Andhra HC (Pre-Telangana)
Kundoju Venkateswarlu vs Kundoju Seetharamaiah And Anr. on 22 July, 1997
Equivalent citations: 1997(4)ALT476
Author: R. Bayapu Reddy
Bench: R. Bayapu Reddy
ORDER R. Bayapu Reddy, J.
1. This revision petition is filed questioning the orders of the District Munsif, Kodad dated 28-11-1995 passed in I.A.373/95 in O.S.327/93 dismissing the said petition filed under Order 11 Rule 21 C.P.C. by the defendant, who is the present petitioner.
2. The respondents herein had filed the suit O.S. No. 327/93 for the relief of permanent injunction against the present petitioner, who is the defendant in the suit. During the pendency of the suit, the defendant filed LA. No. 257/94 under Section 66 of the Indian Evidence Act read with Section 151 C.P.C. requesting the Court to direct the plaintiffs to produce the original partition agreement dated 1-2-1991 said to be in the possession of the plaintiffs. The said petition was allowed by the Court on 22-11-1994 directing the plaintiffs to produce the said document into Court. During the trial of the suit the defendant filed I.A.373/95 under Order 11 Rule 21 CPC requesting the Court to dismiss the suit on the ground that the plaintiffs did not obey the directions of the Court passed in I.A.No. 257/94 calling upon them to produce the document dated 1-2-1991. The lower Court dismissed the said petition holding that Order 11 Rule 21 CPC is not attracted in the present case; that the defendant did not take any steps subsequent to the orders in I.A.257/94 to call upon the plaintiffs to produce the above said document; that the suit was filed only for the relief of injunction and such document as directed to be produced by the plaintiffs may not be necessary for deciding the point in dispute in the suit, and that, therefore, the petition was liable to be dismissed, and he accordingly dismissed the said petition. Questioning the said orders, the present revision petition is filed by the defendant.
3. Heard both the Counsel.
4. It is to be seen in the present case that the defendant, who is the present revision petitioner, filed I.A.257/94 under Section 66 of the Indian Evidence Act read with Section 151 C.P.C. requesting the Court to direct the plaintiffs to produce the original partition agreement dated 1-2-1991, which was said to be in the possession of the plaintiffs on the ground that such document is necessary for deciding the dispute in the present suit. The said petition was contested by the plaintiffs as seen from the counter filed by them in that petition, contending that there was no such partition agreement executed on 1-2-1991 and he was not in possession of any such document and as such, production of such document by them does not arise. It is no doubt true that the said petition was allowed by the Court on 22-11-1994 and the plaintiffs did not produce any such document into Court in pursuance of those directions. The defendant subsequently filed I.A.373/95 under Order 11 Rule 21 C.P.C. requesting the Court to dismiss the suit on the ground that the plaintiffs failed to produce the above said document as per the orders in I.A.257/94. The learned Counsel for the respondents herein contends that Order 11 Rule 21 C.P.C. cannot be utilised for seeking relief of dismissal of the suit in the present set of circumstances; that the plaintiffs, right from the beginning, are contending that they are not in possession of any such document and as such, the question of producing such document into Court does not arise, and that simply on account of the directions given in I.A.257/94, it cannot be said that the plaintiffs have failed to produce the document and that, therefore, the suit cannot be dismissed under Order 11 Rule 21 C.P.C. He has also tried to rely upon the decision of the Madras High Court reported in Chinnappan v. Ramachandran, in support of his contention in this regard. It is seen from a perusal of the said decision that the observations made therein clearly applies to the present facts. That was also a case where one of the parties to the suit was directed by the Court to produce a document into Court and the said party had contended that there is no such documentlying with him and therefore the question of producing such document by him does not arise. In that case, the said plea that the document was not available with him, was taken by the party at a latter stage and not at the time when the direction was given by the Court to produce the document. In the present case, the plaintiffs contended even in their counter filed in I.A.257/94 that no such document is available with them and was never executed between the parties and that, therefore, the question of producing such document does not arise. In the above said decision of the Madras High Court, it is observed that a mere failure to produce the documents directed by the Court to be produced under Order 11 Rule 14 CPC does not enable the Court to exercise its powers under Order 11 Rule 21 C.P.C. Order 11 Rule 21 CPC postulates that when a party fails to comply with any order to answer interrogatories or for discovery or inspection of documents, he shall, if he is a plaintiff, be liable to have his suit dismissed for want of prosecution. In the present case, such conditions are not fulfilled, so as to invoke the provisions of Order 11 Rule 21 CPC. There is only a direction from the Court to the plaintiffs to produce the document as per the orders in I.A.257/94 which was filed only under Section 66 of the Indian Evidence Act read with Section 151 C.P.C. As already stated above, the plaintiffs specifically contended in that petition that they are not having any document as mentioned in the petition and that no such document was ever executed between the parties and as such production of such document by them does not arise. Under such circumstances, the provisions of Order 11 Rule 21 C.P.C. cannot be utilised for seeking dismissal of the suit filed by the plaintiffs.
5. In this connection, it will be useful to refer to the observations made in another decision of the Madras High Court reported in Sithamalli Subbnyer v. Ramanathan Chettiar, AIR 1924 Madras 582 which are also extracted in the above cited decision of the Madras High Court reported in Chinnappan v. Rnmachandran (1 supra). The said observations which are relevant for the present purpose are as follows:-
"........An order for production is quite different from an order for discovery or an order for inspection and cannot be said to imply either.... 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...........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 12 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 reasons, for example, for preventing tampering with them.
...........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.
In the view, I take that Rule 21 does not apply to orders for production, the appeal fails."
In the present case also, there was no order for discovery or an order for inspection of any document and there was only an order passed in I.A. No. 257/94 for production of the document, the possession of which the plaintiffs specifically denied even in the counter filed by them in that petition. Therefore, Order 11 Rule 21 C.P.C. cannot be resorted to by the defendant for seeking dismissal of the suit on the ground that the plaintiffs have not obeyed the directions in I.A.No. 257 of 1994.
6. The learned Counsel for the petitioner, who is the defendant in the suit, has tried to rely upon the decision of the Supreme Court reported in Babbar Sewing Machine Co. v. Tirlok Nath, AIR 1978 SC 1436 in support of his contention. A perusal of the said decision of the Supreme Court, however, shows that the observations made by Their Lordships in the said decision have no application to the present facts. As a matter of fact, the said decision of the Supreme Court was also referred to in the above cited decision of the Madras High Court reported in Chinnappan v. Ramachandran (1 supra) and drew attention to the caution administered by the Supreme Court in the said decision to the effect that an order under Order 11 Rule 21 C.P.C. for striking out the defence should be worked with caution and should not be made unless there has been obstinacy or contumacy on the part of the defendant or a wilful attempt to disregard an order of Court. In the present case also, the conduct of the plaintiffs does not reveal that there was any such obstinacy or contumacy on their part or a wilful attempt to disregard the order of the Court. As already stated above, the very contention of the plaintiffs right from the beginning is that they are not in possession of any such document and no such document is executed between the parties. In such a case, it is not possible for them to obey the directions of the Court to produce such document into Court which they are not in possession. Therefore, the above cited decision of the Supreme Court is not of any assistantance for the contention of the petitioner. In view of all these circumstances, the lower Court rightly found that Order 11 Rule 21 C.P.C. is not attracted in the present case and as such dismissed the petition. There are no valid reasons to interfere with such orders passed by the lower Court.
7. The revision petition is, therefore, dismissed. No costs.