order which had been passed by the
trial Court on 21-8-1987 could be passed under O. 11, R.21,
C.P.C. …….
From the provisions of the aforesaid R. 21 it is thus clear that
the Court can exercise the power under the aforesaid rule in
three circumstances i.e. when a party fails to comply (a) with
any order to answer interrogatories; (b) with any order for
discovery of documents; and (c) with any order for inspection
of documents.
The learned counsel for the applicant has frankly conceded that
the order which had been passed by the trial Court on 16-7-
1987 did not fall in either of the three categories and was an
order of production of documents. I have also carefully
examined the order which has been passed by the trial Court
and I am of the opinion that the aforesaid order is only an order
for the production of documents. Such an order could be passed
by the Court below only under the provisions of Order 9, Rule
14, C.P.C. A bare perusal of Order 9, Rule 21 would show that
the suit could not be dismissed for non-compliance of the
directions of Order 9, Rule 14, C.P.C. and at best the Court
could draw an adverse inference because of non-production of
the documents by the plaintiff. A Division Bench of this Court
in the case of Lyalpur S. M. Company v. Ram (AIR 1922 All
235) has also held that provisions of Order 11, Rule 21 are not
applicable to cases of non-compliance with Order for
production of documents under Order 11, Rule 14, C.P.C.
……..”
19. The Lahore High Court in Manohar Das Versus Darbara Singh and
Anr. AIR 1933 Lah 248 held as under:
“The defendant had been directed as a party to the suit to
produce his documents at a particular date and he failed to do
so. The only effect of his default could be that he might lose the
right to produce those documents at a later stage in support of
his case. The circumstances which enable a Court to strike off a
plaint or a defence under Order 11, Rule 21, had not come into
existence in this case. No interrogatories had been served upon
the defendant and no order for discovery or inspection of
documents such as is contemplated by Order 11 had been
passed.”
20. The High Court of Tripura in Shri Baba Shiva Sambhu and another
Versus Raj Mohan Deb Nath and others AIR 1966 Tri 16 held as under:
“Now, from the terms of O. 11, R. 21 set forth above, it is clear
that even assuming that the plaintiff had been called upon by
the Court to produce certain documents in original and that he
had failed to do so as the documents were lying with the
Settlement Department, it cannot be postulated that R. 21 is at
all attracted into application. Refusal to produce certain
documents (see O. 11 R.14) is not a lapse within the meaning of
R. 21 at all and, therefore, the penal consequences prescribed
thereunder could not have been imposed. There is ample
authority for holding that an order for production of documents
under R. 14 is not one of the orders contemplated under this
rule and, therefore, any disobedience thereto could not be
punished under O. 11 R. 21. See Lyalpur Sugar Mills and Co. v.
R.C.G. Sahai Cotton Mills and Co. : AIR 1922 All. 235;
Subbayyar v. Ramanathan Chettiar : AIR 1924 Mad 582;
Subramania Ayyar v. Bomer Cooly Haji : AIR 1933 Mad 870;
Manohar Das v. Darbara Singh: AIR 1933 Lah 248; Tafazzul v.
Shah Mohammad, : AIR 1949 All 261; Shamalal Guruprasad
v. Ganpatlal, AIR 1954 MP 65.
These cases clearly establish the principle that the noncompliance
with an order under O. 11 R. 14 does not and cannot
warrant the dismissal of the suit of a plaintiff or the striking off
of the defence of the party which is guilty of the noncompliance
of the order as such non-compliance does not fall
within the ambit of the three grounds which are stated in the
rule and which only would justify the striking off of the
defence. It may further be pointed out in this connection that
where a party fails to produce certain documents under O. 11
R. 14, the Court would be entitled to raise an adverse
presumption against the party on account of the non-production
of the documents required, but that would not justify its
dismissing a suit in the case of a plaintiff or striking off of the
defence in the case of a defendant. It has to be emphasised in
this connection, and I would do so even at the risk of repetition,
that the provisions of this rule are of a very drastic nature, and it
is only in rare cases that the penalty contemplated under the
rule should be resorted to. Bearing these principles in mind, I
have no hesitation in coming to the conclusion that the order
passed by the Court of first instance dismissing the suit of the
plaintiff was wholly without justification and that in passing
that order the Court exercised jurisdiction which did not vest in
it in accordance with law. ……….”
(underlining supplied)
21. The consistent view taken by various High Courts across the country
for a considerably long period of time i.e. nearly over 90 years is that an
order under 11 order rule 14 is merely an order to produce documents. Non
compliance of the said order may have several consequences, but the set of
consequences as stipulated by order 11 rule 21 is not one of them. The court
is not given discretion under rule 21 to dismiss the suit for non prosecution
or strike out the defence in case of non compliance of the order of
production. Various other measures may be available/consequences
provided for dealing with a failure to comply with an order of production
under order 11 rule 14, however, we are not in the present case called upon
to deal with the said issue.
22. The impugned order is an order made under Order 11, Rule 14, The
non-compliance of that order does not warrant the striking out of the defence
of the appellant. The grounds upon which the discretion is given to a Court
to strike out the defence of a defendant are given in Rule 21 of Order 11
CPC. According to the said rule, there are three grounds only upon which a
Court is justified in striking out the defence of a defendant or in dismissing
the suit of a plaintiff, namely, (1) the refusal to answer interrogatories, (2)
the refusal to make discovery of documents, (3) refusal to permit inspection
of documents. Rule 14 of Order 11 CPC does not relate either to the
answering of interrogatories or the discovery or inspection of documents.
The rule relating to discovery is embodied in Rule 12 of Order 11 and the
rule relating to the inspection of documents is to be found in Rule 18 of
order 11. In the present case the learned Judge has not passed any order
either under Rule 12 or Rule 18 of Order 11 CPC. An order under Rule 14 is
clearly not covered within the ambit of rule 21.
23. Further, an order for production under order 11 rule 14 CPC does not
decide or affect any vital and valuable rights of the parties or decide matters
of moment. In any event, prior to passing any order under order 11 rule 21,
the court is to put the defaulting party to notice and give him an opportunity
of being heard. The impugned order does not satisfy the test as laid down in
Shah Babulal Khimji (Supra) and as such the present appeal is not
maintainable.
24. Since we are of the view that the appeal is not maintainable, we are
not going into the question of relevancy of the documents or their
availability with the appellant or the issue qua production of secondary
evidence by the respondent.
25. In view of the above, the appeal is held to be not maintainable. The
appeal is accordingly dismissed leaving the parties to bear their own costs.
SANJEEV SACHDEVA, J
BADAR DURREZ AHMED, J
January 19 , 2016
Print Page
with an order under O. 11 R. 14 does not and cannot
warrant the dismissal of the suit of a plaintiff or the striking off
of the defence of the party which is guilty of the noncompliance
of the order as such non-compliance does not fall
within the ambit of the three grounds which are stated in the
rule and which only would justify the striking off of the
defence. It may further be pointed out in this connection that
where a party fails to produce certain documents under O. 11
R. 14, the Court would be entitled to raise an adverse
presumption against the party on account of the non-production
of the documents required, but that would not justify its
dismissing a suit in the case of a plaintiff or striking off of the
defence in the case of a defendant. It has to be emphasised in
this connection, and I would do so even at the risk of repetition,
that the provisions of this rule are of a very drastic nature, and it
is only in rare cases that the penalty contemplated under the
rule should be resorted to. Bearing these principles in mind, I
have no hesitation in coming to the conclusion that the order
passed by the Court of first instance dismissing the suit of the
plaintiff was wholly without justification and that in passing
that order the Court exercised jurisdiction which did not vest in
it in accordance with law. ……….”
(underlining supplied)
21. The consistent view taken by various High Courts across the country
for a considerably long period of time i.e. nearly over 90 years is that an
order under 11 order rule 14 is merely an order to produce documents. Non
compliance of the said order may have several consequences, but the set of
consequences as stipulated by order 11 rule 21 is not one of them. The court
is not given discretion under rule 21 to dismiss the suit for non prosecution
or strike out the defence in case of non compliance of the order of
production. Various other measures may be available/consequences
provided for dealing with a failure to comply with an order of production
under order 11 rule 14, however, we are not in the present case called upon
to deal with the said issue.
22. The impugned order is an order made under Order 11, Rule 14, The
non-compliance of that order does not warrant the striking out of the defence
of the appellant. The grounds upon which the discretion is given to a Court
to strike out the defence of a defendant are given in Rule 21 of Order 11
CPC. According to the said rule, there are three grounds only upon which a
Court is justified in striking out the defence of a defendant or in dismissing
the suit of a plaintiff, namely, (1) the refusal to answer interrogatories, (2)
the refusal to make discovery of documents, (3) refusal to permit inspection
of documents. Rule 14 of Order 11 CPC does not relate either to the
answering of interrogatories or the discovery or inspection of documents.
The rule relating to discovery is embodied in Rule 12 of Order 11 and the
rule relating to the inspection of documents is to be found in Rule 18 of
order 11. In the present case the learned Judge has not passed any order
either under Rule 12 or Rule 18 of Order 11 CPC. An order under Rule 14 is
clearly not covered within the ambit of rule 21.
23. Further, an order for production under order 11 rule 14 CPC does not
decide or affect any vital and valuable rights of the parties or decide matters
of moment. In any event, prior to passing any order under order 11 rule 21,
the court is to put the defaulting party to notice and give him an opportunity
of being heard. The impugned order does not satisfy the test as laid down in
Shah Babulal Khimji (Supra) and as such the present appeal is not
maintainable.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 19th January, 2016
FAO(OS) 458/2015 & CM No. 15177/2015
MAJ RETD SUKESH BEHL & ANR ..... Appellants
versus
KONINKLIJKE PHILIPS ELECTRONICS N V ..... Respondent
CORAM:-
HON’BLE MR JUSTICE BADAR DURREZ AHMED
HON’BLE MR JUSTICE SANJEEV SACHDEVA
1. The appellant (defendant in the suit) has filed the present appeal
impugning the order dated 20.07.2015 whereby the application filed by the
respondent (plaintiff in the suit) under Order 11 Rules 12, 14 and 21 of the
Code of Civil Procedure (hereinafter referred to as the CPC) has been
allowed and the appellant has been directed to produce on oath the
documents referred to in the said application.
2. The appellant has contended that the respondent, to prove its claim for
damages, had to produce evidence on its own and the appellant could not be
compelled to produce documents in respect of issues, the onus of which is
on the respondent. The appellant has further contended that an order for
production of documents could only be passed only in respect of documents
relating to any matter in question in the suit and as there were neither any
pleadings nor any issue with regard to the claim of damages so there could
not be any order for production of the documents. It is contended that the
documents, the production of which is sought by the respondent, are
accounts and sales related documents of the appellant and in the absence of
any pleadings/issue in respect of damages, the appellant could not be
directed to produce his accounts and other related documents. It is
contended that the respondent had to plead specific facts constituting the
nature and extent of damages or loss caused to it and the appellant could not
be called upon to produce his accounts related information so as prove his
defence in the negative. It is further contended that the appellant has already
stated on oath that the documents sought to be produced could not be
located by him and as such there could be no direction for production more
so in view of the fact that non compliance of the said direction could
gravely prejudice the appellant and his defence would be liable to be struck
of under order 11 rule 21 CPC.
3. The learned counsel for the respondent has contended that the
documents are very much in the power and possession of the appellant and
he has rightly been directed to produce the same. It is further contended
that the documents are relating to the mattes in question in the suit and their
production can be sought/directed. Without prejudice to the submissions on
merits, the learned counsel for the respondent has raised a preliminary
objection as to maintainability of the appeal contended that the impugned
order is not an order deciding any rights of the parties and is not an order in
the nature of a judgment having a bearing on the rights and liabilities of the
parties and thus no appeal is maintainable.
4. Before we go on to decide the merits of the appeal, we are examining
the preliminary objection raised with regard to maintainability of the
appeal. In case we conclude that the appeal is not maintainable, we would
not be required to examine the impugned order on merits.
5. Encompassed in the question whether the present appeal is
maintainable is the question whether the consequences of dismissal of suit
or of striking of the defence as prescribed by Order 11 Rule 21 can follow
in respect of failure to comply with directions, to produce documents,
issued under Order 11 Rule 14 of the CPC.
6. In Shah Babulal Khimji v. Jayaben D. Kania, (1981) 4 SCC 8, the
Supreme Court held that for an order to be appealable, it has to satisfy the
requirements of a judgment in other words, the order is such that it affects
vital and valuable rights of the parties and decides matters of moment.
7. In the present case, the appellant has been directed to produce
documents in exercise of powers under order 11 rule 14 CPC. The order
directing production of documents does not by itself affect any vital and
valuable rights of the parties and does not decide matters of moment. If the
consequences of failure to produce documents in compliance of the order
under order 11 rule 14 were severe, then situation may be different. To
determine what are the consequences of failure to comply with such a order
we need to examine the relevant provisions and also as to how various
courts over the years have interpreted the same.
8. Order 11 Rule 14 of the CPC reads as under:-
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 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.
9. Order 11 Rule 14 empowers the Court at any point to order production
of such documents relating to any matter in question in a suit as are in the
power and possession of a party as the Court thinks right. On production of
the documents, the Court is empowered to deal with such documents as
appears to Court to be just.
10. Order 11 Rule 21 reads as under: -
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.
11. The question is whether the consequences of dismissal of the suit or
striking out defence can follow for failure to comply with the order for
production under order 11 rule 14. Order 11 Rule 21 envisages that where
any party fails to comply any order to answer interrogatories, or for
discovery or inspection of documents, if it were to be the plaintiff then the
suit is liable to be dismissed for want of prosecution and if non compliance
was by the defendant then his defence, if any, is liable to be struck out and
he is to be placed in the same position as if he has not defended the suit.
12. We would like to examine the interpretation give by the various High
Courts over the years as to whether the consequences of order 11 rule 21 can
follow in case of non compliance of an order passed for production of
documents under order 11 rule 14.
13. Krishnan, J. of High Court of Judicature at Madras in Sithamalli
Subbayyer Vs. M.L.M. Ramanathan Chettiar (1924) 46 MLJ 350 held as
under:
“2. Rule 21 in terms does not apply to an order for
production it speaks only of interrogatories or discovery or
inspection. In the repealed Code the words " or production "
were in the corresponding section but they have been omitted in
the new Code. It is argued that the omission is due to a desire to
avoid redundancy, as an order for production implied discovery
and inspection. The opinion of Broadway J., of the Lahore High
Court in the case Ramnath v. Parabhu Dayal (1921) 65 IC
661 is cited in support of the argument that the object of the
omission was to avoid redundancy. The learned Judge does not
give a very decided opinion on the point nor has he discussed
the question. On the other hand a Bench of the Allahabad High
Court* has held that Rule 21 does not apply to case of "
production " orders. With all respect to the opinion of the
learned Judge of the Lahore Court I am unable to follow his
view. In the corresponding English Rule, Order 31 Rule 21 of
the English rules of Practice, the words " or production " do not
occur and it was apparently to bring the practice here into
conformity with the English practice on the point that the
omission was made. An order for production is quite different
from an order for discovery or an order for inspection and
cannot be said to imply either. In the present case the order for
discovery was refused and the order for inspection was passed
as a subsequent order. It is impossible to hold therefore that in
the present case the order for production was anything more
than for bare production in Court of specified documents. In the
case Joy v. Hadley Cited in 22 Ch. D. 571 the order was for
production and inspection it was in reality an order for
inspection in Court of documents to be produced in Court for
the purpose. That case is thus not an authority on the point
before us. Some support was sought to be drawn from the
wording of the Form 6 under Order 11 Rule 14, first Schedule,
Appendix C of the Code. That form can be properly used only
where the order is " to produce for inspection " as the title of the
form shows. Rule 14 contemplates further orders being-passed
on the documents being produced. An order for inspection of
documents may, I think, therefore be passed under that rule
itself after hearing parties; Rule 18 also enables a party to
obtain an order for inspection. The form 6 cannot be relied on
as showing that an order under Rule 14 involves an order for
inspection, for documents may be directed to be produced in
Court for various other reasons, for example, for preventing
tampering with them.
3. It was suggested that if we do not apply the provisions of
Rule 21 in cases of orders for production there will not be a
sufficiently effective method to make the party obey the order
of the Court. There is no basis for this argument, for there are
several ways of making a party produce a document shown to
be in his possession and for which privilege is not established;
and the presumption that arises against a party who is called
upon and does not produce a document in his possession or
power is in itself of serious consequence to him.
4. In the view I take that Rule 21 does not apply to orders
for production, the appeal fails. It is true that plaintiff has not
definitely stated in his affidavit whether he has the chitta books
with him or not. Defendant may apply to the lower Court to call
for a further affidavit from him. Defendant can always take any
further steps, he may be advised to, under the rules for
inspection. This appeal fails and is dismissed with costs.”
(underlining supplied)
14. In The Lyalpur Sugar Mills and Co. And Anr.
Vs. The Ram Chandra Gur Sahai Cotton Mills and Co. through Sri Ram
AIR 1922 All 235, the Division Bnech of Allahabad High Court held as
under:
“All the applications on behalf of the plaintiff firm except the
last one dated the 28th July 1919, were applications under
Order XI, Rule 14. They were merely for the production of
documents into Court. At the first blush it does appear that the
conduct of Jai Ram Das was contumacious, but we find that
there is evidence on the record to show that as early as the 31st
May 1919 in answer to the interrogatories served upon him by
the plaintiff firm he had stated distinctly that the documents that
were called for from him were not in his possession. But if it be
conceded for the sake of argument for a moment that Jai Ram
Das was guilty of disobedience of the order of the Court, was
the Court justified in striking off his defence? The order of the
Court to Jai Ram Das to produce the books was an order made
under Order XI, Rule 14, The non-compliance of that order
does not warrant the striking off the defence of the party, which
is guilty of the not-compliance of the order. The grounds upon
which the discretion is given to a Trial Court for striking off the
defence of a defendant are given in Rule 21 of Order XI of the
Civil Procedure Code. According to the said rule there are three
grounds only upon which a Trial Court is justified in striking
off the defence of a defendant or dismiss the suit of a plaintiff,
namely, (1) the refusal to answer interrogatories, (2) the refusal
to make discovery of documents, (3) refusal to permit
inspection of documents. Now, Rule 14 of Order XI of the
Code of Civil Procedure does not relate either to the answering
of interrogatories or the discovery or inspection of documents.
The rule relating to discovery is embodied in Rule 12 of Order
XI and the rule relating to the inspection of documents is to be
found in Rule 18 of the same Order. In the present case the
learned Subordinate Judge made no order either under Rule 12
or Rule 18 of Order XI of the Code of Civil Procedure. It is,
however, contended on behalf of the plaintiff firm that the
notice, which was issued to Jai Ram Das, was one that required
inspection of documents called for from him. The form of
notice to be issued under Order XI, Rule 14 is given in
appendix C, Form No. 6. The notice that was issued in the
present case does not comply with the Form given in Appendix
C.”
(Underlining supplied)
15. In Koduri Krishnarao Versus. State of Andhra Pradesh, Hyderabad
AIR 1962 AP 249 a Division Bench of Andhra Pradesh High Court held that
“A plain reading of O. XI, R. 21 shows that the Court could have invoked
the penal provisions of that rule only if there had been an order to answer
interrogatories or for discovery or for inspection of documents under
Rules 11, 22, and 18 of O. XI.”
16. In Sahu Munnalal versus Tara and Anr AIR 1929 All 83 the
Allahabad High Court held as under:
“The second reason why I consider the order of the Assistant
Collector to be without jurisdiction is that the penalty does not
attach to an order for the production of documents. This follows
from what I have already stated. The penalty does not arise
from any action of the Court but arises from an action of a
party. Under Rule 14, the Court is permitted to order production
and on failure of such production, there is no penalty because
Rule 21 does not permit of a penalty on the motion of the
Court. It is only where a party makes application and fails to
obtain the evidence, which it seeks, from the opposite party that
the penalty of Rule 21 follows. There is thus a very clear
distinction between Rule 14 and Rules 6 to 8, 12 and 15. Rules
6 to 8, 12 and 15 apply to parties who have been given the right
to move for serving of interrogatories, for discovery of
documents and for inspection thereof as regards matter within
the knowledge of the other party and documents within the
control of the other party. Rule 21 does not apply without a
party making a motion and, therefore, no penalty can attach to
Rule 14 because under that rule the Court acts of itself and not
on the motion of a party. There is a recent judgment of a Bench
of two Judges of the Madras High Court in which it was held
that Order XI, Rule 21 of the Code of Civil Procedure did not
justify the dismissal of a suit for non-compliance with an order
under Order XI, Rule 14 of the Civil Procedure Code for
production of documents [Sithamalli Subayyer v. Ramanathan
Chettiar, A.I.R. 1924 Mad. 582.]”
(underlining supplied)
17. In Chinnappan versus Ramachandran, AIR 1989 Mad 314, the
High Court of Judicature at Madras following the decision in Sithamalli
Subbayyer (Supra) held as under:
“It may now be considered whether the application filed by the
appellant before the court below for the exercise of powers
under Order 11, Rule 21, C.P.C. was maintainable. Order 11,
Rule 21, C.P.C. to the extent to which that provision is relevant
on the facts of this case, states that where any party fails to
comply with any order to answer interrogatories, or for
discovery or inspection of documents, he shall, if a defendant,
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. It is thus
seen that the remedy of having the defence of a defendant
struck out would arise only when he fails to comply with an
order to answer interrogatories or for discovery or inspection of
documents and not in other cases. In this case, the respondent
was not delivered interrogatories for being answered by an
order of Court under Order 11, Rule 1, C.P.C. Likewise, the
respondent was not directed by an order of court to make
discovery on oath of the documents in his possession or power
relating to any matter in question in the suit under Order 11,
Rule 12, C.P.C. No order for inspection of documents was also
passed against the respondent under Order 11, Rule 12, C.P.C.
The exercise of the power vested in the Court to strike out the
defence of a defendant and to place him in the same position as
if he had not defended the suit is limited under Order 11,
Rule 21, C.P.C. to cases where the defendant fails to comply
with an order to answer interrogatories or an order for discovery
or inspection of documents. In other words, an order under
Order 11, Rule 21, C.P.C. cannot be passed in cases falling
outside the purview of Order 11, Rules 12 and 18; C.P.C. In
Sithamalli Subbayer v. Ramanathan Chettiar : (1924) 46 MLJ
350, an order was passed by Court under Order 11, Rule 14,
C.P.C. directing the plaintiff to produce some documents upon
oath and on the production of some, documents, the defendant
inspected a few of them and finding that some documents
directed to be produced were not produced, applied to the court
to take action under Order 11, Rule 21, C.P.C. dismissing the
suit. That application was dismissed holding that Order 11,
Rule 21, C.P.C. did not apply to cases of non-compliance with
an order for production and, the dismissal of the application
was upheld by this Court.
It is clear from the decision referred to above, that failure to
produce documents directed to be produced by an order of
Court passed under Order 11, Rule 14, C.P.C. does not fall
under Order 11, Rule 21, C.P.C. To similar effect is the
decision in Subramania Iyer v. Bonier Cooty Haji: AIR 1933
Mad 870. In that case also, for failure to produce certain
documents pursuant to orders passed under Order 11, Rule 14,
C.P.C. the suit was dismissed and in considering the correctness
of this order, Pandalai J. observed as follows -
"..........From the terms of the Judge's order as well
as from the previous orders for production which
are on the record, there is no doubt that those
orders were passed under Order 11, Rule 14,
C.P.C. and that respondent-defendant No. 1
applied for orders under that provision. This being
so, it would be enough to dispose of this appeal to
say that the learned Judge had no authority to
dismiss the plaintiffs suit for disobedience of an
order under Order 11, Rule 14, C.P.C. That was
decided in so far as this Court is concerned in
Subbayer v. Ramanathan Chettiar : (1924) 46
MLJ 350 which followed a decision of the
Allahabad High Court in Lyalpur Sugar Mills Co.
Ltd. v. Ramchandra Gursahai Cotton Mills Co.
Ltd : AIR 1922 All 235 "
It is thus seen that this Court has consistently taken the view
that a failure to produce documents directed to be produced by
an order of court passed under Order 11, Rule 14, C.P.C. does
not enable the court to exercise its powers under Order 11,
Rule 21, C.P.C. In view of this, the application filed by the
appellant seeking the assistance of the court to exercise its
powers under Order 11, Rule 21, C.P.C. was misconceived and
not maintainable. ……..”
(Underlining supplied)
18. In M/s. Gur Prasad Shyam Babu and others
Versus State Bank of India and another AIR 1994 All 151, the Allahabad
High Court has held
“The main question which falls for determination in the present
case is as to whether the order which had been passed by the
trial Court on 21-8-1987 could be passed under O. 11, R.21,
C.P.C. …….
From the provisions of the aforesaid R. 21 it is thus clear that
the Court can exercise the power under the aforesaid rule in
three circumstances i.e. when a party fails to comply (a) with
any order to answer interrogatories; (b) with any order for
discovery of documents; and (c) with any order for inspection
of documents.
The learned counsel for the applicant has frankly conceded that
the order which had been passed by the trial Court on 16-7-
1987 did not fall in either of the three categories and was an
order of production of documents. I have also carefully
examined the order which has been passed by the trial Court
and I am of the opinion that the aforesaid order is only an order
for the production of documents. Such an order could be passed
by the Court below only under the provisions of Order 9, Rule
14, C.P.C. A bare perusal of Order 9, Rule 21 would show that
the suit could not be dismissed for non-compliance of the
directions of Order 9, Rule 14, C.P.C. and at best the Court
could draw an adverse inference because of non-production of
the documents by the plaintiff. A Division Bench of this Court
in the case of Lyalpur S. M. Company v. Ram (AIR 1922 All
235) has also held that provisions of Order 11, Rule 21 are not
applicable to cases of non-compliance with Order for
production of documents under Order 11, Rule 14, C.P.C.
……..”
19. The Lahore High Court in Manohar Das Versus Darbara Singh and
Anr. AIR 1933 Lah 248 held as under:
“The defendant had been directed as a party to the suit to
produce his documents at a particular date and he failed to do
so. The only effect of his default could be that he might lose the
right to produce those documents at a later stage in support of
his case. The circumstances which enable a Court to strike off a
plaint or a defence under Order 11, Rule 21, had not come into
existence in this case. No interrogatories had been served upon
the defendant and no order for discovery or inspection of
documents such as is contemplated by Order 11 had been
passed.”
20. The High Court of Tripura in Shri Baba Shiva Sambhu and another
Versus Raj Mohan Deb Nath and others AIR 1966 Tri 16 held as under:
“Now, from the terms of O. 11, R. 21 set forth above, it is clear
that even assuming that the plaintiff had been called upon by
the Court to produce certain documents in original and that he
had failed to do so as the documents were lying with the
Settlement Department, it cannot be postulated that R. 21 is at
all attracted into application. Refusal to produce certain
documents (see O. 11 R.14) is not a lapse within the meaning of
R. 21 at all and, therefore, the penal consequences prescribed
thereunder could not have been imposed. There is ample
authority for holding that an order for production of documents
under R. 14 is not one of the orders contemplated under this
rule and, therefore, any disobedience thereto could not be
punished under O. 11 R. 21. See Lyalpur Sugar Mills and Co. v.
R.C.G. Sahai Cotton Mills and Co. : AIR 1922 All. 235;
Subbayyar v. Ramanathan Chettiar : AIR 1924 Mad 582;
Subramania Ayyar v. Bomer Cooly Haji : AIR 1933 Mad 870;
Manohar Das v. Darbara Singh: AIR 1933 Lah 248; Tafazzul v.
Shah Mohammad, : AIR 1949 All 261; Shamalal Guruprasad
v. Ganpatlal, AIR 1954 MP 65.
These cases clearly establish the principle that the noncompliance
with an order under O. 11 R. 14 does not and cannot
warrant the dismissal of the suit of a plaintiff or the striking off
of the defence of the party which is guilty of the noncompliance
of the order as such non-compliance does not fall
within the ambit of the three grounds which are stated in the
rule and which only would justify the striking off of the
defence. It may further be pointed out in this connection that
where a party fails to produce certain documents under O. 11
R. 14, the Court would be entitled to raise an adverse
presumption against the party on account of the non-production
of the documents required, but that would not justify its
dismissing a suit in the case of a plaintiff or striking off of the
defence in the case of a defendant. It has to be emphasised in
this connection, and I would do so even at the risk of repetition,
that the provisions of this rule are of a very drastic nature, and it
is only in rare cases that the penalty contemplated under the
rule should be resorted to. Bearing these principles in mind, I
have no hesitation in coming to the conclusion that the order
passed by the Court of first instance dismissing the suit of the
plaintiff was wholly without justification and that in passing
that order the Court exercised jurisdiction which did not vest in
it in accordance with law. ……….”
(underlining supplied)
21. The consistent view taken by various High Courts across the country
for a considerably long period of time i.e. nearly over 90 years is that an
order under 11 order rule 14 is merely an order to produce documents. Non
compliance of the said order may have several consequences, but the set of
consequences as stipulated by order 11 rule 21 is not one of them. The court
is not given discretion under rule 21 to dismiss the suit for non prosecution
or strike out the defence in case of non compliance of the order of
production. Various other measures may be available/consequences
provided for dealing with a failure to comply with an order of production
under order 11 rule 14, however, we are not in the present case called upon
to deal with the said issue.
22. The impugned order is an order made under Order 11, Rule 14, The
non-compliance of that order does not warrant the striking out of the defence
of the appellant. The grounds upon which the discretion is given to a Court
to strike out the defence of a defendant are given in Rule 21 of Order 11
CPC. According to the said rule, there are three grounds only upon which a
Court is justified in striking out the defence of a defendant or in dismissing
the suit of a plaintiff, namely, (1) the refusal to answer interrogatories, (2)
the refusal to make discovery of documents, (3) refusal to permit inspection
of documents. Rule 14 of Order 11 CPC does not relate either to the
answering of interrogatories or the discovery or inspection of documents.
The rule relating to discovery is embodied in Rule 12 of Order 11 and the
rule relating to the inspection of documents is to be found in Rule 18 of
order 11. In the present case the learned Judge has not passed any order
either under Rule 12 or Rule 18 of Order 11 CPC. An order under Rule 14 is
clearly not covered within the ambit of rule 21.
23. Further, an order for production under order 11 rule 14 CPC does not
decide or affect any vital and valuable rights of the parties or decide matters
of moment. In any event, prior to passing any order under order 11 rule 21,
the court is to put the defaulting party to notice and give him an opportunity
of being heard. The impugned order does not satisfy the test as laid down in
Shah Babulal Khimji (Supra) and as such the present appeal is not
maintainable.
24. Since we are of the view that the appeal is not maintainable, we are
not going into the question of relevancy of the documents or their
availability with the appellant or the issue qua production of secondary
evidence by the respondent.
25. In view of the above, the appeal is held to be not maintainable. The
appeal is accordingly dismissed leaving the parties to bear their own costs.
SANJEEV SACHDEVA, J
BADAR DURREZ AHMED, J
January 19 , 2016
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