Point of Law : When document is found in possession of opposite party or under his power, an adverse inference can be drawn in proper cases, but court cannot substitute exercise of jurisdiction under Rule 21 either to strike off defence or to dismiss suit.

JUDGMENT :

The question came up for consideration is whether it is permissible to invoke the power under Rule 21 of Order XI C.P.C. when there is non-compliance of an order passed under Rule 14. The operative portion of impugned order in I.A.No.10/2022 dated 25/5/2022 is extracted below for reference:

“11. In the result, this application is allowed and the documents of the defendant is struck off and the defendant is placed in the same position as if the defendant had not defended. Respondent/defendant is directed to pay costs of this proceedings to the applicant.”

2. The impugned order is seen passed under Order XI Rule 21 C.P.C., which is extracted below for reference :

“Non-compliance with Order for discovery

(1) Where any party fails to comply with any Order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an Order to that effect and an Order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard.

(2) Where an Order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action.”

3. Rule 21 has no application to an order under Rule 14 of Order XI C.P.C. directing any party to a suit to produce any document in his possession or power relating to any matter in question in such suit. The court cannot dismiss the suit for want of prosecution or strike off the defence as if the defendant had not defended the proceedings, when there is non-compliance of an order directing the party to produce certain documents under Rule 14 of Order XI C.P.C.. There is failure on the part of the trial court to appreciate the difference in the expressions “interrogation,” “inspection”, “discovery” and “production” of documents“ dealt under Order XI C.P.C.. The impugned order was passed due to non-compliance of an order under Rule 14 directing production of documents and has struck off the defence set up by the defendant. An order passed under Rule 14 of Order XI C.P.C. directing any party to produce a document in his possession or power and non compliance, if any, thereof would not come under the purview of Rule 21 and as such, the party cannot be crippled as against his right to proceed with the suit or to defend the same by resorting to the extreme measure, by dismissing the suit for want of prosecution or struck off the defence by placing him as if he had not defended, under that Rule – Rule 21 of Order XI C.P.C., though it is permissible to draw an adverse inference so far as possible and to the extent permissible on account of such non-production, that too only on satisfaction that there is wilful default in production of the document either “in his possession” or “under his power”. The jurisdiction vested with the court under Rule 11, 12, and 18 of Order XI C.P.C. with respect to “interrogation”, “inspection” and “discovery” is quite different from that of Rule 14 - “production of document”. A document which is in the “possession” or “power” of opposite party alone can be directed to be produced by exercising the jurisdiction under Rule 14 of Order XI C.P.C. and hence every order passed under that Rule would operate only with respect to a document which is in the possession of or within the power of opposite party. Necessarily, it may not have any application with respect to a document, which is not in the possession or power of opposite party. The opposite party can file an affidavit in that behalf as against the direction/order to produce any document. When the document is found in the possession of opposite party or under his power, an adverse inference can be drawn in prop