Failure to produce documents directed to be produced by an order of court passed under Order 11, Rule 14, C.P.C. does not fall under Order 11, Rule 21, C.P.C.

The plaintiff in O.S. 12 of 1982, Sub-Court, Pattukotai, is the appellant in this civil miscellaneous appeal. The appellant instituted that suit against the respondent herein and others praying for the relief of partition and separate possession of his one-fourth share in the A and B schedule properties. That suit is pending. In I.A. 219 of 1983 in O.S. 12 of 1982, filed under O.11, R.14 and S.151, C.P.C. the petitioner prayed that the respondent may be directed to produce into court certain documents detailed in the application. On 12-4-1983, the learned Subordinate Judge passed an order directing the respondent herein to produce the documents set out in I.A. 219 of 1983. Later on 13-9-1983, learned counsel for the respondent made an endorsement to the effect that the documents are not available. Thereupon, the appellant filed I.A. 562 of 1983 in O.S. 12 of 1982, purporting to be under O.11, R.21, C.P.C. praying that the defence of the respondent in the suit should be struck out and that he should be placed in such a position as if he had not defended the claim of the appellant in the suit for partition in O.S. 12 of 1982 instituted by the appellant. In the affidavit filed in support of that application, the appellant stated that the order directing the production of the documents by the respondent was passed after hearing the respondent and if the documents were not a vailable, then he should have stated so prior to the passing of the order on 12-4-1983, and the subsequent endorsement made by the learned counsel for the respondent to the effect that the documents are not available amounts to a wilful refusal to obey the directions of Court, and far the failure of the respondent to produce material document despite an order of Court, the legal consequences in terms of O.11, R.21, C.P.C. would follow and, therefore, the defence of the respondent in the suit should be struck out. The respondend in his counter-affidavit, reiterated that the documents directed to be produced were not in his possession or custody and that it was not his intention to disobey or disregard any direction of Court. An objection that the application filed by the appellant under O.11, R.21, C.P.C. is not maintainable on the facts and circumstances of the case was also raised. The learned Subordinate Judge, Pattukottai held that the appellant had not established by prima facie evidence that the respondent had the custody of the documents directed to be produced and that the non-production of the documents by the respondent had not been established to be wilful. Dealing with the objection that the application under O.11, R.21, C.P.C. was misconceived and not maintainable, the learned Subordinate Judge held that the refusal to produce the documents under O.11, R.14, C.P.C. would not fall within the scope of O.11, R.21, C.P.C. and, therefore, the provisions of O.11, R.21, C.P.C. could not be invoked by the appellant. On the aforesaid conclusions, the application filed by the appellant in I.A. 562 of 1983 was dismissed. It is the correctness of this that is questioned in this civil miscellaneous appeal.

2. Learned counsel for the appellant contended that the order for the production of the documents was passed after hearing the learned counsel for the respondent and if even at the time of the passing of that order, the respondent did not have the custody of the documents directed to be produced, that fact could have been brought to the notice of the court, which, however, was not done, but after the lapse of nearly five months after the order for production of the documents, an endorsement was made to the effect that the documents are not a vailable and this clearly indicated contumacy on the part of the respondent or a wilful attempt to disregard the order of Court for production of documents justifying the striking out of the defence of the respondent in the suit. Per contra, learned counsel for the respondent submitted that the application filed