CHINNAPPAN Vs. RAMACHANDRAN

JUDGEMENT

(1.) The plaintiff in O.S. 12 of 1982, Sub-Court, Pattukotai, is the appellant in this civil miscellaneous appeal. The appellant instituted that suit against the respondent herein and others praying for the relief of partition and separate possession of his one-fourth share in the A and B schedule properties. That suit is pending. In I.A. 219 of 1983 in O.S. 12 of 1982, filed under O.11, R.14 and S.151, C.P.C. the petitioner prayed that the respondent may be directed to produce into court certain documents detailed in the application. On 12-4-1983, the learned Subordinate Judge passed an order directing the respondent herein to produce the documents set out in I.A. 219 of 1983. Later on 13-9-1983, learned counsel for the respondent made an endorsement to the effect that the documents are not available. Thereupon, the appellant filed I.A. 562 of 1983 in O.S. 12 of 1982, purporting to be under O.11, R.21, C.P.C. praying that the defence of the respondent in the suit should be struck out and that he should be placed in such a position as if he had not defended the claim of the appellant in the suit for partition in O.S. 12 of 1982 instituted by the appellant. In the affidavit filed in support of that application, the appellant stated that the order directing the production of the documents by the respondent was passed after hearing the respondent and if the documents were not a vailable, then he should have stated so prior to the passing of the order on 12-4-1983, and the subsequent endorsement made by the learned counsel for the respondent to the effect that the documents are not available amounts to a wilful refusal to obey the directions of Court, and far the failure of the respondent to produce material document despite an order of Court, the legal consequences in terms of O.11, R.21, C.P.C. would follow and, therefore, the defence of the respondent in the suit should be struck out. The respondend in his counter-affidavit, reiterated that the documents directed to be produced were not in his possession or custody and that it was not his intention to disobey or disregard any direction of Court. An objection that the application filed by the appellant under O.11, R.21, C.P.C. is not maintainable on the facts and circumstances of the case was also raised. The learned Subordinate Judge, Pattukottai held that the appellant had not established by prima facie evidence that the respondent had the custody of the documents directed to be produced and that the non-production of the documents by the respondent had not been established to be wilful. Dealing with the objection that the application under O.11, R.21, C.P.C. was misconceived and not maintainable, the learned Subordinate Judge held that the refusal to produce the documents under O.11, R.14, C.P.C. would not fall within the scope of O.11, R.21, C.P.C. and, therefore, the provisions of O.11, R.21, C.P.C. could not be invoked by the appellant. On the aforesaid conclusions, the application filed by the appellant in I.A. 562 of 1983 was dismissed. It is the correctness of this that is questioned in this civil miscellaneous appeal.

(2.) Learned counsel for the appellant contended that the order for the production of the documents was passed after hearing the learned counsel for the respondent and if even at the time of the passing of that order, the respondent did not have the custody of the documents directed to be produced, that fact could have been brought to the notice of the court, which, however, was not done, but after the lapse of nearly five months after the order for production of the documents, an endorsement was made to the effect that the documents are not a vailable and this clearly indicated contumacy on the part of the respondent or a wilful attempt to disregard the order of Court for production of documents justifying the striking out of the defence of the respondent in the suit. Per contra, learned counsel for the respondent submitted that the application filed by the appellant under O.11, R.21, C.P.C. was not maintainable, as there was no failure on the part of the respondent to answer interrogatories or failure to comply with an order for discovery or inspection of, documents and a mere failure to produce documents as directed by the Court would. not fall within the scope of O.11 R.21, C.P.C. Strong reliance in this connection was placed by the learned counsel for the respondent upon the decision in ) and Subramania Ayyar v. Bomer Cooty Haji, AIR 1933 Mad 870.

(3.) There is no dispute that the appellant secured in I.A. 219 of 1983, an order under O.11, R.14, C.P.C. directing the respondent herein to produce into court five items of documents and despite a direction by court to the respondent to produce the documents called for, the documents Were not produced, on the ground that they were not available. It is true that if the documents, the production of which was asked for by the appellant, were not available even at the time when the court proceeded to pass the order directing the production, the respondent could have stated so. However, the failure of the respondent to bring it to the notice of the Court even then that the documents were not in his custody cannot be equated to contumacy on the part of the respondent or even be characterised as a wilful attempt to disregard the order of the Court, especially when there is no material a vailable on record to show that the respondent in fact had the custody of those documents, but had deliberately and wilfully retained from producing them into court in utter disregard of direction of court. No doubt, the respondent, by means of an endorsement through his counsel belatedly brought to the notice of the Court that the documents directed to be produced were not available. Merely from this circumstance, it cannot be readily assumed that the respondent, with the intention of disobeying and disregarding orders of Court, did not produce the documents directed to be produced. There is, therefore, no question of the respondent being guilty of contumacious conduct or a wilful attempt to disobey the direction of court. It would be relevant in this connection to bear in mind the caution administered by the Supreme Court in M/s. Babbar Sewing Machine Co. v. Tirloknath Mahajan, AIR 1978 SC 1436, to the effect that an order under O.11, R.21, C.P.C. striking out the defence should be worked with caution and should not be made unless there has been obstinacy or contumacy on the part of the defendant or a wilful attempt to disregard an order of court. Earlier, it has been seen how on the facts of this case, there is no evidence of contumacious conduct on the part of the respondent or a wilful attempt on his part to disobey orders of court. In view of this, in the present case, there is no justification for resorting to and exercising the drastic powers of Court under O.11, R.21, C.P.C. to strike out the defence of the respondent in the suit, even on the assumption that the application filed by the appellant under O.11, R.21, C.P.C. is maintainable.