The distinction between Order 11, Rule 12 and Order 11, Rule 14 of the Code of Civil Procedure, 1908 and the applicability of Order 11, Rule 21, CPC.

JUDGMENT :

S. Chatterji, J. - The present Misc. Appeal is at the instance of the plaintiff-appellant challenging the order dated 5-2-1990 made by the learned Subordinate Judge, Rourkela dismissing its suit under Order 11, Rule 11.CPC. It appears from the materials on record that the plaintiff filed the money suit asserting inter alia that it manufactures and despatches for sale refractory items and other itmes in its factory at Lathikata to the buyer-industries against their orders. The defendant placed orders with it from time to time for supply of refractory products and chromite dust/powder from the plaintiff's refractory plant at Lathikata during the years 1980 to 1984. The plaintiff supplied the said materials as per the orders of the defendant during the said period to the tune of Rs. 16,43,791.27 as detailed in the schedule to the plaint. It was alleged that the defendant had paid Rs. 9,65,599.00 as advance from time to time for the said supply and on subsequent demand had paid Rs. 5000/- only on 10-12-1986 leaving an outstanding of Rs. 6,73,192.27. The plaintiff therefore prayed-for a dacree for the aforesaid amount of Rs. 6,73,192.27 together with damages at the rate of 18% per annum from the date of the suit till realisation.

2. The defendant appeared and filed a petition on 3-10-1988 for time to file its written statement and thereafter took a number of adjournments. Then on 7-1-1989 the defendant filed a petition under Order 11, Rule 12 of Civil Procedure Code, inter alia for calling upon the plaintiff to produce certain documents as fully elaborated in the petition itself. It was asserted by the defendant in the said petition that It the plaintiff would not produce the documents after receiving the notice, the plaintiff should be debarred from taking advantage of producing the said documents lateren and if the plaintiff would produce the said documents after filing of the written statement by the defendant, the same should not be accepted. The plaintiff filed objection to such petition pleading inter alia that the documents discovery of which was wanted under Order 11. Rule 12. CPC had not been relied upon by the plaintiff in the suit and the same were not necessary at the stage before filing of the written statement by the defendant. The learned trial Court, however, by order dated 3-3-1989 directed the plaintiff to file an affidavit under Order 11, Rule 13, CPC and the plaintiff accordingly filed the same. The trial Court by its order 20-4-1989 directed the plaintiff to file the documents which were in its possession. It is placed on record that the plaintiff filed some documents and the learned trial Court directed it to produce the other documents by order dated 24-4-1989. The learned trial Court granted time to the plaintiff to file the said other documents as last chance by Order dated 26-6-1989. The learned trial Court by order dated 27-7-1989 allowed a last chance to the defendant to file its written, statement on 16-8-1989. The defendant thereafter filed a petition under Order 11, Rule 21, CPC and the learned trial Court by its order dated 26-10-1989 gave another chance to the plaintiff to produce document Nos. 2, 3, 4 and 6 and subsequently the learned trial Court by its order dated 5-2-1990 dismissed to suit under Order 11, Rule 21. CPC non-production of all the documents as directed.

3. The plaintiff therefore filed Misc. Case No. 29 of 1990 under Order 9, Rule 9 of CPC on 6-3-1990 for restoration of the suit which was ultimately dismissed by the trial Court on 12-11-1993 against which Misc. Appeal No. 148 of 1994 has been filed in this Court. The present Misc. Appeal 149 of 1994 agasinst the order of dismissal of the suit under Order 11, Rule 21, CPC and M. A. 148 of 1994 against the order of dismissal of Misc. Case No. 29 of 1990 for restoration of the suit are. being heard jointly and analogously and are disposed of by this common order.

4. It is placed on record that in spite of notice being served on