1993 PLP 425 (MLD)

0 petitioner for inspection of the documents. This application was contested by P lea that although the original receipt was in her the respondents orr the p possession and she was willing to produce the same but the remaining P documents mentioned in the application were not with her and therefore, she was not in a position to produce those documents. No decision was taken by the trial Court on this application.

3. It appears that on 18th July, 1990 two more applications were filed by the petitioner; one under Order 11, rules 1 and 2 and the second under Order 13, rule 8 read with Order 11, rule 18 of the C.P.C. The trial Court directed the respondent to submit her replies to these two applications on 10th of September 1990. However on that date yet another application was riled by the petitioner this time under Order 11, rule 21, C.P.C. praying that as the respondent has failed to produce the documents in original despite the order passed by the Court her suit be dismissed. This application was contested by the respondent but was allowed by the trial Court on 13th November, 1990 and the suit of the petitioner was dismissed on account of non-production of the documents.

4. The respondent challenged the dismissal of her suit by filing an appeal which was accepted by the Additional District Judge on 23rd of September, 1991 who was of the view that the failure to comply with an order of production of documents could not entail dismissal of the suit and at the most an adverse presumption could be drawn against her on account of her refusal/failure to produce the documents.

5. The learned counsel for the petitioner in support of this petition has relied upon rule 21, Order XI to contend that on account of failure of the respondent to produce documents despite an order having Been passed, the trial Court was fully justified in dismissing the suit. Reliance has been placed upon the authority of the Supreme Court in M/s. Awan Industries Limited v. Province of West Pakistan and others 1961 Law Notes (SC) 93.

6. On behalf of the respondent, his learned counsel has reiterated the same arguments that prevailed with the Additional District Judge. He sought to draw strength from the cases of M/s. United Bank Limited v. Yousuf Haji Noor Muhammad Dhadhi 1988 SCMR 82; Manohar Das v. Darbara Singh and another AIR 1933 Lah. 248.

7. The question which falls for determination in this petition is as to whether failure to produce documents despite an order passed by the Court can be visited with penalty of dismissal of the suit or striking off the defence as the case may be. The answer to this question turns upon the true interpretation and import, of rule 21 of Order 11 of the C.P.C. which reads as under: - "Non-compliance wifh order for discover

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 hot 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 mad, accordingly " 8: At the very outset it is to be noticed that the provision is highly penal in nature and must, therefore, be strictly construed. Consequences contemplated by this rule are so drastic that it is only when a case clearly falls within the four corners of this rule that it can be applied. It was so observed by the Supreme Court of Pakistan in M/s. United Bank Limited v. Yousuf Hap Noor Muhammad Dhadhi 1988 SCMR 82.

9. It is clear from a reading of the rule that there are only three grounds upon which a Court is justified under this rule in dismissing the suit of the; plaintiff or striking off the defence of a defendant. These grounds are; refusal to answer interrogatories under rule 11; refusal to make discovery of documents under rule 12; and. refusal to permit inspection of documents under rule

18. In absence therefore, of an order under rule 11, 12 or 18 and disobedience thereof the party against whom the order is made, the Court S cannot act under this rule. An order for' production of documents under rule 14 is not one of the orders mentioned in this rule 21.

10. In somewhat similar situation, the Supreme Court of Pakistan in M/s. United Bank Limited v. Yousuf Haji Noor Muhammad Dhadhi 1988 SCMR 82 was pleased to rule that: - "Another aspect of the case is that the provisions of Order XI, rule 21 can be. In voked and penalty imposed on a party only if such party has failed to file an affidavit in spite of an order passed by the Court to that effect. Order XI, rule 21, C.P.C. contemplates the passing of an order on application for discovery of documents. Therefore, the penal provisions are not attracted in a case where no order by the Court to discover the documents has been passed." In Manohar Das v. Darbara Singh and another (AIR 1933 Lahore 248) it was observed that :-- "The only effect of his default could be that he might lose the right to produce those documents at a later stage in support of his case. The circumstances which enable a Court to strike off a plaint or a defence under Order 11, rule 21 had not wine into existence in this case. No interrogatories had been served upon the defendant and no order for discovery or inspection of documents, such as is contemplated by Order 11, had been passed." To the same effect are the judgments of different High Courts in the sub continent (See Sardar Charan Seal and another v. Jagabandhu Mahajan and others PLD 1953 Dacca 42; The Sindh Tanneries Ltd. v. Messrs Haji Mohammedin & Co. PLD 1957 Dacca 161; Lyallpur Sugar Mills & Co. and another v. Ram Chandra Guru Sahai Cotton Mills & Co. through Shree Ram AIR 1922 All. 235 and S.P:S.R. Subramania Ayyar.v. C. Bomer Cooty Haji AIR 1933 Mad. 870).

12. As in the present case the condition precedent for the exercise of power under rule 21 was lacking inasmuch as there was no order under C rules 11, 12 or 18, the trial Court was clearly in error in dismissing the suit. '

13. The case cited by the learned counsel namely M/s. Awan Industries Limited v. Province of West Pakistan and others 1961 Law Notes (SC) 93 is distinguishable as the question in that case was as to whether the failure of a person to comply with an order to produce a document by Civil Court under Order 1.1, rule 14 would amount to contempt of the Court. Be that as it may, in' view of the later authority of the Supreme Court which is applicable with full force, the contention of the learned counsel for the petitioner cannot be p accepted. As a result of what has been stated above this petition is dismissed leaving the parties to bear their own costs. H.B.T./S-130/L Petition dismissed.