IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION

APPELLATE SIDE

Present:

The Hon’ble Justice Dinesh Kumar Sharma

CO 3434 of 2011

Smt. Geeta Khemka & Anr.

Vs.

Southern Avenue Rajeshwari Residents Welfare Association & Ors.

With

CO 1032 of 2012

Southern Avenue Rajeshwari Residents Welfare Association & Ors.

Vs.

Smt. Geeta Khemka & Anr.

For the petitioners in CO 3434 of 2011: Ms. Bani Ghosh, Adv.,

& for the respondents in CO 1032 of 2012 Mr. S.K. Kanodia, Adv.

For the petitioners in CO 1032 of 2012: Mr. Avijit Chakraborty, Adv.,

& for the respondents in CO 3434 of 2011 Mr. Pankaj Kumar Gupta, Adv.

Reserved on: 12.05.2026

Judgment on: 23.07.2026

Dinesh Kumar Sharma, J.:

1. Late Sri Amitava Khemka and Smt. Geeta Khemka (petitioner in CO 3434 of

2011) filed a Title Suit No. 41 of 2002 against Southern Avenue Rajeshwari

Residents Welfare Association and against its office bearer for declaration and

permanent and mandatory injunction on 20

th

August 2002.

2. During the pendency of the suit, the petitioners moved an application for

production of certain documents in terms of legal notice dated 4

th

February

2

2009, while the matter was at the stage of petitioners’ evidence. Learned Trial

Court vide order dated 18

th

May, 2009, directed the defendants to give

inspection of the documents mentioned in the aforesaid notice dated 4

th

February, 2009 to the plaintiff on a suitable date, not later than 10 days from

the date of the order. It was further, inter alia, directed that after such

inspection, the plaintiff will be entitled to take certified copies of those

documents which he chooses at his own cost.

3. Perusal of the uncertified/photostat copies of orders filed by the Learned

Council for Association indicates that the order dated 18

th

May, 2009 was not

complied with. Learned Trial Court, on 3

rd

December, 2009, inter alia, recorded

that learned advocate for defendant submits that documents mentioned in

serial No. 1 and 6 are not possible to be produced and consequently, the

defense of the defendant was struck out under Section 11 Rule 21 of CPC for

non-compliance of court order of production of documents. While the matter

rested thus, the defendants were proceeded ex-parte on 5

th

January, 2010.

4. The defendant/association filed an application under Section 151 CPC on 1

st

of

June 2011 for setting aside the order striking of the defence. Learned Trial

Court vide a detailed order dated 13

th

July, 2011 dismissed this application,

inter alia, holding that though the application under Section 151 CPC is

maintainable, but noted the willful contumacy and willful conduct of the

defendant. The defendant/association aggrieved of this, has invoked the

jurisdiction of this court by challenging the order dated 13

th

July, 2011 in CO

1032 of 2012.

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5. In the meanwhile, the defendant/association moved an application under

Order 11 Rule 14 CPC read with Section 151 CPC, seeking production of

certain documents. The plaintiff filed an objection to the same, inter alia,

stating that the application has been filed only to delay and drag the suit and

thus, the same is liable to be dismissed. The plaintiffs/petitioners also took a

plea that the defendant/association has no locus standi to file the impugned

application, as their defence has already been struck off.

6. Learned Trial Court, vide order dated 10

th

August, 2011 allowed the

application, inter alia, holding that production of certain documents would not

cause any prejudice to the plaintiffs’ side, if such document, is placed on

record for the consideration of the court. It was further, inter alia, held that

schedule of documents to be produced are relevant to the case and may throw

some light in the material controversy. The learned Trial Court also, inter alia,

held that non-production of the documents, at the best, can only draw adverse

inference.

7. The petitioners aggrieved of this, has invoked the jurisdiction of this court in

CO 3434 of 2011, inter alia, stating that the impugned order is liable to be set

aside predominantly on two grounds. Firstly, when the defense of the

defendants had already been struck off, the learned Trial Court could not have

entertained the application under Order 11 Rule 14 CPC itself and secondly,

the documents sought to be produced are not at all relevant for the purpose of

the suit.

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8. Learned counsel for the petitioners in CO 3434/2011 has relied upon M/s.

Babbar Sewing Machine Company vs. Trilok Nath Mahajan, (1978) 4 SCC 188.

Learned counsel submits that in the order dated 13

th

July 2011, the learned

Trial Court has categorically held that the conduct of the defendant was willful

and contumacious and there was a willful attempt to disregard the order of the

court. Learned counsel has further relied upon Balmer Lawri & Co. vs., Assam

Brook Estates, AIR 1979 Calcutta 64 to buttress her point that if an appeal is

provided in the statute, the party aggrieved cannot be allowed to take the

shortcut method by filing an application under Section 151 CPC. Learned

counsel has also relied upon M/s. J.S.Construction Pvt. Ltd. vs. Damodar

Rout, AIR 1987 Orissa 207. Learned counsel further submits that in any case

the revision petition in C.O. 1032/2012 is badly barred by limitation as having

been filed on 23

rd

March, 2012, challenging the order dated 13

th

July 2011.

Learned counsel submits that Article 131 of the Limitation Act, 1963 provides

limitation of 90 days for filing the revision petition.

9. Learned counsel for the petitioner in CO 1032/2012 has refuted all the

averments and submits that the order dated 3

rd

December, 2009, whereby the

defence was struck off is patently illegal as having been passed in clear

disregard to the provisions of law. Learned counsel submits that even in M/s.

Babbar Sewing Machine (supra), it was, inter alia, held that for striking off the

defence under Order 11 Rule 21 CPC, the party needed to have moved a formal

application. Learned counsel further submits that in the present case,

application under Section 151 CPC was moved as there was a miscarriage of

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justice. Learned counsel has submitted that the jurisdiction under Section 151

CPC is very wide and can be invoked to prevent the miscarriage of justice.

10. Bare perusal of the record reveals that the case has a chequered history. On

the first look, the matter seems to be badly barred by the limitation and to be

rejected outrightly, however, careful reading of the same reveals that it raises

some pertinent questions. The question seems to be that whether, if the High

Court has come across with some patent illegality, the Court should cure it, or

leave it as having not been challenged in accordance with procedure. The Court

considers that the questions to be considered in the present proceedings are:

(i) Whether the order dated 3

rd

December, 2009 whereby the

defence was struck off, is legally sustainable or not;

(ii) Whether in absence of any appeal having been filed as

provided under Order XXXXIII Rule 1-F, the order dated 3

rd

December, 2009, striking off the defence cannot be interfered,

though it is patently illegal on the face of it;

(iii) Whether the delay in filling in CO 1032 of the 2012,

challenging the order dated 13

th

July, 2011, without any

application for condonation of delay can be entertained; and

(iv) Whether the Court can mould the relief claimed and issue

directions to ensure substantial justice is done and illegality, if

any, is cured.

11. Since both the petitions are proposed to be disposed of by a common order, it

is necessary to recapitulate the entire facts which are subject matter of present

petitions. Initially, Late Sh. Amitab Khemka (since died) filed a Title Suit no. 41

of 2002 for declaration and permanent and mandatory injunction. The

plaintiffs were the owner of flats in the residential society named as Southern

Avenue Rajeshwari Resident Welfare Association. Briefly, the suit was for

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declaring the special general meeting held on July 9, 2000 as null and void and

as well challenging the functioning of the managing committee. While the suit

was pending, the plaintiff served a notice dated September 4, 2009 upon

learned Advocate for the defendants to produce certain documents before the

Learned Court for inspection. The documents were stated to be related to the

matters of the suit. The documents sought to be produced were as below:

“1) Notices, Minutes and Attendance Record on all meetings of the

defendants associations i.e. Committee Meeting, Annual General

Meetings and Special General Meetings from 1995 tο 2008.

2) All Balance Sheets of the defendant No. 1 Association with

Auditor's report and all attendent papers with Secretary's Report

from 1995 to 2008.

3) Original of the letters of plaintiff No. 1 dt. 03.07.2000,

09.07.2000, 20.04.2001, 09.05.2001.

4) Forwarding letter of Plaintiff No. 1 addressed to defendant No.

2 dt. 21.02.2001 enclosing two letters dt. 13.02.2001 and

20.02.2001.

5) Original of Computer typed letter addressed to dr. Awani Kr.

Roy, Advocate of defendant dated 25.01.2002, 18.2.2002.

6) Original of the Computor copy of the two letters dated

04.01.2002, 6.02.2002, 30.4.2001”.

12. Pursuant to this the plaintiffs also filed an application before the Learned

Court seeking a direction to the defendants to produce the documents and

stated therein that unless these documents are produced at the time of the

recording the declarations, the plaintiffs shall be prejudiced. This application

was taken up for hearing on May 5, 2009 and the same was allowed vide order

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dated May 18, 2009, inter alia, directing the defendants therein to give

inspection of records mentioned in the notice dated February 4, 2009 to the

plaintiff on a suitable day not later than ten days of this order. The learned

Court also, inter alia, observed that plaintiff should be allowed inspection of the

record for proper adjudication of this case. The case was taken up on June 15,

2009 and July 29, 2019 on which date the defendant took adjournment. On

December 3, 2009, Learned Advocate for the defendant (Resident Welfare

Association) submitted that the documents mentioned in serial no. 1 and 6 are

not possible to be produced. Learned Trial Court passed the following order:

“Order dt 3.12.09.

Plaintiff filed hazira. Ld. advocate for plaintiff is present. Ld.

advocate for defendant submit that the documents mentioned in

serial no 1 and 6 are not possible to be produced. Consider the

submission Heard.

Let the defence of defendant is struck out u/s 11 rule 21 for non

compliance of court order of production of document

Fix 5.1.10 for F hearing”.

13. It is pertinent to mention here that subsequently defendant was proceeded ex-

parte on January 5, 2010. Resident Welfare Association moved an application

under Section 151 CPC dated March 20, 2011 praying for recall of order dated

December 3, 2009 by which the defense was struck off. Learned Court rejected

the application vide order dated July 13, 2011. The resident welfare association

challenged this order before this Court vide CO 1032 of 2012. In the

meanwhile, the resident welfare association moved an application under Order

XI Rule 14 filed on July 12, 2011, seeking directions to the plaintiff to produce

certain documents relating to ownership of flat no. 3A and 3B. The plaintiff

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filed written objections predominantly taking two pleas that the defense has

already been struck off and, therefore, there is no locus to file the present

application, and secondly, these documents are not relevant in the suit. The

Learned Trial Court vide a detailed order dated August 10, 2011 allowed the

application and directed the plaintiffs to produce the document. It is pertinent

to mention here that the Court, inter alia, observed that for non-production of

documents as sought for, at the best can only draw adverse inference. The

plaintiff aggrieved of this challenged the impugned order vide CO 3434 of 2011

predominantly taking a plea that the learned Trial Court has fallen into error

by allowing the application under Order XI Rule 14 CPC, whereas the defense

had already been struck off.

14. Ld. Counsels for both the parties have made detailed submissions and have

also filed written note of arguments. Before proceeding further, the Court is

conscious of the fact that initially the Title Suit no.41 was filed in 2002 and

even after expiry of 24 years, the suit does not seem to have seen much

progress. The court was rather doubtful whether the parties would still be

interested in the original suit as almost the quarter of the century has elapsed.

The chequered history of this case demonstrates a total casual approach of the

Ld. counsels representing the parties as well as the ld. Trial Court. The

question herein is whether the Court should take a hyper technical view taking

into account the procedural limitations, delay and latches and dispose of the

petitions or may examine the legality of the orders passed in order to ensure

that if any illegality has been committed that should not be allowed to be

9

perpetuated.

15. Before proceeding further, it is necessary to take into account certain relevant

provisions of the law. Order XI of CPC relates to the chapter "Discovery and

Inspection". Order XI Rule 14 reads as under:

“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 or 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 manner

as shall appear just”.

16. Since Order XI Rule 21 is also at the center point, therefore, it is necessary to

reproduce the same also order XI Rule 21 which reads as under:

“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 or 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.]”

17. Before proceeding further, it is also advantageous to refer to Section 151 CPC

which confers inherent power of the Court Section 151 CPC reads as under:

“151. Saving of inherent powers of Court. -Nothing in this

Code shall be deemed to limit or otherwise affect the inherent

power of the Court to make such orders as may be necessary for

10

the ends of justice, or to prevent abuse of the process of the

Court”.

18. Bare reading of Section 151 CPC makes it clear that the Court can exercise its

inherent power, if the same is necessary for the ends of justice or to prevent

the abuse of the process of the Court. The scope and ambit of Order XI Rule 41

and Order XI Rule 21 CPC have been subject of discussion in various

judgments and the detailed deliberation on this point may be found in a

judgment of High Court of Delhi in Maj. (Retd.) Sukesh Behl & Anr. vs.

Koninklijke Phillips Electronics N.V., 2016 Vol.3 AD (Del)315. Hon'ble Division

Bench of High Court of Delhi examined in detail the question relating to the

consequences of dismissal of the suit or striking out defense for failure to

comply with the order for production under Order XI Rule 14 CPC. The Division

Bench after considering the judgment of Madras High Court in Sithamalli

Subbayyer vs. M.L.M. Ramanathan Chettiar , (1924) 46 MLJ 350, Lyallpur

Sugar Mills Co. Ltd. and Anr. vs. Ram Chandra Gur Sahai Cotton Mills Co.

Ltd., AIR 1922 Allahabad 235, Koduri Krishnarao vs. State of Andhra, now

Andhra Pradesh represented by Secy, to the Govt. (Public Works Dept.)

Hyderabad, AIR 1962 AP 249, (Sahu) Munna Lal vs. Tara and Anr., AIR 1929

Allahabad 83,Chinnappan vs. Ramachandran, AIR 1989 Madras 314, Ms. Gur

Prasad Shyam Babu and Ors. vs. State Bank of India and Anr, AIR 1994

Allahabad 151, Manohar Das vs. Darbara Singh and Anr., AIR 1933 Lahore

248, Shri Baba Shiva Sambhu vs. Raj Mohan Deb Nath, AIR 1966 Tripura

16,inter alia, held as under:

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“These cases clearly establish the principle that the non-

compliance with an order under O. 11 R. 14 does not and cannot

warrant the dismissal of the suit of a plaintiff or the striking off of

the defence of the party which is guilty of the non-compliance of

the order as such non-compliance does not fall within the ambit of

the three grounds which are stated in the rule and which only

would justify the striking off of the defence. It may further be

pointed out in this connection that where a party fails to produce

certain documents under O. 11 R. 14, the Court would be entitled

to raise an adverse presumption against the party on account of

the non-production of the documents required, but that would not

justify its dismissing a suit in the case of a plaintiff or striking off

of the defence in the case of a defendant. It has to be emphasised

in this connection, and I would do so even at the risk of repetition,

that the provisions of this rule are of a very drastic nature, and it

is only in rare cases that the penalty contemplated under the rule

should be resorted to. Bearing these principles in mind, I have no

hesitation in coming to the conclusion that the order passed by the

Court of first instance dismissing the suit of the plaintiff was

wholly without justification and that in passing that order the

Court exercised jurisdiction which did not vest in it in accordance

with law…….

21. The consistent view taken by various High Courts across the

country for a considerably long period of time i.e. nearly over 90

years is that an order under 11 order rule 14 is merely an order to

produce documents. Non compliance of the said order may have

several consequences, but the set of consequences as stipulated

by order 11 rule 21 is not one of them. The court is not given

discretion under rule 21 to dismiss the suit for non prosecution or

strike out the defence in case of non compliance of the order of

production. Various other measures may be

available/consequences provided for dealing with a failure to

comply with an order of production under order 11 rule 14,

however, we are not in the present case called upon to deal with

the said issue.

22. The impugned order is an order made under Order 11, Rule

14. The non-compliance of that order does not warrant the striking

out of the defense of the appellant. The grounds upon which the

discretion is given to a Court to strike out the defence of a

defendant are given in Rule 21 of Order 11 CPC. According to the

said rule, there are three grounds only upon which a Court is

justified in striking out the defence of a defendant or in dismissing

the suit of a plaintiff, namely, (1) the refusal to answer

interrogatories, (2) the refusal to make discovery of documents, (3)

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refusal to permit inspection of documents. Rule 14 of Order 11

CPC does not relate either to the answering of interrogatories or

the discovery or inspection of documents and the rule relating to

discovery is embodied in Rule 12 of Order 11 and the rule relating

to the inspection of documents is to be found in Rule 18 of order

11. In the present case the learned Judge has not passed any

order either under Rule 12 or Rule 18 of Order 11 CPC. An order

under Rule 14 is clearly not covered within the ambit of rule 21.

23. Further, an order for production under order 11 rule 14 CPC

does not decide or affect any vital and valuable rights of the

parties or decide matters of moment. In any event, prior to passing

any order under order 11 rule 21, the court is to put the defaulting

party to notice and give him an opportunity of being heard. The

impugned order does not satisfy the test as laid down in Shah

Babulal Khimji (Supra) and as such the present appeal is not

maintainable”

19. Thus, the bare perusal of this judgment would make it clear that non-

compliance of Order XI Rule 14 CPC cannot be followed with the dismissal of

the suit or striking off a defense. It has also been made clear that an order

under Order XI Rule 21 CPC can be passed only in the following three

circumstances:

i) The refusal to answer interrogatories;

ii) The refusal to make discovery of document; and

iii) Refusal to permit inspection of documents.

20. It is also pertinent to mention here, that the Order under Order XI Rule 14 CPC

does not decide or affect any vital and valuable right of the parties. It is also

pertinent to mention here that an order for striking off defence under Order XI

Rule 21 CPC can be passed only upon an application being moved by either of

the parties. The Hon'ble Division Bench of High Court of Madhya Pradesh in

Archdiocese of Bhopal Registered Society vs. Hasan Kabir, 2009 (4) MPLJ 530,

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while dealing with the interpretation of Order XI Rule 14 of CPC and Order XI

Rule 21 of CPC, inter alia, held as under:

“(8.) A bare reading of Rule 21 of Order 11 CPC makes it clear that

the provision entails non-compliance of the order to answer

interrogatories. Interrogatories are dealt with under Rule 1 to Rule

11 of Order 11. Rule 12 of Order 11 CPC deals with application for

discovery of documents. Inspection of the documents which is

referred to in Rule 21 is again dealt with in Rule 15 to 18 of Order

11 CPC. The Order 11 Rule 1 CPC enables party to a suit to make

discovery by interrogatories by leave of Court. Rule 2 of Order 11

CPC provides that particular interrogatories to be submitted to the

Court, and factors to be taken into consideration. Order 11 Rule

11 provides that when any person omits to answer or answer

insufficiently the court may on application, direct to answer or

further answer. The Court orders discovery of document under

Rule 12 of Order 11 CPC. The Rule 18 of Order 11 CPC provides

that where the party served with notice under rule 15 omits to

give such notice of a time for inspection or objects to give

inspection, or offers inspection elsewhere than at the office of his

pleader, the Court may, on the application of the party desiring it,

make an order for inspection in such place arid in such manner as

it may think fit. In case plaintiff fails to comply with any order to

answer interrogatories, or for discovery or inspection of

documents, be liable to have his suit dismissed for want of

prosecution. In case of defendant not complying with the

provision, his defence can be struck off and he may be placed in

the same position as if he had not defended. It is further required

that party interrogating or seeking discovery or inspection may

apply to the Court for an order to that effect and by way of

amendment which has been inserted with effect from 1.2. 1977

the order may be made under Order 11 Rule 21 CPC after notice

to the parties and after giving them reasonable opportunity of

being heard. The sine, qua non for exercising the power under

Rule 21 is failure to answer the interrogatories, order of discovery

or inspection of documents. Non-compliance of Rule 14 which is

with respect to production of documents is not covered under rule

21 CPC.Legislature has thought it appropriate in case of plaintiff if

he fails to comply with the order relating to interrogatories,

discovery or inspection of documents a suit be dismissed or in

case of defendant his defence may be struck off. Legislature in its

wisdom has not included in Rule 21 of order 11 CPC such a penal

consequence due to non-compliance of order passed under Order

11 Rule 14 CPC. Moreover in the instant case, it is not in dispute

that no application was filed for dismissal of suit under Order 11

14

Rule 21 CPC which is condition precedent for exercise of the

power under the aforesaid provision, thus, even assuming for a

moment that aforesaid provision was applicable, it was not open

for the trial Court to have passed the order dismissing the suit. An

order under Order 11 Rule 21 CPC can be passed only on an

application and that too after giving notice to the parties and

giving them reasonable opportunity of being heard. It is also

provided in sub-rule (2) of Rule 21 of Order 11 that once suit is

dismissed under sub-rule (1) of Rule 21 of Order 11 CPC, the

plaintiff shall be precluded from bringing a fresh suit on the same

cause of action. This dire consequence is not provided with respect

to non-compliance of Order 11 Rule 14 CPC, but it is the

consequence of noncompliance of order of interrogatories,

interrogatories are dealt with in Rule 1 to Rule 11 of Order 11

CPC. Rule 12 deals with discovery and Rule 15 to 18 deals with

inspection of documents. The non-compliance as to aforesaid is

covered within the ken of penal provisions contained in Rule 21 of

Order 11 CPC.

(9.) In Premraj Bheoraj Agarwal vs. Nathumal Rupchand Marwadi

(supra) there was an application moved for inspection of

documents which was allowed by the Court. Court has, directed

production of account bills which was not produced, in that

context observation has been made that Order 11 Rule 21 CPC,

provides the penalty for non-compliance of such a direction. Order

11 Rule 14 CPC has also been referred. When the documents are

in power of the Court, it was held that the Court would have no

jurisdiction to proceed under. Order 11 rule 21 CPC. If it could not

have proceeded under that rule, it could not have proceeded under

the general provision of Section 25 of Provincial Insolvency act.

Thus, dismissal of the suit was set aside. The decision has to be

seen in the context that Court has ordered inspection of

documents and consequent production, inspection is dealt with

under Rule 15 to 18 of Order 11 CPC.

(10.) In Chinnappan vs. Ramachandran AIR 1989 Madras 314 it

was laid down that failure to produce the documents directed to

be produced by an order of Court passed under Order 11 Rule 14

CPC does not enable the Court to exercise its powers under Order

11 Rule 21 CPC. Such an application is misconceived and not

maintainable.

(11.) In Prem Sukh Chunder and others vs. Indronath Banerjee

ILR 1891 18 Cal 420, Shankar Deoba Patil and another vs.

GanpatilalShiodayalChamedia AIR 1971 Bombay 87, Koduri

Krishnarao vs. State of Andhra, now Andhra Pradesh represented

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by Secy, to the Govt. (Public Works Dept.) Hyderabad AIR 1962

Andhra Pradesh 249, Chander Bhan Singh vs. Lallu Singh and

another AIR 1947 Allahabad 343, Ram Kishun Lal and others vs.

Abu Abdullah Syed Hussain Imam AIR 1943 Patna 69 and in

Devakaranbholaram and others vs. SangidasJesiram and others

AIR 1925 Born 386, it has been laid down that in the absence of

an order under Rules 11,12 or 18 and the disobedience thereof by

the party against whom the order is made, the Court cannot act

under Rule 21 Order 11 CPC.

(12.) An order for production of documents Rule 14 of Order 11

CPC is not one of the orders mentioned in Rule 21 of Order 11

CPC. A disobedience of an order for production under Rule 14 of

Order 11 CPC would not empower the court to take action under

Rule 21 of Order 11 CPC has been laid down in G. Kishan Rao vs.

B. Narayan Reddy ILR 1970 Andh Pra 1203, M/s Gur Prasad

Shyam babu and others vs. State Bank of India and another AIR

1994 Allahabad 151, Lyalpur Sugar Mills and Co. and another vs.

R. C. G. Sahai Cotton Mills and Co. AIR. 1922 Allahabad 235,

(Sahu) Munna Lal vs. Tara and another AIR 1929 Allahabad 83,

Subbayyar vs. M. LM. Ramanathan Chettiar 1924 Madras 582,

Amarsingh vs. Chaturbhuj and others AIR 1957 Rajasthan 367

and in Shri Baba Shiva Sambhu and another vs. Raj Mohan Deb

Nath and others AIR 1966 Tripura 16.

(13.) The Apex Court in M/s Babbar Sewing Machine Co. vs. Tirlok

Nath Mahajan (supra) has considered the provision of Order 11

Rule 21 CPC and it has been observed that power for dismissal of

a suit or striking out of the defence under Order 11 Rule 21 CPC

should be exercised only where the defaulting party fails to attend

the hearing or is guilty of prolonged or inordinate and inexcusable

delay which may cause substantial or serious prejudice to the

opposite party. There was joint application under Rule 14 and

Rule 18 of Order 11 CPC for production and inspection of

documents. In the instant case, there was no application or order

under Order 11 Rule 18 CPC. Thus, decision of Apex Court is in

the context of Order 11 Rule 18 CPC.

(14.) A single Bench decision of this Court in Indore Development

Authority, Indore vs. Satyapal Anand and another (supra) has

been relied upon in which learned single Judge of this Court has

opined that suit can be dismissed under Order 11 Rule 21 CPC in

case there is failure to comply with the order passed under Order

11 Rule 14 CPC. We are unable to agree with the view taken in

Indore Development Authority, Indore vs. Satyapal Anand and

another (supra) in view of clear language of the rule and number

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of decisions of the various High Courts on this aspect. We hold

that law has not been correctly laid down in the aforesaid

decision.

(15.) In view of above, we hold that due to non-compliance of

provision under order 11 Rule 14 of CPC suit cannot be dismissed

under Order 11 Rule 21 CPC. It can be dismissed only in the

exigencies such as due to non-compliance of orders of

interrogatories, discovery or inspection as envisaged under Order

11 rule 21 CPC”.

21. The bare perusal would make it clear that Order XI Rule 21 can be passed only

for the non-compliance of Order of interrogatories, discovery, or inspection as

envisaged under Order XI Rule 1,12, and 18of CPC. In M/s. J.S. Construction

Pvt. Ltd. vs. Damodar Rout, AIR 1987 Orissa 207 while dealing with the

interpretation of Order XI Rule 14 and Order XI Rule 21CPC it was, inter alia,

held that before issuing a direction under Order XI Rule 14 of CPC the Court

has to be satisfied that the document in question is relevant for proper

adjudication of the matter involved in the suit. This power cannot be exercised

to cause a roving enquiry to fish out information, which may not be relevant for

the disposal of the suit.

22. Learned counsel for the petitioner in CO 3434 of 2011 has relied upon the

judgment of Balmer Lawrie and Company Ltd. vs. Assam Brook Estates Ltd.

and Anr., AIR 1979 Calcutta 64 wherein it was, inter alia, held that if there is a

provision for filing an appeal, the same cannot be substituted by exercising its

inherent jurisdiction under Section 151 CPC. There cannot be any quarrel to

this settled proposition. However, the question is that whether the purported

order under Order XI Rule 21 actually falls within the purview of Order XI Rule

21 CPC or not. The Court cannot merely be guided by the mentioning of the

17

provision in the patently illegal order. Learned counsel for the petitioner in CO

3434 of 2011 has also relied upon M/s. Babbar Sewing Machine Company vs.

Trilok Nath Mahajan, (1978) 4SCC 188, wherein it was, inter alia, held that the

provisions of Order XI Rule 21 CPC should be applied only in extreme cases,

where there is contumacy on the part of the defendant or a willful attempt to

disregard the order of the Court is established.

23. Even at the cost of repetition, it may be reiterated that in the notice dated

February 4, 2009 the plaintiff has not given even an iota of reason that how the

documents sought to be produced are necessary for the fair disposal of the suit

or the same are relevant for proper adjudication of the matter in the suit. It is

also pertinent to mention that even in the application filed by the plaintiff there

is no mention of any provision of the CPC. The application is also totally silent

about the relevance of the documents sought to be produced. The plaintiff

merely stated that non-production of the same shall prejudice the plaintiffs. It

is also worth mentioning that the learned Trial Court passed an order on May

18, 2009 wherein also there was no recording of any satisfaction that the

document sought to be produced are relevant for proper adjudication of the

matter in dispute.

24. It is relevant to note that after passing of the order the matter was taken up on

June 15, 2009 and July 29, 2009 and, thereafter, vide order dated December

3, 2009 the Learned Trial Court proceeded to strike off the defense under Order

XI Rule 21 CPC which seems to have been wrongly typed as under Section 21.

It is a matter of record that no application for striking off the defense was

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made. In the impugned order, there is no mention of any willful default,

neglect, or contumacy on the part of the defendant. The question is whether

such an order can be as treated Order XI Rule 21 CPC, merely because the

Learned Trial Court has simply mentioned the same. Neither in the notice nor

in the application the plaintiff has mentioned any such provision.

25. Even for the sake of argument, if it is taken that the Learned Trial Court

passed an Order 11 Rule 14 CPC. In that case the court, without any

application having been moved by the plaintiff under Order XI Rule 21 CPC,

and without giving any opportunity of being heard, could not have passed the

order of striking off the defence. This Court considers that such an order being

patently illegal and violative of basic principle of natural justice shocks the

conscious of the Court and thus, it is liable to be set aside to ensure that

further illegality is not perpetuated.

26. In respect of CO No. 1032/2012, certainly, there is a delay on the part of the

defendant Resident Welfare Association in challenging this order. However, the

Court is of the firm view that the procedure is a handmaid of justice if there is

a patent illegality, the same is liable to be corrected at the first instance.

27. The discussion made hereinabove makes it clear that in order to exercise the

extreme power of striking of the defense there has to be prolonged, inordinate,

and inexcusable delay and it also must be demonstrated that such non-

production has caused substantial or serious prejudice. It is also to be borne in

mind that striking of the defense is a harsh order, which is punitive in nature

and, therefore, can only be done after issuing the show cause. In present case

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the petitioner in CO 3434 of 2011 issued a notice for production of certain

documents without explaining their relevance. Learned Trial Court passed an

order for the production of such documents, and for the non-production of the

same, struck off the defense purportedly under Order XI Rule 21 CPC. There is

nothing in the record to suggest that there was inordinate, inexcusable or

prolonged delay. There was also no show-cause issued or an opportunity of

being heard was afforded to the defendant to show cause that why the defence

be not struck off. This Court while exercising is revisional jurisdiction is duty

bound to correct, if any, patent illegality has come to its notice. Order dated

December 3, 2009 on the face of it is patently illegal and falls under the

category of non-est. All subsequent orders which are subject matter of

challenge i.e., July 13, 2011 and August 10, 2011 are also liable to be set aside

as the basis of such orders being non est, these orders also cannot be

sustained. Thus, the order dated December 3, 2009, July 13, 2011 and August

10, 2011 are set aside.

28. Thus, in view of the discussions made herein above, the questions as framed in

para 10 are answered as follows:

(i) “The order dated December 3, 2009 is not legally sustainable

being non est;

(ii) The order being patently illegal, the Court is well within its

power to exercise its inherent powers and can set aside the

same So as to ensure that illegality is not further

perpetuated; and

(iii) Though there is no limitation prescribed for filing the petition

under Article 227 of Constitution of India. However, the

Courts have always ensured that there should not be any

20

delay or latches. In the present case in view of the peculiar

facts and circumstances of the present case the Court

considers that it is necessary to decide the petition on merits

so as to ensure that substantial justice is imparted; and

(iv) In view of the discussion made hereinabove the order dated

December 3, 2009 and subsequent orders dated July 13,

2011 and August 10, 2011 are set aside. The matter is

remanded back to the Learned Trial Court to start de novo

from this stage where it was before passing an order dated

December 3, 2009. The Learned Trial Court will conduct the

proceeding expeditiously and shall fix the matter minimum

for two days a week and ensure that the suit is decided

within the period of six months. The Court shall hear and

decide the matter independently of any order passed by this

Court. The learned Registrar General shall list the matter

before the Court in the month of January, 2027 along with

compliance report to be sent by the learned Trial Court”.

29. In view of the discussion made hereinabove and thus, both the petitions are

disposed of. No order as to cost.

30. All parties shall act on basis of the server copy of this judgment duly

downloaded on the official website of this Court.

(Dinesh Kumar Sharma, J.)