2017(3) ALL MR 282
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

A. S. CHANDURKAR, J.

United Church of Northern India Trust Association Vs. Pradip Thomas Parmar & Ors.

Writ Petition No.4834 of 2013

19th July, 2016.

Petitioner Counsel: Shri P.K. SATHIANATHAN, Shri U. PHASATE
Respondent Counsel: Shri A.C. DHARMADHIKARI

(A) Civil P.C. (1908), O.11 Rr.21, 14 - Order for production of documents - Dismissal of suit for non-compliance - Exercise of power under O.11 R.21 - Whether directory or mandatory - Held, an order under said provision is passed after considering conduct of a party and only as a last resort - Therefore, exercise of such power is directory in nature and not mandatory to be exercised in each and every case. AIR 1978 SC 1436, 2010(6) ALL MR 410 (S.C.), 2015 ALL SCR 977, 2014 ALL SCR 678 Rel. on. (Para 9)

(B) Civil P.C. (1908), O.11 Rr.21, 14 - Order for production of documents - Dismissal of suit for non-compliance - Exercise of power under O.11 R.21 - Conduct of plaintiff would have to be examined to determine whether dismissal of its suit under O.11 R.21 was justified or not. (Para 10)

(C) Civil P.C. (1908), O.11 Rr.21, 14 - Dismissal of suit - Prayer for, on ground of non-compliance with order for production of documents - As per said order plaintiff was required to produce 8 documents - Out of which 3 documents filed on record and details relating to document at Sr. no.3 also available - As regards possession of other documents plaintiff undertook to communicate with its Head Office in that regard - Though plaintiff could have placed on record result of the communication with Head Office, failure to do so cannot be considered as a willful attempt to disregard order of court - Thus, plaintiff's conduct is neither in willful breach nor contu-macious - Therefore, dismissal of suit would result in travesty of justice - Prayer not allowed. (Paras 10, 11, 12, 13, 14)

(D) Constitution of India, Art.227 - Civil P.C. (1908), O.11 R.21, O.43 R.1(f) - Supervisory jurisdiction of court - Exercise of - Order of dismissal of suit under O.11 R.21, is under challenge - Suit dismissed on account of plaintiff not producing documents in its possession as per order of court - Plaintiff partly complied with the order for production of documents - Conduct of plaintiff regarding remaining documents not showing that plaintiff had any intention to disregard order of court - Therefore, dismissal of suit without trial would result in grave injustice - Same would remain uncorrected, if no interference made u/Art.227 - Hence, interference made accordingly. (Para 14)

Cases Cited:
M.L. Sethi Vs. R. P. Kapur, AIR 1972 SC 2372 [Para 7]
Municipal Commissioner for Greater Bombay and another Vs. M/s Sangam Cinema, 1992 (2) Mh. L. J. 1403 [Para 7]
Board of Trustees of the Port of Bombay Vs. UCO Bank, Singapore & Ors., 2009(3) ALL MR 602=2009 (5) BCR 478 [Para 7]
Feroze Homi Duggan Vs. Benzer Interiors pvt. Ltd. and others, 2006(2) Mh.L.J. 289 [Para 7]
M/s Babbar Sewing Machine Co. Vs. Tirlok Nath Mahajan, AIR 1978 SC 1436 [Para 8,9]
Jai Singh and others Vs. Municipal Corporation of Delhi, 2010(6) ALL MR 410 (S.C.)=(2010) 9 SCC 385 [Para 8,14]
Radhey Shyam and Anr. Vs. Chhabi Nath and Ors., 2015 ALL SCR 977=AIR 2015 SC 3269 [Para 8,14]
Ram Kishan Vs. Tarun Bajaj, 2014 ALL SCR 678=(2014) 16 SCC 204 [Para 9]
Estralla Rubber Vs. Dass Estate (P) Ltd., 2001(4) ALL MR 484 (S.C.)=(2001) 8 SCC 97 [Para 14]


JUDGMENT

JUDGMENT :- Rule. Heard finally with the consent of the learned Counsel for the parties.

2. The petitioner - original plaintiff is aggrieved by the order dated 10-1-2013 passed in Miscellaneous Civil Appeal No.54/2012 whereby the said appeal preferred by the respondent no.1 - defendant no.1 under provisions of order XLIII Rule 1(f) of the Code of Civil Procedure, 1908 ( for short, the Code) has been allowed and the suit filed by the petitioner has been dismissed under provisions of Order XI Rule 21 of the Code.

3. The facts relevant for adjudication of the challenge raised in the writ petition are that the petitioner is an Association of Trusts of Northern India constituted under the Companies Act, 1913. It is also registered under the provisions of the Maharashtra Public Trusts Act, 1950. The suit property consisting of a structure on the land owned by the petitioner was in occupation of the respondents. According to the petitioner, the said respondents had no right to continue in occupation of the suit property and hence, it filed Special Civil Suit No.103/2004 for ejectment of the respondents and possession thereof. The respondents filed their written statement opposing the prayers made in the suit. According to the defendants, the plaintiff had no locus to file the said suit and seek their eviction.

4. The power of attorney holder filed his affidavit in lieu of evidence on behalf of the petitioner. He was then crossexamined by the Counsel for the defendants. During the course of crossexamination, he was questioned about certain documents which according to the defendants had bearing on the adjudication of the suit. Hence at that stage the defendants moved an application on 10-11-2010 under provisions of Order XI Rule 21 read with Rule 14 of the Code (Exhibit-89). As per this application, the defendants called upon the plaintiff to produce eight documents which according to the defendants were necessary for further crossexamination of the witness. The plaintiff filed its reply to the aforesaid application on 11-1-2011. According to the plaintiff, the documents at Sr. Nos.1 and 2 alone were relevant documents while the other documents were not relevant for deciding the suit. On 2-7-2012, the power of attorney holder filed his affidavit in Form No.5 under provisions of Order XI Rule 13 of the Code. In the said affidavit, it was stated that a copy of the memorandum of association was being filed on record. In so far as the other documents were concerned, it was stated that the Head Office of the Company had been asked to verify about the possession of said documents and it was stated that the power of attorney holder would communicate with the Head Office in that regard. On 21-6-2012, the trial Court passed an order observing that production of the documents as mentioned by the defendants would be helpful in deciding the suit and hence, directed the plaintiff to file the documents as mentioned at Sr. Nos.1 to 8 within period of fifteen days from the date of the order.

5. On 30-7-2012, the defendant no.1 filed an application seeking dismissal of the suit under provisions of Order XI Rule 21 of the Code (Exhibit-99). In the said application, it was stated that though the trial Court had passed an order on 21-6-2012 directing production of the said documents, a vague affidavit along with some stray documents were filed on record. As the plaintiff committed breach of the aforesaid order, it was prayed that the suit be dismissed under provisions of Oder XI Rule 21 of the Code. The plaintiff filed its reply (Exhibit-100) and stated that all the documents which were in its custody had been filed and as the remaining documents were not available with the plaintiff, there was no question of withholding the same from the Court. It was stated that the order dated 21-6-2012 had been complied with and hence, the suit could not be dismissed. The trial Court by order dated 24-8-2012 held that in compliance with the order dated 21-6-2012, the plaintiff had filed those documents which were in its custody. It observed that there was no specific statement made with regard to custody of the other documents and hence, the suit was not liable to be dismissed under provisions of Order XI Rule 21 of the Code. The application was accordingly rejected.

6. The defendant no.1 being aggrieved by the aforesaid order filed an appeal under provisions of Order XLIII Rule 1(f) of the Code. In the memorandum of appeal, it was stated that except documents at Sr. Nos.1, 2 & 6, the other documents had not been filed on record. It was stated that considering the breach committed by the plaintiff the suit ought to have been dismissed. The appellate Court after hearing the parties observed that the power of attorney holder of the plaintiff had specifically admitted during his crossexamination with regard to documents that were in the custody, control and possession of the Company. The same was not denied in the reply. While producing one of the documents, the plaintiff had not denied about the possession of the other documents. After relying upon the deposition of the power of attorney holder examined on behalf of the plaintiff, the appellate Court concluded that the plaintiff was in possession of all the documents as sought. After holding that there was no affidavit filed denying the possession and custody of these documents, the appellate Court proceeded to hold that by disregarding the order passed below Exhibit-89, the suit was liable to be dismissed. Hence, by the order dated 10-1-2013, the appellate Court dismissed the suit under provisions of Order XI Rule 21 of the Code and allowed the appeal. Being aggrieved, the plaintiff has challenged the aforesaid order.

7. Shri P. K. Sathianathan, the learned Counsel for the petitioner submitted that the appellate Court was not justified in dismissing the suit of the plaintiff under provisions of Order XI Rule 21 of the Code. According to him, in response to the application moved by the defendants under provisions of Order XI Rule 12 of the Code, the plaintiff had filed those documents on record which were in its actual custody. According to him, the documents at Sr. nos.1, 2 and 6 were placed on record. He submitted that in the affidavit dated 2-7-2012 a specific statement was made that the power of attorney holder of the plainiff was having possession only of the Memorandum of Association and the same was being filed on record. As regards other documents, the matter was being verified with the Head Office. He submitted that the said witness had undertaken to communicate with the Head office and file such of the documents that were in its possession and power. He, therefore, submitted that the trial Court found that whatever documents were immediately available with the said witness were filed on record and there was no attempt on the part of the plaintiff to disregard the order of the Court. According to him, the appellate Court was not justified in proceeding on the basis that despite having custody of the remaining documents, the same were not filed on record. He submitted that the affidavit dated 2-7-2012 filed by the power of attorney holder of the plaintiff has been misconstrued and on that basis it has been held that there was a wilful breach of the direction to produce the documents. He, therefore, submitted that the drastic power of dismissing the suit under provisions of Order XI Rule 21 of the Code could not have been exercised by the appellate Court especially when the trial Court found that the plaintiff had not withheld the documents. In support of his submissions, the learned Counsel placed reliance on the decision of the Hon'ble Supreme Court in M.L. Sethi Vs. R. P. Kapur AIR 1972 Supreme Court 2372 and the judgments of the Division Bench of this Court in Municipal Commissioner for Greater Bombay and another vs. M/s Sangam Cinema 1992 (2) Mh. L. J. 1403 and Board of Trustees of the Port of Bombay Vs. UCO Bank, Singapore & Ors. 2009 (5) BCR 478 : [2009(3) ALL MR 602]. He also referred to the judgment of learned Single judge in Feroze Homi Duggan vs. Benzer Interiors pvt. Ltd. and others 2006(2) Mh.L.J. 289.

8. The aforesaid submissions were opposed by Shri A. C. Dharmadhikari, the learned Counsel for the respondent no.1. According to him, failure on the part of the plaintiff to produce the documents pursuant to the order dated 21-6-2012 despite having custody of the same was rightly found by the appellate Court to be wilful in nature and in breach of the said order. He submitted that the plaintiff had not denied the custody or possession of the documents in question. The appellate Court was, therefore, justified in observing that as the custody of said documents could be gathered to be with the plaintiff on the basis of the deposition of its witness and the said documents were not produced, the suit was rightly dismissed under provisions of Order XI Rule 21 of the Code. The conduct of the plaintiff was such that it had deliberately not produced documents on record despite having its custody. It was submitted that the trial Court itself ought to have dismissed the suit on aforesaid grounds, but it failed to do so. The appellate Court was, therefore, justified in correcting the error committed by the trial Court. According to the learned Counsel, there was no case made out to interfere with the impugned order. The learned Counsel in support of his submissions relied upon the judgment of the Hon'ble Supreme Court in M/s Babbar Sewing Machine Co. vs. Tirlok Nath Mahajan AIR 1978 Supreme Court 1436, Jai Singh and others vs. Municipal Corporation of Delhi (2010) 9 SCC 385 : [2010(6) ALL MR 410 (S.C.)] and Radhey Shyam and Anr. v. Chhabi Nath and Ors. AIR 2015 SC 3269 : [2015 ALL SCR 977]. He, therefore, submitted that the challenge to the impugned order did not deserve to be accepted.

9. I have heard respective Counsel for the parties at length and I have given due consideration to their respective submissions. Before considering the merits of the challenge to the impugned order, it will be necessary to consider the scope of the provisions of Order XI Rule 21 of the Code. It is one of those provisions in the Code under which the suit filed by the plaintiff can be dismissed for noncompliance or the defence of the defendant can be struck out. The scope and matter in which powers under Order XI Rule 21 of the Code have to be exercised have been explained in M/s Babbar Sewing Machine Company (supra). Therein the Hon'ble Supreme Court has held that the Court may exercise its discretion under Order XI Rule 21 of the Code for dismissing the suit only when the default on the part of the plaintiff is wilful and as a last resort. The party in question should be guilty of such contumacious conduct or there should be a wilful attempt to disregard the order of the Court which results in the trial of the suit be arrested. It has been further observed that the consequence of an order being passed under provisions of Order XI Rule 21 of the Code is highly penal in nature and ought to be used only in extreme cases.

The expression 'wilful' in the context of disobedience of an order has been held to be knowingly intentional, calculated and deliberate. In Ram Kishan Vs. Tarun Bajaj (2014) 16 SCC 204 : [2014 ALL SCR 678], the Hon'ble Supreme Court in para 12 of its judgment observed thus:

"12.................. The word "wilful" introduces a mental element and hence, requires looking into the mind of a person/contemnor by gauging his actions, which is an indication of one's state of mind. "Wilful" means knowingly intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, bona fide or unintentional acts or genuine inability. Wilful acts does not encompass involuntarily or negligent actions. The act has to be done with a "bad purpose or without justifiable excuse or stubbornly, obstinately or perversely" Wilful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore, there has to be a calculated action with evil motive on his part..............................."

In this backdrop therefore, if an order under provisions of Order XI Rule 21 of the Code is to be passed after considering the conduct of a party and only as a last resort, it automatically follows that exercise of such power is directory in nature and not mandatory to be exercised in each and every case.

10. In the light of aforesaid, the conduct of the plaintiff would have to be examined to determine whether the dismissal of its suit under provisions of Order XI Rule 21 of the Code was justified.

As noted above, the power of attorney holder on behalf of the plaintiff had filed his affidavit in lieu of evidence on record. He placed certain documents on record. When he was being crossexamined, he stated that he had documentary evidence to show that the plaintiff Company was holding plot No.3 in the year 1940 and the document in that regard was in his custody which could be produced. He also stated that he had documents showing the measurement of the plot in question and regarding permission to construct the Hostel. He further stated that the plaintiff Company was maintaining the income and expenditure, profit and loss and balancesheet, but he had not seen all the said documents. While his crossexamination was yet to be completed, the defendants moved an application under provisions of Order XI Rule 12 read with Rule 14 of the Code. Production of eight documents as mentioned therein were sought. In reply thereto, the plaintiff expressed willingness to file on record documents at Sr. Nos.1 and 2 which according to it were relevant. The trial Court, however, on 21-6-2012 directed the plaintiff to file all the eight documents on record. The power of attorney holder then filed his affidavit under Order 11 Rule 13 of the Code as per Form No.5 and admitted possession of the document at Sr. No.1 in the list. As regards other documents, it was stated that the Head Office had been requested to verify about the possession of said documents and he also undertook to communicate further in that regard with the Head Office.

11. It is not in dispute that the documents at Sr. Nos.1,2 & 6 were placed on record by the plaintiff. These documents were (I) Memorandum of Association of the plaintiff as a Private Limited Company (ii) list of Directors of the Company,(iii) shares held by them and (vi) document showing construction of the Boys Hostel in the year 1980, its area, measurement and permission from the Municipal Corporation. This fact can also be gathered from para no.11 of the memorandum of appeal filed by the defendant no.1.

If the deposition of the power of attorney holder is perused, it can be seen that the said witness admitted that there was documentary evidence to show that the Company was holding plot no.3 in the year 1940. Reference to this document can be seen in the list of properties mentioned in Schedule I of the public trust register, an extract of which is at record page 96 of the writ petition. This witness further admitted that he was having documents to show the measurement of the suit property and the permission granted for its construction. In the list of documents sought to be produced, these documents are at Sr. No.6 and the same were duly produced on record. The aforesaid, therefore, indicates that out of eight documents of which production was sought, the documents at Sr. nos.1,2 & 6 were placed on record while the details pertaining to the plaintiff's holding of plot no.3 was also found in Schedule I of the public trust register that was placed on record. The aforesaid conduct clearly indicates that the part of the order passed by the trial Court below Exhibit-89 on 21-6-2012 was duly complied. The aforesaid conduct of the plaintiff of complying with the part of the order does not give any indication whatsoever that the plaintiff did not intend to produce any of the eight documents of which production was sought. Out of the same, three documents were filed on record and details relating to the document at Sr. No.3 were also available on record. This conduct of the plaintiff cannot be ignored while considering the exercise of discretion under provisions of Order XI Rule 21 of the Code.

12. The documents at Sr. Nos. 4 & 5 pertain to audited accounts of the Company and the trust from the year 1996 onwards. In this regard, the witness stated that every Company and trust is required to maintain such accounts and that the plaintiff was also maintaining income and expenditure account, profit and loss account and balancesheet. He, however, stated that he had not seen the said documents. In the context of this statement of the witness in his deposition if the affidavit filed on his behalf under provisions of Order XI Rule 13 of the Code is seen, he has clearly stated that with regard to said documents, he would have to verify with the Head Office about possession of said documents and also undertook to communicate with the Head Office in that regard. From the affidavit it is clear that the witness who was deposing on behalf of the plaintiff had made attempts of verifying whether said documents were in possession of the Head office of the plaintiff. The statement in the affidavit that the Head office had been requested to verify whether said documents were in its possession cannot straight way lead to the inference that the plaintiff despite having custody of the said documents had avoided to produce the same. This conduct on the part of the plaintiff cannot be viewed as being wilful and contumacious in these facts.

The appellate Court, however, in para 14 of its order observed that as the power of attorney holder had made communication with the Head Office and there was no response, the same was sufficient to conclude that it was a wilful attempt to disregard the order of the Court. The documents that were not placed on record were audited accounts of the Company and the trust. The inference that has been drawn by the appellate Court that non-production of said documents was wilful and said inference has been drawn disregarding the earlier conduct of the plaintiff.

13. As observed by the Hon'ble Supreme Court, the penalty of dismissal of a suit under Order XI Rule 21 of the Code is to be imposed only in extreme cases where there is obstinacy or contumacy or a wilful attempt to disregard the order of the Court. The same is only as a last resort. While considering whether the conduct of the plaintiff was a wilful attempt to disregard the order of the Court resulting the trial of the suit being arrested, the overall conduct of the plaintiff would have to be seen. If out of eight documents of which production was sought, three were placed on record and the details about the fourth document could be gathered from the other documents that were placed on record coupled with the fact that the stand of verifying the availability of two other documents was taken, this conduct viewed as a whole can hardly be said to be of a wilful or contumacious nature with an intent to breach the order of the Court. True it is that the plaintiff could have placed on record the result of the efforts of its witness of communicating with the Head Office. But failure to do so in the aforesaid background cannot be considered as a wilful attempt to disregard the order of the Court.

14. In this background after finding that the plaintiff's conduct is neither in wilful breach nor contumacious, dismissal of the suit under Order XI Rule 21 of the Code would result in travesty of justice. Once it is found that the extreme penalty of dismissal of suit is not warranted under provisions of Order XI Rule 21 of the Code, a case for interference is surely made out. As observed in Estralla Rubber Vs. Dass Estate (P) Ltd.(2001) 8 SCC 97 : [2001(4) ALL MR 484 (S.C.)], interference under Article 227 of the Constitution of India is warranted whenever grave injustice is to be corrected. In the present case, grave injustice of dismissal of the suit without trial would remain uncorrected, if this Court does not interfere. The reliance placed by the learned Counsel for the respondent no.1 on the decision in Radhey Shyam, [2015 ALL SCR 977] (supra) would not further the case of the respondent no.1 as it has been found that a case for interference only under Article 227 of the Constitution of India is made out. This correctional jurisdiction being exercised in the present case is in exercise of supervisory jurisdiction to correct grave injustice caused to the plaintiff on account of dismissal of its suit. The same cannot be treated to be an exercise akin to a "bull in a china shop" for correcting of errors of judgment of a Court as sought to be urged by the learned Counsel for the respondent no.1 by relying upon the judgment of the Hon'ble Supreme Court in Jai Singh, [2010(6) ALL MR 410 (S.C.)] (supra).

15. As a sequel to the aforesaid discussion, it will have to be concluded that the dismissal of the suit under provisions of Order XI Rule 21 of the Code was unwarranted. Accordingly, the judgment of the appellate Court dated 10-1-2013 in Misc.Civil Application No.54/2012 is quashed and set aside. Special Civil Suit No.103/2004 is restored. The suit shall proceed from the stage of crossexamination of the plaintiff's witness. It would be open for the defendants to urge before the trial Court for it to draw adverse inference, if any, against the plaintiff in the facts of the present case.

16. Rule is made absolute in aforesaid terms with no order as to costs.

17. At this stage, the learned Counsel for the respondent No.1 seeks stay of the aforesaid judgment for a period of eight weeks. The said request is accepted. The trial in Regular Civil Suit No.103/2004 shall commence after a period of eight weeks from the date of this judgment.

Ordered accordingly.