ARCHDIOCESE OF BHOPAL REGD SOCIETY Vs. HASAN KABIR

JUDGEMENT

(1.) -WRIT petition has been filed calling in question the legality of the appellate order allowing the appeal setting aside the dismissal of the suit by the trial Court under the provisions of Order 11 Rule 21 CPC due to non-compliance of an order dated 14. 1. 2005 passed under Order 11 Rule 14 (1) of CPC.

(2.) DEFENDANT had filed an application for directing plaintiff to file original documents of which photo copies were submitted along with the plaint. The trial court has ordered on 14. 1. 05 that plaintiff to produce in Court all the documents which may be in his possession in original within three days of passing of the order. The trial Court directed hearing of the application under Order 7 Rule 11 cpc on the next date. The trial Court vide Order dated 31. 1. 05 considered the effect of non-compliance of order dated 14. 1. 05 of not filing the original documents within three days. The plaintiff has failed to file the documents till 31. 1. 05, consequently the suit was ordered to be dismissed under Order 11 Rule 21 of cpc. Application under Order 7 Rule 11 CPC was not considered in view of dismissal of the suit under the aforesaid provision. Aggrieved by the order, civil misc. appeal was preferred. The appeal has been allowed by 2nd Addl. District Judge vide order dated 5. 12. 05. The appellate Court has held that trial Court has passed the order under Order 11 Rule 14 CPC for production of documents, in case of non-compliance of order, suit cannot be dismissed under the provision of order 11 Rule 21 CPC. It has also been observed by the appellate Court that the power under order 11 Rule 21 CPC has to be exercised sparingly. The order of dismissal of the suit has been set aside, appeal has been allowed. Dissatisfied thereby, the writ petition has been preferred.

(3.) SHRI Shashank Verma, learned counsel appearing for the petitioner has submitted that suit was rightly dismissed by the trial Court under Order 11 rule 21 of CPC. He has relied upon decision of this Court in Indore Development Authority, Indore vs. Satyapal Anand and another 2000 (2) MPLJ 229 in which reliance has been placed on a decision of Nagpur High Court in Premraj Bheoraj Agarwal vs. Nathumal Rupchdnd Marwadi air 1936 Nagpur 130. Shri Verma has also placed reliance upon a decision of Apex Court in M/s Babbar Sewing Machine Co. vs. Tirlok Nath Mahajan air 1978 SC 1436.