ZILLA PARISHAD Vs. PUNARJANMA REWINDERS AND ELECTRICALS

JUDGEMENT

(1.) Admit. The appeal is being heard and finally disposed at the stage of admission.

(2.) By this appeal, the appellant Zilla Parishad, Aurangabad challenges the order passed by the Civil Judge, Senior Division, Aurangabad on 3-2-2006 below exhs. 27 and 28 in Special Civil Suit No. 372 of 2004 striking out the defence of the appellant Zilla Parishad under the provisions of Order 39 Rule 11 of the Code of Civil Procedure. By this appeal, the appellants have also challenged the order passed below Exh. 30 on 4-7-2006 rejecting the application filed by the appellants for setting aside the order dated 3-2-2006 by which the Court had directed that the defence of the appellants be struck off. A few facts giving rise to the controversy in question are stated as under : the respondent Contractor filed Special Civil Suit No. 372 of 2004 for recovery of amount of Rs. 25,10,401/- against the appellant Zilla Parishad, aurangabad. The Zilla Parishad, Aurangabad resisted the claim of the plaintiff contractor by filing written statement and also filed a list of documents along with the written statement. On 21-10-2005, the plaintiff contractor filed an application for production of six documents under the provisions of Order 12 rule 8 of the Code of Civil Procedure and the Civil Judge, Senior Division, aurangabad, by an order dated 16-1-2006, directed the defendant Zilla Parishad, aurangabad to produce the documents as per the notice. The appellant Zilla parishad, Aurangabad was, however, not able to produce all the documents which were directed to be produced by order dated 16-1-2006. According to the appellant Zilla Parishad, Aurangabad, one of the documents was available with the Zilla Parishad, Aurangabad and, therefore, it had produced it on record. It could not produce the other documents in time as the appellant/defendant was a public body having various departments and the present matter pertained to water supply department. It was also brought to the notice of the Court by a civil application dated 28-2-2006 by the appellant that the plaintiff had already received the approved bill for the years 1999-2000 and 2000-2001 and the said copies were in possession and custody of the plaintiff. Since the appellant was not able to comply with the order passed by the trial Court dated 16-1-2006, the plaintiff filed an application under provisions of Order 39 Rule 11 of the Code of civil Procedure praying that the defence of the Zilla Parishad, Aurangabad be struck off as there was non-compliance of the orders passed by the Court on 16-1-2006. Though the appellants sought time for production of the documents, the court refused to grant the same and by the impugned order dated 3-2-2006, struck off the defence of the Zilla Parishad, Aurangabad.

(3.) Thereafter the appellant Zilla Parishad, Aurangabad produced copies of certain documents, as per the list and requested the Court that the copies of measurement book etc. be taken on record and the order passed by the Court on 3-2-2006 be set aside. After considering the application and the say filed by the respondent/plaintiff, the Civil Judge, Senior Division, Aurangabad rejected the application filed by the appellant Zilla Parishad, Aurangabad for setting aside the order dated 3-2-2006, by order dated 28-2-2006. The appellants have challenged the orders passed by the Civil Judge, Senior Division, Aurangabad on 3-2-2006 and 28-2-2006 in the instant appeal.