The defence of a defendant cannot be struck out under Order 11 Rule 21 of the Civil Procedure Code for non-compliance of an order for production of documents, as non-production of documents does not entail striking out of the defence.

Bela M. Trivedi, J.

This common judgment is being passed for disposing of the Civil Writ Petition No.4210/2011 as well as the Civil Misc. Appeal No.2045/2012, which are inter-connected with each other and arises out of the proceedings in the same suit.

2. The S.B. Civil Writ Petition No.4210/2011 has been filed by the petitioner-defendant challenging the order dated 01.02.2011 passed by the Additional District & Sessions Judge (Fast Track) No.9, Jaipur City, Jaipur (hereinafter referred to as 'the trial court) in Civil Suit No.19/2007 (207/2002), whereby the trial court has allowed the application of the respondent No.1-plaintiff filed under Order 11 Rule 12, 14 & 15 read with Section 151 of Civil Procedure Code. The C.M.A. No.2045/2012 has been filed by the same appellant-defendant challenging the order dated 03.03.2012 passed by the trial court in the said suit, whereby the trial court has allowed the application of the respondent No.1-plaintiff for striking out the defence of the appellant-defendant under Order 11 Rule 21 read with Section 151 of C.P.C.

3. The chronology of events necessary for the purpose of deciding these two matters is that the respondent-plaintiff has filed the suit against the petitioner-defendant for eviction and for recovery of arrears of rent, and the said suit is pending before the trial court. During pendency of the suit, the plaintiff filed an application under Order 11 Rule 12, 14 & 15 read with Section 151 of C.P.C. seeking production of the documents as mentioned in the said application, which were allegedly in the power and possession of the defendant. The said application of the plaintiff was resisted by the defendant by filing a reply. The trial court vide the order dated 01.02.2011 allowed the said application of the plaintiff and directed the defendant to produce the documents as sought for by the plaintiff. The said order is under challenge in the writ petition No.4210/2011. It appears that thereafter the matter was adjourned from time to time at the request of the learned counsel for the petitioner-defendant for production of the said documents. On 16.09.2011, the respondent-plaintiff submitted an application before the trial court for striking out the defence of the appellant-defendant under Order 11 Rule 21 on the ground that the order dated 01.02.2011 passed by the trial court was not complied with by the defendant. The said application was also resisted by the appellant-defendant by filing a reply on 14.11.2011. The trial court vide the order dated 03.03.2012 allowed the said application of the plaintiff and struck out the defence of the defendant under Order 11 Rule 21 of Civil Procedure Code. The said order is under challenge in the Civil Misc. Appeal No.2045/2012.

4. In the first limb of her arguments, Ms. Sukriti Kasliwal submitted that in the application filed by the respondent-plaintiff, under Rule-12, 14 & 15 of Order 11, no discovery of documents was sought, and what was sought was production of documents allegedly in possession of the petitioner-defendant. According to her, the trial court also without passing any order for the discovery of the documents under the said Rule 12, had straightway directed the defendant to produce the documents as sought by the plaintiff, which order as such was not sustainable in the eye of law. She further submitted that though the said order of trial court directing production of the documents was under challenge before this Court by way of writ petition, the trial court further allowed the application of the plaintiff for striking out the defence of the defendant, on the ground of non-compliance of the order dated 01.02.2011. According to her, the subsequent order striking out the defence of the defendant also suffers from gross illegality in as much as the defence of the defendant could be struck out under Order 11, Rule 21 only if the defendant had failed to comply with the order of the trial court to answer the interrogatories or f