Rajasthan High Court – Jodhpur
Om Prakash And Ors vs Balwant And Ors on 26 February, 2026
[2026:RJ-JD:8652]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1393/2008
1. Legal Representatives of Shri Om Prakash
son of Shri Rang Lal:-
1/1. Smt. Lalita Devi wife of Late Shri Om Prakash
1/2. Deepak Kumar son of Late Shri Om Prakash
both by caste Agarwal Mahajan, resident of
Tehsil Bhadra, District Hanumangarh.
2. Bihari Lal son of Shri Rang Lal
3. Ved Prakash son of Shri Rang Lal
both by caste Mahajan, resident of Bhadra,
Tehsil Bhadra, District Hanumangarh.
----Appellants/Plaintiffs
Versus
1. Balwant son of Shri Sheochand
2. Bhup Singh son of Shri Sheochand
3. Pradeep son of Shri Balwant
4. Kuldeep son of Shri Balwant
5. Mst. Ramheti wife of Balwant
6. Ashok Kumar son of Shri Bhup Singh
7. Chandro wife of Bhup Singh
all by caste Jat, resident of Dhani Berwalan,
Tehsil Bhadra, District Hanumangarh.
----Respondents/Defendants
For Appellant(s) : Mr. Gopi Ram Goyal
For Respondent(s) : Mr. Amit Saran
Mr. Raj Bishnoi
Mr. S.S. Gour
HON'BLE MR. JUSTICE SANDEEP SHAH
Judgment
REPORTABLE
1. Date of conclusion of arguments 13.02.2026
2. Date on which judgment was reserved 13.02.2026
3. Whether the full judgment or only the
operative part is pronounced: Full Judgment
4. Date of pronouncement 26.02.2026
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1. By way of filing the present Civil Miscellaneous Appeal under
Order XLIII Rule 1(f) CPC, 1908, the appellants-plaintiffs have
challenged the order dated 03.09.2008 passed by the learned
Additional District Judge, Bhadra in Civil Suit No.08/2003 (Om
Prakash & Ors. v. Balwant & Ors.), whereby the application filed
by the respondents/defendants under Order XI Rule 21(1) CPC
was allowed and the suit was dismissed on the ground of alleged
non-compliance, of the order dated 23.03.2006 passed by learned
Trial Court, by the appellants.
Factual Matrix:-
2. Succinctly stated, the facts are that the appellants-plaintiffs
filed a suit alleging therein that the lands, particulars whereof are
in paragraphs no.1 and 2 of the plaint, were owned by respondent
Nos.1 and 2, who had agreed to sell the same to the appellants
for a total consideration of Rs.6,30,000/-. Pursuant to the verbal
agreement, a written agreement dated 09.04.2001 was executed,
and the appellants-plaintiffs paid a sum of Rs.5,57,000/- by
different cheques, with a specific understanding that the balance
amount of Rs.73,000/- would be paid at the time of registration of
sale deed. The period for execution of the sale deed was fixed as
two years. According to the appellants-plaintiffs, they regularly
contacted the respondents-defendants, and the defendants asked
the appellants-plaintiffs to be present for registration on
01.04.2003, however, the respondents-defendants did not turn
up.
2.1. Upon inquiry initiated by the appellants-plaintiffs at the
office of the Patwari on 17.06.2003, they came to know that
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respondent Nos.1 and 2 had filed a suit for transfer of the lands in
favour of their sons and wives and, by virtue of a judgment and
decree dated 20.09.2002, the lands in question had been
transferred in the names of respondent Nos.3 to 7, i.e., the sons
and wives of respondent Nos. 1 and 2. Further, the revenue
records also reflected the names of respondent Nos.3 to 7.
Consequently, the appellants-plaintiffs filed a suit for specific
performance of the agreement dated 09.04.2001 along with other
reliefs on 03.07.2003.
3. After receipt of notice, the respondents filed a written
statement, alleging that the appellants and their father, Shri
Ranglal, originally resided at Village Nethrana but later shifted to
Bhadra, where they were running a cloth shop and an electrical
equipment shop on the Bhadra main road. It was further alleged
that the appellants were engaged in the business of purchasing
grains from farmers. The defendants stated that since 1995-96,
they had also been selling their produce to the appellants and on
09.04.2001, they approached the appellants for a sum of
Rs.1,10,000/- as they were in need of money. The appellants
advanced the said amount; however, under the pretext of
preparing certain documents for income tax purposes, the
appellants fraudulently obtained their signatures on the
agreement in question. The respondents-defendants further
stated that they had repaid the entire amount taken on
09.04.2001 and, despite the same, the appellants were showing
an outstanding amount of Rs.4,48,416/-. Thus, they prayed for
dismissal of the suit.
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3.1 That on 24.08.2005, respondent Nos.1 and 2 filed an
application under (without specifying any Provision/Rule/Order,
under which the same was filed), stating therein that, as asserted
in the written statement, the defendants had been engaged in
business transactions with the appellants since the year 1995-96.
To substantiate the same, appellant Om Prakash had provided
photocopies of the account books to the defendants for the period
from 23.05.1999 to 05.05.2001, which formed part of the record
of the case, wherein the entry dated 09.04.2001 was also
reflected. It was further asserted that the said entry was made by
appellant-Om Prakash himself and that the original record was in
his possession. It was thus contended that there was a
requirement to produce the original record, as the statements of
the appellants were to be recorded by the learned Trial Court. The
respondents-defendants, therefore, prayed for production of the
original account books of appellant-Om Prakash for the period
from 23.05.1999 to 05.05.2001. The prayer made was under:-
“fygktk nj[okLr is’kdj fuosnu gS fd oknhx.k dks vkns’k fn;k tkos fd os
izfroknhx.k }kjk oknh vkseizdk’k ds gkFk ls fy[ks x,s fn0 23-05-99 ls fnukad
5-5-2001 rd ds fglkc dk fooj.k dh ewy cgh;k tks oknhx.k ds dCtk esa gS
dks U;k;ky; esa is’k djsA”
4. The appellant-Om Prakash filed a reply on 27.01.2006 to the
above-mentioned application and submitted that the original
documents prayed for pertained to the accounts maintained by his
father, Shri Ranglal, who resides at Village Nethrana, whereas the
appellant-Om Prakash resides at Bhadra, where he carries his own
business. He further submitted that the respondents had
requested for the entries maintained by his father, and, therefore,
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when he visited Nethrana, he got the entries as requested by the
respondents, written in his own hand and furnished the same to
the respondents. He further submitted that he is not in possession
of the original record, as the same belongs to his father. It was
further asserted that, as far as the entry dated 09.04.2001 is
concerned, the amount in question was paid by cheque, in respect
whereof, the entry has already been produced by the appellants
before the learned Trial Court.
5. The matter was thereafter considered by the learned Trial
Court on two different applications, i.e., one filed by the
respondents as stated above, and the another filed by the
appellants as well. As per the order sheet dated 23.03.2006, the
appellants agreed to produce the documents as demanded by the
respondents. Consequently, a consent order was passed on
23.03.2006 itself, directing the appellants to produce the account
books, the details whereof were mentioned in the application, on
the next date of hearing. The relevant portion of order dated
23.03.2006, is as under:-
“odqyk; Qjhdsu mifLFkrA oknh o izfroknh nksuksa i{kksa }kjk izLrqr
nj[okLrs 011R12CPC ij cgl lquh x;hA nj[okLrksa ds lkFk
izLrqr gYQukeksa dk voyksdu fd;kA oknh us izfroknh dh nj- esa
le; vof/k esa cgh[kkrk izLrqr djus dh lgefr tkfgj dhA okafNr
nLrkost lqlaxr gksus ds dkj.k izfroknh dh nj- fnukad 24-08-2005
Lohdkj dj vkns’k fn;k tkrk gS fd oknh viuh cgh[kkrk tkss nj- esa
of.kZr gS] vk;ank is’kh ij U;k;ky; esa izLrqr djsA”
5.1 A perusal of the order in question will reveal that, though it
was shown to have been passed under Order XI Rule 12 CPC, the
language of the order, which required the appellants to produce
the documents, specifically indicates that the same was passed
under Order XI Rule 14 CPC and not under Order XI Rule 12
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CPC, which only provides for passing an order for filing an affidavit
with regard to discovery of documents or essentially with regard
to the availability of the documents with the party concerned.
5.2 On 20.09.2006, another application came to be filed by the
respondents, asserting that, despite the order dated 23.03.2006,
the appellants had not produced the relevant record. It was
submitted that photocopies of the documents were already part of
the record; however, the original account books had not been
placed on record by appellant Om Prakash. Therefore, a request
was made for compliance with the order dated 23.03.2006 by
directing the appellants to produce the documents in question.
The above-mentioned application was replied to by the appellants
on 10.01.2007, while asserting in their affidavit that they had
already clarified that they were not in possession of the original
account books of Shri Ranglal, qua which photocopies were
already part of the record. It was further submitted that, as far as
the account books of the appellants for the period in question
were concerned, the same had been brought by the appellants
and shown to the counsel for the respondents; thus, compliance
with the order dated 23.03.2006 had been made by the
appellants. However, as far as the account books of Shri Ranglal
were concerned, the appellants stated that the same were not in
their possession and, therefore, could not be produced.
6. The learned Trial Court thereafter proceeded to hear the
arguments and, vide order dated 30.11.2007, dismissed the
application dated 20.09.2006 filed by the respondents for
discovery and production of documents, while observing that
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documents which are not in the possession of a party cannot be
directed to be produced. It was further observed that, if the
respondents were aggrieved, they could proceed in accordance
with Section 65 of the Evidence Act. Aggrieved thereby, the
respondents filed a writ petition before this Court, being S.B. Civil
Writ Petition No.8283/2007 (Balwant Singh & Anr. v. Om Prakash
& Ors.), which came to be dismissed by this Court vide order
dated 17.12.2007, with the following observations:-
“Heard learned counsel for the petitioners.
It appears that the petitioners-defendants submitted an
application under Order 11 Rule 12 CPC for discovery of
documents, upon which, the plaintiffs-non-petitioners
agreed that they will produce the relevant documents. On
this statement, the trial court passed the order dated 23 rd
March, 2006 and directed the plaintiffs to produce the
relevant books of accounts. The plaintiffs did not produce
the said books of accounts then the defendants-
petitioners again submitted an application on 20th Sept.,
2006 and complained that plaintiffs have not produced
the books of accounts and, therefore, direction may be
issued to the plaintiffs to produce the books of accounts
in court. Said application was dismissed by the trial court
vide order dated 20th Nov., 2007 on the ground that
plaintiffs stated that some of the books of accounts they
have already shown to the counsel and rest of the books
of accounts are not in their power and possession. The
trial court observed that in that situation, the petitioners-
defendants may seek permission to produce secondary
evidence and the trial court rejected the petitioner’s
application vide order dated 30th Nov., 2007, hence, this
writ petition.
It is clear from the order dated 23rd March, 2006
that the court already passed the order for production of
the documents against the plaintiffs- non-petitioners.
Despite this order, if the plaintiffs have not produced the
books of accounts then the procedure as provided under
rest of the provisions under Order 11 CPC could have
been followed and ultimately an application under sub-
rule (1) of Rule 21 of Order 11 CPC could have been
submitted, but the petitioners submitted the application
for same relief, which was granted by the trial court vide
order dated 23rd March, 2006.
Be that as it may be, it will be relevant to mention
here that in case despite the order of the court dated
23rd March, 2006 if the plaintiffs-non- petitioners have
not submitted the books of accounts then the
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[2026:RJ-JD:8652] (8 of 26) [CMA-1393/2008]the court to draw adverse inference for non-production of
the documents and also seek any relief and so far as
further order for production of the documents is
concerned, the same could not have been obtained. So
far as trial court’s observation that the petitioners-
defendants can seek permission to produce secondary
evidence is concerned, that may be very much
appropriate relief to the petitioners because of the reason
that the petitioners can seek permission to produce
secondary evidence only when other party failed to
produce the documents and petitioners have the copies
of the documents. If they possess the copies of the
documents then they can certainly produce the copies of
the documents. The trial court may pass appropriate
order after the trial after taking into account all the facts
of petitioners’ moving application for production of the
documents and court’s order for production of document
dated 23rd March, 2006 and therefore, I do not find any
reason for interfering in the impugned order.
In view of the above, the writ petition of the
petitioner is dismissed.”
7. After passing of the above-mentioned order, the respondents
filed an application under Order XI Rule 21 CPC, on 08.01.2008
asserting that since the appellants had failed to comply with the
order dated 23.03.2006, the suit filed by the appellants deserved
to be dismissed, as the relevant books of account, which was
agreed to be produced on record, had not been produced. The
respondents also referred to the order dated 30.11.2007 passed
by learned Trial Court while filing the application in question. The
appellants filed a reply on 01.03.2008 to the above-mentioned
application and submitted that the provisions of Order XI Rule 21
CPC were not applicable and there was no direction in the order
dated 30.11.2007 passed by learned Trial Court granting any
liberty to the respondents to file an application under Order XI
Rule 21 CPC. The appellants further stated that the record
available with them had already been filed and, even otherwise,
the learned Trial Court as well as the High Court had granted
liberty to the respondents to proceed under Section 65 of the
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Evidence Act, if they were aggrieved by non-production of the
original documents. Thus, no case for dismissal of the suit under
Order XI Rule 21 CPC was made out.
8. The learned Trial Court thereafter proceeded to consider the
arguments and, vide its impugned order dated 03.09.2008, held
that the case in hand falls within the four corners of Order XI Rule
21(1) CPC and since there was deliberate non-compliance of the
order dated 23.03.2006, the suit filed by the appellants deserved
to be dismissed. Being aggrieved thereof, the present Civil
Miscellaneous Appeal has been filed.
Arguments on behalf of counsel for the appellants/plaintiffs:
9. Mr. Gopi Ram Goyal, learned counsel for the appellants-
plaintiffs, submits that the learned Trial Court failed to consider
that, insofar as the documents available with the appellants were
concerned, they had agreed to place on record the account books
available with them, for which, a specific noting was also made in
the order dated 23.03.2006 itself. He submitted that the same
were produced before the learned Trial Court and were also shown
to the counsel for the respondents. As per the averments of the
respondents themselves, the photocopies of the documents in
question were already part of the record. Thus, there was no
occasion for the learned Trial Court to dismiss the suit filed by the
appellants. He further submitted that the appellants had clarified
that the documents in question were in handwriting of Om
Prakash, which he had copied from the account books of his
father, and the appellants were not in possession of their father’s
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account books. Learned counsel thus submitted that, in view of
the aforesaid averments, the subsequent application filed by the
respondents had already been dismissed by the learned Trial Court
vide order dated 30.11.2007, which order was affirmed by the
Hon’ble High Court also.
9.1 Learned counsel further submitted that, since there was no
specific order, there was no question of compliance therewith and,
therefore, the impugned order has been wrongly passed, while
assuming that the jurisdiction, not vested with the learned Trial
Court. Learned counsel further submitted that the learned Trial
Court misconstrued the order dated 17.12.2007 passed by this
Hon’ble Court while deciding the earlier writ petition filed by the
respondents-defendants. Referring to the judgment dated
17.12.2007 passed by a Coordinate Bench of this Court in S.B.
Civil Writ Petition No.8283/2007 (Balwant Singh & Anr. v. Om
Prakash & Ors.), it was submitted that the High Court nowhere
granted liberty to file an application under Order XI Rule, 21(1)
CPC and had instead observed that, in case the defendants-
petitioners were aggrieved, they could request the Court to draw
an adverse inference for non-production of the documents or
could avail the remedy under Section 65 of the Evidence Act for
leading secondary evidence, as photocopies of the documents
were already available with the respondents-defendants and
were, rather part of record. Thus, he submitted that the learned
Court below has wrongly assumed that any liberty had been
granted by this Court to the respondents to file an application
under Order XI Rule 21 CPC. Learned counsel further submitted
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that initiation of proceedings under Order XI Rule 21 CPC is to be
resorted in the rarest of rare cases and cannot be invoked in a
routine manner.
9.2 To buttress his submission, learned counsel relies upon the
judgment passed by the Hon’ble Apex Court in the case of
Babbar Sewing Machine Co v. Trilok Nath Mahajan, reported
in 1978 4 SCC 188, wherein the Hon’ble Apex Court has held in
paragraph Nos.14, 15 and 16, which read as under:-
“14. Even assuming that in certain circumstances the
provisions of order Xl rule 21 must be strictly enforced, it
does not follow that a Suit can be lightly thrown out or a
defence struck out, without adequate reasons. The test
laid down is whether the default is wilful. In the case of a
plaintiff, it entails in the dismissal of the suit and,
therefore, an order for dismissal ought not be made under
order XI rule 21, unless the court is satisfied that the
plaintiff was willfully withholding information by refusing
to answer interrogatories or by withholding the documents
which he sought to discover. In such an event, the
plaintiff must take the consequence of having his claim
dismissed due to his default, i.e. by suppression of
information which he was bound to give: Denvillier v.
Myers.(2) In the case of the defendant, he is visited with
the penalty that his defence is liable to be struck out and
to be placed in the same position as if he had not
defended the suit. The power for dismissal of a suit or
striking out of the defence under order XI rule 21, 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.
15. It is well settled that the stringent provisions of
order XI rule 21 should be applied only in extreme cases,
where there is contumacy on the part of the defendant or
a wilful attempt to disregard the order of the court is
established.
16. An order striking out the defence under order XI
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[2026:RJ-JD:8652] (12 of 26) [CMA-1393/2008]there has been obstinacy or contumacy on the part of the
defendant or wilful attempt to disregard the order of the
court. The rule must be worked with caution, and may be
made use of as a last resort:”
9.3 Learned counsel thus submitted that it was not a case
wherein obstinacy or contumacy on the part of the appellants-
plaintiffs or a wilful attempt to disregard the order of the Court
was established. Learned counsel further placed reliance upon the
judgment passed by a Coordinate Bench of this Court in Faiz
Mohammed v. Bulaki Khan, in S.B. Civil Miscellaneous Appeal
No.990/2010, decided on 26.10.2010, wherein, while relying upon
the judgment of the Hon’ble Apex Court in Babbar Sewing
Machine Co. (supra), this Court had held that mere non-
production of a document, despite an order, would not make out a
case for exercising jurisdiction under Order XI Rule 21(1) CPC and
that the said power can be exercised only in exceptional
circumstances. Learned counsel, therefore, prayed for quashing
and setting aside the impugned order with directions to the
learned Trial Court to proceed with the trial expeditiously.
Arguments on behalf of counsel for the respondents/defendants:
10. Per contra, Mr. Amit Saran, Mr. Raj Bishnoi and Mr. S.S. Gour,
learned counsel for the respondents-defendants, while supporting
the impugned order, argued that the learned Trial Court had
considered the provisions under Order XI Rule 21(1) CPC and had
also considered the entire record threadbare prior to passing the
impugned order. The Court below has rightly observed that it was
a case of wilful default on the part of the appellants-plaintiffs in
complying with the order dated 23.03.2006 and, thereafter, rightly
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dismissed the suit in question. Learned counsel further argued
that, in the earlier round of litigation, this Hon’ble Court itself had
specified that the respondents-defendants were free to file an
application under Order XI Rule 21(1) CPC, rather than filing an
application seeking the same relief, which had already been
granted by the learned Trial Court on 23.03.2006. Learned
counsel, therefore, submitted that the respondents had rightly
filed the application in question, which was considered by the
learned Trial Court in its correct perspective.
10.1 Learned counsel also placed reliance upon the judgment
passed by the Hon’ble Apex Court in Babbar Sewing Machine Co.
(supra), while asserting that, if the Court comes to the conclusion
that obstinacy or contumacy on the part of the appellants-
plaintiffs is proved and a wilful attempt is made to disregard the
order of the Court, then the Court should exercise powers under
Order XI Rule 21(1) CPC. In the present case, the obstinacy or
contumacy of the appellants and their wilful default was
established, inasmuch as, they had agreed to submit the
documents and, based on their agreement, the order dated
23.03.2006 was passed. Thereafter, the appellants resiled from
their undertaking and refused to produce the documents. Thus,
the learned Trial Court has rightly passed the impugned order.
10.2 Learned counsel further placed reliance upon the judgment
of the Andhra Pradesh High Court in Kuchimanchi Subba Rao &
Ors. v. Kanchana Prabhakara Rao, MANU/AP/0106/2006,
and judgment of Bombay High Court at Nagpur Bench, in the case
of Manager, Ramkrishna Ramnath Bidi Factory v. First Civil
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Judge, First Class, Nagpur & Ors., MANU/MH/0061/1959,
while asserting that, in case there is a wilful default in not
answering interrogatories or producing the documents, the
learned Trial Court should proceed to strike out the defence under
Order XI Rule 21(1) CPC.
11. Heard, learned counsel for both the parties and perused the
entire record.
QUESTIONS FOR CONSIDERATION:-
There are two questions for consideration before this Court;
(1) Under what circumstances the power under Order XI
Rule 21(1) CPC can be exercised by the learned Trial Court?
(2) Whether, in the facts of the present case, the power
under Order XI Rule 21(1) CPC could have been invoked by
the learned Trial Court?
Analysis:-
Re- Question No.1-:
12. As far as Question No.1 is concerned, consideration of a few
provisions of the CPC would be relevant prior to answering the
same. Order XI CPC deals with discovery and inspection. Rule 1
provides for discovery by interrogatories. Rule 2 specifies the
particulars of interrogatories to be submitted, whereas Rule 3
deals with costs of interrogatories and Rule 4 deals with the form
of interrogatories. Rule 5 deals with the procedure when the party
is a corporation. Rule 6 deals with objections to interrogatories by
answer, whereas Rule 7 deals with setting aside and striking out
interrogatories on the ground of being unreasonable, vexatious or
on other grounds. Rules 8 and 9 deal with affidavits and answers
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in the form of affidavits, whereas Rule 10 deals with no exception
to affidavits in certain cases. Rule 11 deals with an order to
answer or answer further interrogatories and provides as under:-
“11. Order to answer or answer further.–
Where any person interrogated omits to answer, or
answer insufficiently, the party interrogating may apply to
the Court for an order requiring him to answer, or to
answer further, as the case may be. And an order may be
made requiring him to answer or answer further, either by
affidavit or by viva voce examination, as the Court may
direct.”
Rule 12 deals with an application for discovery of documents and
provides as under:-
“12. Application for discovery of documents.–
Any party may, without filing any affidavit, apply to the
Court for an order directing any other party to any suit to
make discovery on oaths, of the documents which are or
have been in his possession or power, relating to any
matter in question therein. On the hearing of such
application the Court may either refuse or adjourn the
same, if satisfied that such discovery is not necessary, or
not necessary at that stage of the suit, or make such
order, either generally or limited to certain classes of
documents, as may, in its discretion be thought fit:
Provided that discovery shall not be ordered when and so
far as the Court shall be of opinion that it is not
necessary either for disposing fairly of the suit or for
saving costs.”
Rule 14, on the other hand, deals with production of documents
and provides 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.”
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Rule 15 deals with inspection of documents and provides as
under:-
“15. Inspection of documents referred to in
pleadings or affidavits.–
Every party to a suit shall be entitled [at or before the
settlement of issues] to give notice to any other party,
in whose pleadings or affidavits reference is made to any
document, [or who has entered any document in any list
annexed to his pleadings,] to produce such document
for the inspection of the party giving such notice, or of
his pleader, and to permit him or them to take copies
thereof; and any party not complying with such notice
shall not afterwards be at liberty to put any such
document in evidence on his behalf in such suit unless
he shall satisfy the Court that such document relates
only to his own title, he being a defendant to the suit, or
that he had some other cause or excuse which the Court
shall deem sufficient for not complying with such notice,
in which case the Court may allow the same to be put in
evidence on such terms as to costs and otherwise as the
Court shall think fit.”
Rules 16, 17 and 18, on the other hand, deal with the aspects
relating to notice to produce, time for inspection and orders for
inspection. Rule 19 deals with verification of copies, and Rule 20
deals with premature discovery.
Most importantly, Rule 21 deals with non-compliance with an
order for discovery and provides 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 for 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(Uploaded on 26/02/2026 at 03:26:31 PM)
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[2026:RJ-JD:8652] (17 of 26) [CMA-1393/2008]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.]”
13. A perusal of the framework of the provisions under Order XI
Rule 21(1) CPC would reveal that it deals with three different
situations. The first relates to an order to answer or answer
further the interrogatories Order XI Rule 11, wherein, if a person
interrogated fails to answer or answers insufficiently, the
procedure to be followed is provided. The second relates to an
application for discovery of documents Order XI Rule 12, which
can be filed by any party without an affidavit. Third deals with
inspection of documents Order XI Rule 15, wherein a provision has
been made enabling any party to the suit to give notice to the
other party for production of documents for inspection, as referred
to in the pleadings or affidavits. Rule 14, on the other hand,
provides for production of documents, whereby a party can apply
on oath, specifying that the documents in question are in the
power or possession of the other party and are relevant for
adjudication of the matter, whereafter the Court may direct the
other party to produce such documents.
13.1 It is thus clear that answering of interrogatories, application
for discovery of documents, application for production of
documents and inspection of documents are distinct and different.
The legislature never uses two separate words for the same thing
in a statute. In the present case, “production of documents” and
“discovery of documents” have been used separately, signifying
two different concepts, and different procedures have been
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prescribed, as is evident from a perusal of Rules 12 and 14 under
Order XI CPC. This, coupled with the fact that Rule 21 confines its
applicability within the four corners of the provisions specified
therein, i.e., failure of a party to comply with any order to: (i)
answer interrogatories, (ii) make discovery of documents, and (iii)
permit inspection of documents. Only in such eventualities, the
question of striking out the defence, in the case of defendants, or
dismissal of the plaint, in the case of non-compliance by the
appellants-plaintiffs, would arise.
13.2 As far as answering of interrogatories is concerned, the same
is provided under Order XI Rule 11, for discovery of documents
specific provisions are provided under Order XI Rule 12; and for
inspection of documents, a specific provision is provided under
Order XI Rule 15. The Legislature, in its wisdom, did not include
Order XI Rule 14 within the ambit of Rule 21, inasmuch as there is
no reference to non-compliance with an order for production of
documents. Thus, the Legislature consciously kept non-compliance
of an order under Rule 14 of Order XI outside the ambit of Order
XI Rule 21(1) CPC. Therefore, for bringing a case within its sweep
and/or passing an order under Order XI Rule 21(1) CPC, the
applicants/plaintiffs have first to show that there was an order
under Rule 11, Rule 12, or Rule 15 of Order XI and that there was
non-compliance thereof. In other words, proceeding cannot be
initiated under Order XI Rule 21(1) in case of non-compliance of
order passed under Order XI Rule 14 CPC.
14. A perusal of the provisions, as well as the judgments passed
by the Hon’ble Apex Court in the case of Babbar Sewing Machine
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Co. (supra) and by a Coordinate Bench of this Court in the case of
Faiz Mohammed v. Bulaki Khan (supra), will reveal that, even if
there is non-compliance with the provisions under Rules 11, 12
and 15, an order under Order XI Rule 21(1) cannot be passed in a
routine manner. The Court concerned, prior to passing such an
order, has to record satisfaction, firstly, that a specific order to
answer the interrogatories or for discovery or inspection of
documents has been passed, and secondly, that the order has not
been complied with and the plaintiff or defendants concerned have
wilfully defaulted in complying with the order. Further, where the
obstinacy or contumacy of the plaintiff/defendant in disregarding
the order of the Court is established, then such an order can be
passed and not otherwise. Question No.1 is thus answered
accordingly.
Re- Question No.2:-
15. As far as Question No.2 is concerned, in the present case,
interestingly, the first application was not filed under Order XI Rule
12, which came to be allowed on 23.03.2006, wherein there is a
specific reference to Order XI Rule 12, but the order passed was
under Order XI Rule 14 by the learned Trial Court. The non-
compliance alleged is also of the order dated 23.03.2006, that too
is an under Order XI Rule 14. Thus, until and unless the
respondents were in a position to show that there was an order
passed under Order XI Rule 12 CPC and there was non-compliance
thereof, the provisions of Order XI Rule 21(1) CPC could not have
been invoked by the respondents/defendants. Admittedly, the
language of the order dated 23.03.2006 clearly specified that the
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same was passed under Order XI Rule 14 CPC; therefore, the
provisions of Order XI Rule 21(1) CPC could not have been applied
and no application in this regard was maintainable. Though no
objection in this regard was taken by the appellants/plaintiffs,
however, when a Court exercises its jurisdiction, it is duty-bound
to first verify and check whether the Court has the jurisdiction to
pass an order on such an application or not. In the present case,
the learned trial Court has failed to exercise the above-mentioned
caution, and in view of the fact that there was no order passed
under Order XI Rule 12 CPC and the order dated 23.03.2006 was
essentially passed under Order XI Rule 14 CPC, the provisions of
Order XI Rule 21(1) CPC could not have been invoked.
16. A perusal of the language of Order XI Rule 12 will itself
reveal that the purpose of the same is to obtain a clear answer
from the party concerned with regard to the documents which he
admits to be in his power or possession and which have a bearing
on the matter in dispute. Order XI Rule 14, on the other hand,
pertains to a direction to produce the documents which are in the
possession of a party to the suit. Thus, both the Rules operate in
different fields. The same can be further fortified by the form of
order as provided under Appendix C of CPC, more particularly
Form Nos.4, 5 and 6, which provide as under:-
“No. 4
ORDER FOR AFFIDAVIT AS TO DOCUMENTS
(O. XI, r. 12.)
(Title as in No. 1, supra)
Upon hearing………………;It is ordered that the………..do
within…………..form the date of this order, answer on affidavit
stating which documents are or have been in his possession
or power relating to the matter in question in this suit, and
that the costs of this application be……………………
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[2026:RJ-JD:8652] (21 of 26) [CMA-1393/2008]No. 5
AFFIDAVIT AS TO DOCUMENTS
(O. XI, r. 13.)
(Title as in No. 1, supra)
I, the above-named defendant C. D., make oath and say as
follows:–
1. I have in my possession or power the documents relating
to the matters in question in this suit set forth in the first and
second parts of the First Schedule hereto.
2. I object to produce the said documents set forth in the
second part of the first schedule hereto [state grounds of
objection].
3. I have had but have not now, in my possession or power
the documents relating to the matters in question in this suit
set forth in the Second Schedule hereto.
4. The last-mentioned documents were last in my possession
or power on. [State when and what has become of them and
in whose possession they now are].
5. According to the best of my knowledge, information and
belief I have not now, and never had, in my possession,
custody or power, or in the possession, custody or power of
my pleader or agent, or in the possession custody or power of
any other person on my behalf, any account, book of account,
voucher, receipt, letter memorandum, paper or writing, or
any copy of or extract from any such document, or any other
documents whatsoever, relating to the matters in question in
this suit or any of them, or wherein any entry has been made
relative to such matters or any of them, other than and
except the documents set forth in the said first and Second
Schedules hereto.
No. 6
ORDER TO PRODUCE DOCUMENTS FOR INSPECTION
(O. XI, r. 14.)
(Title as in No. 1, supra)
Upon hearing………………and upon reading the affidavit
of………………..filed the……………… day
of…………19……/20……………;It is ordered that
the………………..do, at all reasonable times, on reasonable
notice, produce at…………………., situate at …………………., the
following documents, namely,………………, and that the……………
be at liberty to inspect and produce the documents so
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produced, and to make notices of their contents. In the
meantime, it is ordered that all further proceedings be stayed
and that the costs of this application be………………………”
16.1 A perusal of Form No.4, which corresponds to Order XI Rule
12, will reveal that the direction is only with regard to the filing of
an affidavit stating the documents which are in the power or
possession of the party concerned. Form No.5 further clarifies the
affidavit to be filed by the party concerned as per Order XI
Rule 13, wherein he specifies the documents which are in his
possession. On the contrary, Form No.6 will reveal that the pattern
of the order under Order XI Rule 14 is with regard to directions to
produce the documents. This, coupled with the prayer made in the
application dated 24.08.2005 as well as the order dated
23.03.2006, will reveal that though the same has been quoted to
be an order under Order XI Rule 12, but since it directed
production of the documents, it was in fact an order under Order
XI Rule 14 CPC. Needless to emphasize that the law in this regard
is no longer res integra, that the wrong quoting of the provisions
would make no difference whatsoever; rather, the actual language
of the order is to be seen for determining under which provision
the same has been passed. Since the original order itself was
passed while exercising powers under Order XI Rule 14 CPC, the
provisions of Order XI Rule 21(1) would not be applicable to the
case in hand.
17. Furthermore, a perusal of the application filed by the
respondents/defendants dated 24.08.2005 will reveal that they
had requested production of the original account books of the
appellants/plaintiffs, from Om Prakash, for the period from
23.03.1999 to 05.05.2001. The appellants/plaintiffs filed a reply
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stating therein specifically that the account books belong to Shri
Ranglal and that he is not in possession of the same. He shall,
however, produce the documents in his possession. Based upon
this, a consent order dated 23.03.2006 was passed directing the
appellants/plaintiffs to produce the original account books, as
stated in the application. The appellants/plaintiffs admittedly have
produced their account books and had also shown them to the
counsel for the respondents/defendants, which in fact has not
been disputed by the respondents/defendants themselves.
17.1 However, the respondents stated that the original account
books of the appellants, photocopies of which were produced by
the respondents themselves, were not produced, and therefore, a
subsequent application was filed. The subsequent application
came to be dismissed by the learned trial Court vide a reasoned
order dated 30.11.2007, while emphasizing the fact that in case of
non-production, the respondents have a remedy of leading
secondary evidence with the aid of Section 65 of the Evidence Act,
1872. It was further observed that there was no wilful default on
the part of the appellants, as the appellants had produced the
relevant documents available to them, and beyond that, the
documents which were in the possession of their father could not
be produced.
17.2 Aggrieved by the same, the respondents filed a writ petition,
which also came to be dismissed by this Court vide judgment
dated 17.12.2007, while specifically observing that the
respondents, at an appropriate stage, could make a request to the
Court below to draw an adverse inference for non-production of
the documents and could also seek permission to produce
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secondary evidence, while emphasizing that the same would be an
appropriate relief for the appellants (therein for the reason that
photocopies of the documents were available with them). The
Hon’ble Court had dealt with the provisions under Order XI Rule
21(1) CPC; however, no finding with regard to its applicability was
recorded.
18. The argument raised by the learned counsel for the
appellants/plaintiffs thus has substance, inasmuch as there was no
direction of this Hon’ble Court to file an application under Order XI
Rule 21(1) CPC, nor was any observation with regard to the
maintainability of such an application made. Rather, on the
contrary, this Court had directed the respondents to take
appropriate remedy, either by filing an application for drawing an
adverse inference or for seeking permission to place on record
secondary evidence. The Court below, rather than considering that
aspect of the matter, proceeded to pass the impugned order while
treating the judgment passed by this Court as if it had directed
the filing of an application under Order XI Rule 21(1) CPC and
allowing the same.
19. The order impugned is totally silent with regard to the
consideration as to whether there was any wilful attempt to
disregard the order of the Court or whether there was obstinacy or
contumacy on the part of the appellants/plaintiffs in non-
compliance with the order. Rather, the Court below has not even
considered whether the documents prayed for were in the
possession of the appellants/plaintiffs and whether there was any
direction to produce the documents which belonged to his father
or whether any such directions could have been issued by the
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Court. The judgments passed by the Hon’ble Apex Court in the
case of Babbar Sewing Machine Co. (supra) and by this Court in
the case of Faiz Mohammed v. Bulaki Khan (supra) clearly lay
down the law that until and unless there is wilful default and
obstinacy or contumacy is shown, the powers under Order XI Rule
21(1) CPC cannot be exercised by the Court below.
20. In the present case, even assuming that the order was for
discovery of documents under Order XI Rule 12 and not for
production of documents under Order XI Rule 14, even then such
powers could not have been exercised unless the Court had come
to its specific conclusion that there was wilful default on the part
of the appellants/plaintiffs. More particularly, when the appellants/
plaintiffs, upon inspection, had clearly stated that the photocopies
of the documents were handwritten and were copied by the
appellant-Om Prakash from the account books maintained by his
father at another village. It is not even disputed that in
compliance with the order dated 23.03.2006, the
appellants/plaintiffs had produced the original account books
belonging to them. Thus, no case of wilful default was made out
so as to dismiss the suit filed by the appellants/plaintiffs while
exercising powers under Order XI Rule 21(1) CPC.
Conclusion:
21. As an upshot of the above, it is held that the provisions
under Order XI Rule 21(1) CPC were not applicable to the case in
hand, as there was no direction for discovery of documents and
the direction given was for production of documents, which is clear
from the order dated 23.03.2006 itself. Furthermore, the
respondents/defendants have failed to prove wilful default on the
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part of the appellants/plaintiffs. Thus, while allowing the present
Civil Miscellaneous Appeal, the order impugned dated 03.09.2008
passed by the learned Additional District Judge, Bhadra, in Civil
Suit No.08/2003 (Om Prakash & Ors. v. Balwant & Ors.) is
quashed and set aside. The learned trial Court is directed to
proceed with the trial from the stage at which the order dated
03.09.2008 was passed. Since the suit in question was filed in the
year 2003, the learned trial Court is directed to expedite the trial.
The respondents shall, however, be at liberty to file appropriate
application before the learned Trial Court for drawing of an
adverse inference against the appellants or for production of
secondary evidence under Section 65 of the Evidence Act, 1872, in
view of the alleged non-compliance of the order dated
23.03.2006, if so available to them as per law.
22. All pending applications, if any, stand disposed of.
23. The record of the case be sent back forthwith.
(SANDEEP SHAH),J
devrajP/-
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