DWARKA SHEET UDYOG Vs. RAJRNDRA MANIHAR

JUDGEMENT

(1.) The present appeal has been preferred under Order 43 Rule 1 of the Code of Civil Procedure by the appellant, being aggrieved by the order Dt. 25.11.2004, passed by the trial Court on an application preferred unde Or. 11 R. 21 of the Code of Civil Procedure.

(2.) In the present case, a Civil Suit was preferred on 10.6.92 by the present appellant for recovery and a written statement was filed by the defendant No. 1, 2 and 3. The defendant No. 4 therein was proceeded ex-parte. Issues were framed by the trial Court and the evidence of the plaintiff was also concluded. On 27.8.04 an application was preferred under O.11 R. 21 of the Code of Civil Procedure and it was stated in the aforesaid application that they have requested the plaintiff for producing certain documents in evidence but the plaintiff has failed to do so.

(3.) In the present case, the record establishes that an application was preferred under Or. 11 R. 21 of the Code of Civil Procedure on 27.8.04. Certain documents relating to the transaction of the year 1989 were the subject matter of the application dt. 27.8.04 and the aforesaid documents were not available with the appellant/plaintiff as the plaintiff/appellant was not required to preserve such document on account of any statutory provision. Not only this, the documents were not at all relating to the transactions on the basis of which the recovery suit was filed. The record further reveals that the trial Court has directed the plaintiff by order Dt. 23.7.04 to produce the documents, however, the documents which were in respect of some transaction of the year 1989 was not produced by the plaintiff. Order 11 Rule 14 and Rule 21 reads as under : Order XI-- Discovery and Inspection : Rule 14. Production of documents -- It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath, of such of the documents in his possession of power, relating to any matter in question in such suit, as the Court shall think right, and the Court may deal with such documents, when produced in such matter as shall appear just. Rule 21. Non compliance with order for discovery - (1) Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect, and an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard. (2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action.