SITHAMALLI SUBBAYYER Vs. MLMRAMANATHAN CHETTIAR

JUDGEMENT

(1.) In this case the defendant had applied to the Subordinate Judge for an order of discovery of documents against the plaintiff under Order 11, Rule 12, C.P. Code. The learned Judge refused to give such an order but directed the defendant to file a list of documents which he alleged were with the plaintiff, and on his doing so, passed an order under Rule 14 directing production of such documents upon oath. The plaintiff produced certain documents in Court and prayed the Court to keep them under lock and key. He also filed an affidavit. Under the Subordinate Judge's orders the documents were kept under lock and key. The defendant then applied for inspection and by a separate order after hearing parties inspection was ordered of the documents filed in Court by the plaintiff. On defendant inspecting those documents he found that some of the documents included in his list were not produced, in particular the rough chitta books he had asked for. Thereupon the defendant applied to the Court to take action under Order 11, Rule 21 and to dismiss the suit. The Subordinate Judge dismissed the application holding that that rule did not apply to cases of non-compliance with an order for production and that the order for inspection which referred only to documents filed in Court was fully complied with. The appeal to us is by the defendant against that order of the subordinate Judge.

(2.) Rule 21 in terms does not apply to an order for production it speaks only of interrogatories or discovery or inspection. In the repealed Code the words " or production " were in the corresponding section but they have been omitted in the new Code. It is argued that the omission is due to a desire to avoid redundancy, as an order for production implied discovery and inspection. The opinion of Broadway J., of the Lahore High Court in the case Ramnath v. Parabhu Dayal (1921) 65 IC 661 is cited in support of the argument that the object of the omission was to avoid redundancy. The learned Judge does not give a very decided opinion on the point nor has he discussed the question. On the other hand a Bench of the Allahabad High Court. has held that Rule 21 does not apply to case of " production " orders. With all respect to the opinion of the learned Judge of the Lahore Court I am unable to follow his view. In the corresponding English Rule, Order 31 Rule 21 of the English rules of Practice, the words " or production " do not occur and it was apparently to bring the practice here into conformity with the English practice on the point that the omission was made. An order for production is quite different from an order for discovery or an order for inspection and cannot be said to imply either. In the present case the order for discovery was refused and the order for inspection was passed as a subsequent order. It is impossible to hold therefore that in the present case the order for production was anything more than for bare production in Court of specified documents. In the case Joy V/s. Hadley Cited in 22 Ch. D. 571 the order was for production and inspection it was in reality an order for inspection in Court of documents to be produced in Court for the purpose. That case is thus not an authority on the point before us. Some support was sought to be drawn from the wording of the Form 6 under Order 11 Rule 14, first Schedule, Appendix C of the Code. That form can be properly used only where the order is " to produce for inspection " as the title of the form shows. Rule 14 contemplates further orders being-passed on the documents being produced. An order for inspection of documents may, I think, therefore be passed under that rule itself after hearing parties; Rule 18 also enables a party to obtain an order for inspection. The form 6 cannot be relied on as showing that an order under Rule 14 involves an order for inspection, for documents may be directed to be produced in Court for various other reasons, for example, for preventing tampering with them.

(3.) It was suggested that if we do not apply the provisions of Rule 21 in cases of orders for production there will not be a sufficiently effective method to make the party obey the order of the Court. There is no basis for this argument, for there are several ways of making a party produce a document shown to be in his possession and for which privilege is not established; and the presumption that arises against a party who is called upon and does not produce a document in his possession or power is in itself of serious consequence to him.