ORAL JUDGMENT:- Admit. The appeal is being heard and finally at the stage of admission. Appeal From Order No. 73 of 2006 decided on 31-8-2006. (Aurangabad)

2. By this appeal, the appellant Zilla Parishad, Aurangabad challen order passed by the Civil Judge, Senior Division, Aurangabad on 3-2-200 Exhs.27 and 28 in Special Civil Suit No. 372 of 2004 striking out the de the appellant Zilla Parishad under the provisions of Order 39 Rule 11 of t of Civil Procedure. By this appeal, the appellants have also challenged t passed below Exh.30 on 4-7-2006 rejecting the application filed by the ap for setting aside the order dated 3-2-2006 by which the Court had direc the defence of the appellants be struck off. A few facts giving rise controversy in question are stated as under:

The respondent Contractor filed Special Civil Suit No.372 of recovery of amount of Rs. 25,10,401/- against the appellant Zilla P Aurangabad. The Zilla Parishad, Aurangabad resisted the claim of the contractor by filing written statement and also filed a list of documen with the written statement. On 21-10-2005, the plaintiff contractor application for production of six documents under the provisions of Rule 8 of the Code of Civil Procedure and the Civil Judge, Senior Aurangabad, by an order dated 16-1-2006, directed the defendant Zilla Aurangabad to produce the documents as per the notice. The appellant Zilla Parishad, Aurangabad was, however, not able to produce all the d which were directed to be produced by order dated] 6-1-2006. According appellant Zilla Parishad, Aurangabad, one of the documents was available the Zilla Parishad, Aurangabad and, therefore, it had produced it on could not produce the other documents in time as the appellant/defend public body having various departments and the present matter pertained supply department. It was also brought to the notice of the Court by a application dated 28-2-2006 by the appellant that the plaintiff had received the approved bill for the years 1999-2000 and 2000-2001 ana copies were in possession and custody of the plaintiff. Since the appe not able to comply with the order passed by the trial Court dated 16-1 plaintiff filed an application under provisions of Order 39 Rule 11 of th Civil Procedure praying that the defence of the Zilla Parishad, Auran struck off as there was non-compliance of the orders passed by the Co 1-2006. Though the appellants sought time for production of the docu Court refused to grant the same and by the impugned order dated struck off the defence of the Zilla Parishad, Aurangabad.

3. Thereafter the appellant Zilla Parishad, Aurangabad produced certain documents, as per the list and requested the Court that the measurement book etc. be taken on record and the order passed by the 3-2-2006 be set aside. After considering the application and the say fi respondent/plaintiff, the Civil Judge, Senior Division, Aurangabad re application filed by the appellant Zilla Parishad, Aurangabad for settin order dated 3-2-2006, by order dated 28-2-2006. The appellants have the orders passed by the Civil Judge, Senior Division, Aurangabad on and 28-2-2006 in the instant appeal.

4. Shri B. R. Surwase, learned counsel appearing on beh appellants submitted that the trial Court exceeded its jurisdiction whil the application filed by the plaintiff under the provisions of Orders 39, Rule 11 of the Code Civil Procedure. It was canvassed on behalf of the appellants that in the appellants had failed to produce the documents as per the direction of the by order dated 16-1-2006, the Court at the most could have drawn an adverse inference against the Zilla Parishad, Aurangabad at the time of deciding uit on merits but could not have struck off the defence of the defendant Zilla had, Aurangabad by invoking the provisions of Order 39, Rule II of Code ivil Procedure. It was then canvassed on behalf of the appellants that the dated 3-2-2006 is a cryptic order and the only reason for allowing the application of the pla

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