@JUDGMENTTAG-ORDER
S. Chatterji, J.@mdashThe present Misc. Appeal is at the instance of the plaintiff-appellant challenging the order dated 5-2-1990 made by the learned Subordinate Judge, Rourkela dismissing its suit under Order 11, Rule 11.CPC. It appears from the materials on record that the plaintiff filed the money suit asserting inter alia that it manufactures and despatches for sale refractory items and other itmes in its factory at Lathikata to the buyer-industries against their orders. The defendant placed orders with it from time to time for supply of refractory products and chromite dust/powder from the plaintiff''s refractory plant at Lathikata during the years 1980 to 1984. The plaintiff supplied the said materials as per the orders of the defendant during the said period to the tune of Rs. 16,43,791.27 as detailed in the schedule to the plaint. It was alleged that the defendant had paid Rs. 9,65,599.00 as advance from time to time for the said supply and on subsequent demand had paid Rs. 5000/- only on 10-12-1986 leaving an outstanding of Rs. 6,73,192.27. The plaintiff therefore prayed-for a dacree for the aforesaid amount of Rs. 6,73,192.27 together with damages at the rate of 18% per annum from the date of the suit till realisation.
2. The defendant appeared and filed a petition on 3-10-1988 for time to file its written statement and thereafter took a number of adjournments. Then on 7-1-1989 the defendant filed a petition under Order 11, Rule 12 of Civil Procedure Code, inter alia for calling upon the plaintiff to produce certain documents as fully elaborated in the petition itself. It was asserted by the defendant in the said petition that It the plaintiff would not produce the documents after receiving the notice, the plaintiff should be debarred from taking advantage of producing the said documents lateren and if the plaintiff would produce the said documents after filing of the written statement by the defendant, the same should not be accepted. The plaintiff filed objection to such petition pleading inter alia that the documents discovery of which was wanted under Order 11. Rule 12. CPC had not been relied upon by the plaintiff in the suit and the same were not necessary at the stage before filing of the written statement by the defendant. The learned trial Court, however, by order dated 3-3-1989 directed the plaintiff to file an affidavit under Order 11, Rule 13, CPC and the plaintiff accordingly filed the same. The trial Court by its order 20-4-1989 directed the plaintiff to file the documents which were in its possession. It is placed on record that the plaintiff filed some documents and the learned trial Court directed it to produce the other documents by order dated 24-4-1989. The learned trial Court granted time to the plaintiff to file the said other documents as last chance by Order dated 26-6-1989. The learned trial Court by order dated 27-7-1989 allowed a last chance to the defendant to file its written, statement on 16-8-1989. The defendant thereafter filed a petition under Order 11, Rule 21, CPC and the learned trial Court by its order dated 26-10-1989 gave another chance to the plaintiff to produce document Nos. 2, 3, 4 and 6 and subsequently the learned trial Court by its order dated 5-2-1990 dismissed to suit under Order 11, Rule 21. CPC non-production of all the documents as directed.
3. The plaintiff therefore filed Misc. Case No. 29 of 1990 under Order 9, Rule 9 of CPC on 6-3-1990 for restoration of the suit which was ultimately dismissed by the trial Court on 12-11-1993 against which Misc. Appeal No. 148 of 1994 has been filed in this Court. The present Misc. Appeal 149 of 1994 agasinst the order of dismissal of the suit under Order 11, Rule 21, CPC and M. A. 148 of 1994 against the order of dismissal of Misc. Case No. 29 of 1990 for restoration of the suit are. being heard jointly and analogously and are disposed of by this common order.
4. It is placed on record that in spite of notice being served on the respondent, none appears to oppose the Misc. Appeals. The appeals were heard yesterday and were adjourned to this day to enable the other side to appear, but unfortunately none appears even today.
5. Having heard Mr. S. N. Sinha for the appellant at length, it appears that the scope of Order 11, Rule, 12 of CPC and the scope of Order 11, Rule 21 of CPC are very clear. Order 11, Rule 12 states inter alia that 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 oath 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 the 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.
6. In this case, the learned trial Court directed the plaintiff to swear an affidavit under Order 11. Rule 13 which states that the affidavit to be made by a party against whom such order as is mentioned in the last preceding rule has been made, shall specify which (if any) of the documents therein mentioned he objects to produce, and it shall be in form No. 5 in Appendix-C, with such variation as circumstances may require.
7. The defendant, in fact, in the instant case filed a petition under Order 11. Rule 21, CPC for non-compliance with the order for discovery of documents. It appears that 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 after giving them a reasonable opportunity of being heard. Order 11 Rule 21(2) indicates that where an order is made under Sub-rule (1) dismissiny any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action.
8. In the present case, it appears that the learned trial Court while dismissing Misc. Case No. 29 of 1990 found that once the suit was dismissed, there was no sufficient reason to restore the same under Order 9, Rule 9. CPC.
9. Mr. Sinha, learned advocate appearing, in support of the two appeals, has contended by referring to the application made by the defendant in the trial Court end the notice purported to be issued under Order 11, Rule 12. CPC which states :
" Take notice that you are hereby required to produce and show to the Court at the 1st hearing of the suit, the following documents, which are in your custody and possession relating to the matters in question in the suit. Description of documents;
XX XX XX"
10. By referring to the said application, it is the argument of Mr. Sinha that by mere nomenclature of the petition and by quoting the povisions of Order 11, Rule 12, the order of the trial Court should not be construed as made under Order 11. Rule 12. In fact the order to direct the plaintiff to produce the documents must be taken to have been made under Order 11, Rule 14 which provides inter alia, that 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 of such suit, as the Court shall think right; and the Court may ideal with such documents when produced, in such manner as shall appear just. There is a sharp distinction between Order 11, Rule 12 and Order 11, Rule 14. Essentially an application for discovery of documents and for interrogatories comes within the scope of Rule 12 whereas production of documents comes under Rule 14. The Applicability of Rule 21 arises when there is non-compllance with Rule 12 and not Rule 14. In support of such contention, Mr. Sinha has referred to a decision reported in II (1994) Banking Cases 18 (Gur Prasad Shyam Babu and Ors. v. State Bank of India and Anr.) where the learned Single Judge of Allahabad High Court has drawn distinction and found Inter alia that Order 11, Rule 21 --Dismissing suit for non-filing of documents required by Courts-Application of plaintiff to recall order of dismissal allowed-- Challenged in revision and held that order was passed for production of documents and hence it did not fail under Order 11, Rule 21. CPC but it came under Order 11. Rule 14, CPC which does not provide for dismissal of suit on failure to file documents. As such application of plaintiff under Order IX. Rule 13, Section 151, CPC was maintainable and order of trial Court to restore suit was valid and legal.
11. Applying the ratio of the said decision to the facts of the present case, it appears that the learned trial Court proceeded on the basis of the provisions of Order 11, Rule 12. CPC and as a consequence of penal measure under Order 11, Rule 21 dismissed the suit. The application for recalling the order and restoration of the suit under Order 9, Rule 9. CPC was considered, the reasons assigned were not accepted to be sufficient and the same was rejected. The other order which is also impugned relates to dismissal of the suit under Order 11, Rule 21, CPC. Recording the submissions as made above on appreciation of the facts of the case and in view of the ratio of the decision in the case of Gur Prasad Shyam Babu (supra), this Court finds sufficient force in the submissions of Mr. Sinha and hold that dismissal of the suit by the trial Court under Order 11, Rule 21, CPC was not proper and there was erroneous exercise of jurisdiction causing material irregularity. There is sufficient merit in the, appeals and the order dismissing the suit is liable to be set aside. As the order dismissing the suit is found to be bad it Js redundant to ask for restoration of the suit and the petition there for should be taken as infructuous and the appeal arising out of dismissal of the said petition was only academic and lose s ail force.
12. For the aforesaid reasons, this Court holds that the suit should be restored to file. It is, however made clear that the plaintiff must file all the documents as directed. If original documents are not available, xerox copies thereof be filed but the original documents must be filed if found necessary by the trial Court at the time of hearing of the suit. If the documents are not in custody of the plaintiff, steps should be taken to call for the same from the appropriate authority in whose custody those are kept. Both Misc. Appeal Nos. 148 and 149 of 1994 are disposed of No costs.
