A party cannot be compelled to produce documents not in its possession, and adverse inference may apply for willful non-production at trial.

JUDGMENT

Tushar Rao Gedela, J. (ORAL)

1. With the consent of parties, the present petition is taken up for final disposal.

2. The petitioner challenges the order dated 07.03.2018 passed by the learned Trial Court upon an application filed under Order 11 Rule 12 and 14 read with Section 151 CPC seeking directions to defendant Nos. 1 to 3 for production of certain documents. Learned counsel submits that in the written statement the stand of respondent No.1/defendant No.1 is that the defendant No.4 is in possession of a portion of the property after "customary" documents of sale were executed by respondent No.1/defendant No.1 for consideration.

3. Learned counsel also submits that the written statement refers to the sale of the property by "customary" documents. Learned counsel submits that despite stating about the sale of the property by virtue of customary documents, no such document was filed on record along with the written statement.

4. Learned counsel submits that in order to enable the petitioner to understand and unravel the sequence of transactions, it would be imperative for the respondents to be directed to produce the customary sale documents. It was for this purpose that the said application was filed.

5. Per contra, learned counsel appearing for respondent No.1/defendant No.1 submits that his categorical stand, as also observed in the impugned order is that, once the respondent No.1/defendant No.1 disposed of the property and handed over the possession thereto to the purchaser, he cannot be compelled to produce or file such documents which are not in its possession.

6. Learned counsel appearing for respondent No.1/defendant No.1 has drawn attention of the Court to para 3 at page 75 of the reply on merits to the statement that the respondent No.1/defendant No.1 is not in possession of any portion of the subject property.

7. So far as respondent Nos.2 and 3 who are the defendant Nos.2 and 3 before the learned Trial Court is concerned, Mr. Anshul Mittal, learned counsel appearing on their behalf submits that as far back as on 14.10.2014, they had already filed documents available with them along with their written statement including the document which the petitioner is seeking in the application under Order 11 Rule 12 & 14 CPC.

8. After having considered the arguments of the parties and going through the impugned order, this Court is of the considered opinion that the present petition is devoid of any merit for the following reasons.

9. From the perusal of the impugned order coupled with the submissions made herein, it is clear that the respondents/defendants have categorically taken a stand that all documents that they seek to rely on to defend their case, have already been filed on record and no other document remains to be filed on their behalf.

10. Learned Trial Court has rightly observed that the respondents in the present case cannot be directed to produce documents which they categorically submit are not in their power and possession. The learned Trial Court has also observed that if at the later stage or during the trial, it is found that the non-production of the documents, as sought, was willful, an adverse inference would be taken against them at an appropriate stage.

11. The reasoning given by the learned Trial Court is found to be in accordance with law and the jurisdiction vested upon it. There is no apparent error or illegality in the procedure as followed by the learned Trial Court. Reiterating the observations of the learned Trial Court that an adverse inference may be taken by the learned Trial Court at