Failure to comply with a court order for the production of documents may result in the striking off of the defence, especially if the party's explanation is unsatisfactory and contradictory.

( 1 ) THIS order shall dispose of I. A. No. 9161/99 in S. No. 182/97, I. A. 9158/99 in S. No. 183/97 and I. A. 9159/99 in S. No. 184/99.

( 2 ) THE Plaintiffs had earlier filed I. As. under Order 11 Rule 12 for the production, particularly, of the following documents:

(I) documents relating to sale transaction executed by the defendant with the 3rd Party.

(II) letters written by the defendant informing the Plaintiff about the completion of the flat in question.

(III) completion certificate issued by the appropriate authority in respect of the premises in question.

(IV) any other document which this Hon ble Court may deem fit in the facts and circumstances of the case.

( 3 ) THESE applications were allowed by order dated 9. 8. 1999 on the submission of the Defendant s counsel that he will file all the documents called for in the application, which are in his power and possession, within two weeks. Despite these orders no documents were produced by the Defendant, thereby necessitating the filing of the present application seeking the passing of the appropriate orders for striking off the Defendant s defence.

( 4 ) A Reply on behalf of Defendant was stated to have been filed in the Registry but since this was not forthcoming from the record, a copy of the Reply was handed over at the time of arguments. In the Reply it has been stated that the "documents sought by the plaintiff were not in the power and possession of the Defendant and that if at all these documents were with the Defendant, in all probability the same were lost when the defendant s house was demolished by the MDC on or about July 1998". It was further stated that the Defendant had not taken the plea that it had written letters to the Plaintiff informing the latter about the completion of the suit property.

( 5 ) IN my view the stand which has now been taken by the Defendant could well have been taken in answer to abovementioned applications. In that events, perhaps, the-previous orders would not have been given. This is not a case where one of many other documents of which production has been ordered, is not available. The Defendant s stand is most unsatisfactory inasmuch as he has firstly stated that no documents existed and thereafter adopted the stand that even if any such documents had existed, they had perished when his property was demolished by the M. C. D. Details of this demolition ought to have been given earlier, and certainly should have been given today. The Defendant s story does not inspire any credence at all. The sequence of events lead me to conclusion that the Reply to the application discloses such contumaciously recalcitrant behaviour on the part of the Defendant as would justify very strict action. Learned counsel for the Defendant argued then it was within the discretion of the Court whether to strike out the defence or not even though the word `shall has been employed in the Provision. Even if there is a discretion available to the Court he facts of the present case are not such as would justify the declining of the relief claimed for in this application. In para six of the Written Statement it has been averred that "it is categorically denied that the Defendant failed to give any notice about the completion of the flat". This statement can be para phrased only to mean that the Defendant had given a notice, which is now not being filed. Considering the issues which have arisen in the suit, it is palpably evident that the production of a copy of the notice would either prove the assertions made by the Plaintiff or would contradict the stand taken in the Written Statement. It is for this reason that the Defendant is approbating and reprobating.

( 6 ) FOR the reasons discussed above I accept the Plaintiffs applications and strike off the defence of the Defendant.

( 7 ) I. AS. are disposed of accordingly.

( 8 ) S. Nos. 182/97, 183/97 and 184/97

( 9 ) AS the defence of the Defendant has been struck off, no purpose would be