NAFR

(Cause-title taken from Case Information System)

Order on Board

1. The present writ petition under Article 227 of the Constitution of India has been filed by the petitioner against the impugned order dated 15.01.2026 passed by 11th District Judge, Raipur, in Mics. Appeal No.4/2026 whereby the appeal filed by the respondents No.1&2 was allowed and the order dated 28.09.2022 passed by trial court in Civil Suit No.47-A/2018 has been set aside.

2. Brief facts of the case are that, the petitioner is plaintiff before the trial court who is prosecuting civil suit for declaring the sale deed dated 24.06.2011 as null and void and also for permanent injunction. In the said civil suit the plaintiff filed an application under Order 11 Rule 12 CPC for a direction to the defendants No.1&2 to produce original will deed dated 24.06.2011 which is in their possession. The application filed by plaintiff was replied by the defendants No.1&2 and submitted that they have already filed xerox copy of the said Will deed and therefore there is no necessity for discovery of said document. Considering the submissions made by the parties, the trial court vide its order dated 27.11.2021 directed the defendants No.1&2 to produce the original will deed dated 24.06.2011 before the court. Since the defendants had not complied with the order dated 27.11.2011 and not produced the copy of original will deed dated 24.06.2011, the plaintiff again filed an application under Order 11 Rule 21 of CPC for struck off the defence of defendants No.1&2. The said application of the plaintiff was decided on 28.09.2022 and defence of defendants No.1&2 was struck off and they have been prohibited to file the original will deed dated 24.06.2011 in further proceeding of the Civil Suit. The said order dated 28.09.2022 was challenged by the defendants No.1&2 before the appellate court in Misc. Appeal No.04/2026 which has been decided vide its judgment dated 15.01.2026 and the order dated 28.09.2022 passed by the trial court is set aside, which is under challenge in the present writ petition.

3. Learned counsel for the petitioner would submit that there is a clear mandate in the provisions of Order 11 Rule 21 CPC that if the defendants fail to comply with the order of discovery of document, their defence may be struck off, which has rightly been ordered by the trial court. The order dated 27.11.2021 by which the defendants have been directed to discover the original copy of will deed and to produce it before the court have not been complied with and also have not been challenged by them. Therefore, the defendants No.1&2 make themselves liable for its consequences which is provided under Order 11 Rule 21 CPC. The defence of defendants No.1&2 depends upon the said document and production of its original copy is very much relevant in the case as the plaintiff has challenged its authenticity and claimed to be the forged one. She would also submit that the appellate court has exceeded its jurisdiction and set aside the order passed by the trial court which is erroneous and liable to be set aside.

4. I have heard the counsel for the petitioner and perused the material annexed with the petition.

5. From perusal of order passed by the appellate court it transpires that while invoking the powers under Order 11 Rule 12 CPC, the trial court is required to apply its mind so as to find out whether an order can be passed despite objections raised by the party concerned from whom discovery was sought for. In the present case, the defendants No.1&2 have replied that they are not in possession of original will deed and have already applied for obtaining certified copy of said will deed from the office of Registrar and as and when they get the certified copy, they will produce it before the court. When the defendants No.1&2 denied possession of original copy of will deed with them, the order for production of the same may not be directed. Even when the direct