L.R.S OF PANNA LAL: SINCE DECEASED THROUGH LEGAL REPRESENTATIVES & ANR. Vs. MOHAMMAD UMAR S/O SHRI BHOORE KHAN @ ABDUL RASHID

JUDGEMENT

(1.) Feeling aggrieved by order dated 7th of May 2016, passed by Addl. District Judge, Merta (for short, 'learned trial Court'), appellant-defendant has laid this appeal under Order 43 Rule 1 (f) read with Section 104 CPC. By the order impugned, learned trial Court rejected the application of appellant-defendant under Order 11 Rule 21 CPC.

(2.) The facts apposite for the purpose of this appeal are that respondent-plaintiff filed a suit for eviction and enhancement of rent against Pannalal, the original defendant. During the pendency of the suit, Pannalal died and therefore his legal representatives - appellants were brought on record. When the suit was posted for recording evidence of plaintiff-respondent, at the behest of appellants, an application under Order 11 Rule 12 CPC was submitted for summoning the account books for the period from 11th of May 1994 to 11th of May 2000. The learned trial Court, after hearing arguments on that application, vide order dated 4th of November 2015 asked the respondent-plaintiff to produce account books on oath. The counsel for the respondent plaintiff, after seeking some time, submitted his affidavit on 19th of January 2016 that those account books are not within his power and possession as the same stand destroyed by afflux of time. Upon receiving this affidavit of the respondent-plaintiff, learned trial Court posted the matter for evidence but feeling disgruntled with the omissions of respondent-plaintiff, appellants submitted an application under Order 11 Rule 21 CPC. In the application it is pleaded by appellants that the respondent-plaintiff has failed to comply with the directions of the Court dated 4th of November 2015, therefore, the suit is liable to be dismissed. On behalf of respondent-plaintiff, its reply was filed. The learned trial Court, thereafter, heard arguments and by the order impugned rejected the application of appellants.

(3.) Learned counsel for the appellants, Mr. S.L. Jain, has vehemently argued that the learned trial Court has seriously erred in rejecting their prayer for dismissal of the suit. Mr. Jain would contend that non-compliance of the order for discovery entails dismissal of the suit of plaintiff or striking out defence of the defendant but the learned trial Court has not examined the matter in right perspective. Learned counsel, therefore, submits that the impugned order calls for interference in exercise of appellate jurisdiction. In support of his arguments, learned counsel has placed reliance on following legal precedents: