When a defendant fails to produce a document as directed by the court in an application filed by the plaintiff whether his defence could be struck off under Rule 21 of Order XI of Code of Civil Procedure? Even if the defence is struck off can the court deny the defendant his right to cross-examine the witnesses examined on the side of plaintiff? These are the substantial questions of law to be decided in the second appeal.

2. Respondent instituted the suit before Munsiff Court, seeking a decree for injunction. Appellant, the defendant filed a written statement disputing the right and possession claimed by respondent. Trial court framed necessary issues. Respondent filed I.A.837 of 1987 purporting to be under Rule 11 of Order XI seeking an order directing appellant, defendant to produce the original of the registered sale deed which is claimed to be in his possession. Trial court directed appellant to produce the original sale deed. Appellant did not produce the document. Thereafter respondent filed I.A.163 of 1988, an application under Rule 21 of Order XI to strike off the defence. The petition was opposed by the appellant. He also filed an affidavit to the effect that he is not in possession of the document sought to be produced and therefore he is not in a position to produce the same. Disregarding the objection learned Munsiff allowed that application and struck off the defence. Thereafter plaintiff was examined. Appellant was denied opportunity to cross-examine the witnesses. Accepting the evidence a decree was granted. Appellant challenged the decree and judgment before first appellate court. It was contended that the trial court should not have struck off the defence and in any case should not have denied an opportunity to cross-examine the witnesses. First appellate court rejected the contentions and dismissed the appeal. It is challenged in the second appeal.

3. Second appeal was admitted formulating the following substantial questions of law.

(i) Were the courts below justified in invoking the powers conferred under Rule 21 of Order 11 of Code of Civil Procedure for non-compliance with an order for production of the document and striking off the defence.

(ii) Were the courts below justified in granting a decree without considering the genuineness of the plaint claim.

4. Learned counsel appearing for appellant and respondent were heard.

5. Learned counsel relying on the decision of the Apex Court in Babbar Sewing Machine Co. v. Tirlok Nath Mahajan AIR 1978 S.C. 1436 argued that courts below should not have struck off the defence for the failure of appellant to produce the document directed to be produced, in the absence of specific finding that there has been obstinacy or contumacy on the part of the appellant or any wilful attempt to disregard the order of the court. Relying on the decision of the Apex Court in Modula India v. Kamakshya Singh Deo A.I.R. 1989 S.C. 162 the learned counsel argued that even if striking off the defence was justifiable, the non granting of an opportunity to cross-examine the witness examined on the side of the respondent was illegal and therefore the decree and judgment are unsustainable. Relying on the decision of a Single Judge of the High Court of Madras in Chinnappan v. Ramachandran A.I.R. 1989 Madras 314 and a Single Judge of Allahabad High Court in Praveen Kumar v. VII Additional District Judge, Meerut A.I.R. 1994 Allahabad 153 it was argued that the order to struck off the defence was illegal and for the failure to produce the document directed to be produced invoking the powers under Rule 2 I of Order XI was not justifiable and at best only an adverse inference could have been drawn.

6. The records of the trial court reveal that after issues were settled, respondent filed I.A.837 of 1987 on 12-10-1987 seeking an order for directing appellant to produce the registered sale deed, which according to the respondent is not a genuine deed. The orders in the application show that it w