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2025 DAILYLAW 3551 (HP)

Arun Sen Chand v. Mahinder Kumaar

2025-09-22

Ajay Mohan Goel

body2025
JUDGMENT : Ajay Mohan Goel, Judge 1.By way of this petition, the petitioner has assailed order dated 09.10.2018, passed by the learned Trial Court, which reads as under:- Today, ld. Defendant’s counsel has filed copy of gift deed. However, remaining documents at Sr. No.2, 3, 4 and 5 which the defendant was directed to produce has filed his affidavit in which he submitted that original memorandum of family settlement was filed alongwith return under the Ceiling Act more than 45 years ago but the same is not traceable and agreement dated 1.1.1977 is also not traceable. The affidavit is taken on record. Since, the defendant, who had pleaded about agreement dated 1.1.1977 has failed to produce it despite directions of the Court, therefore, his defence is struck out under Order 11 Rule 21 CPC qua this agreement and also qua sale deed allegedly executed by Lachhi Ram and qua notice served upon Lachhi Ram. However, the question whether the family settlement was filed with the Ceiling Act and has misplaced will remain open for adjudication. Now be put up for filing replication on 19.12.2018.” 2. Brief facts necessary for the adjudication of this petition are that respondents herein have filed a suit against the petitioner herein praying for the following relief:- “It is, therefore, prayed that the decree for declaration may be passed in favour of the plaintiffs and against the defendant to the effect that the plaintiffs are absolute owners in possession of the suit land comprised in Khata/Khatauni No.59/59, bearing Khasra No.367, 369, 370, 373, 374, 375, 377, 378, 380, 381, 382, 383, 384, 385, 386, 408, 410, 411, 412 and 414 kitas 20 measuring 160 Bighas 16 Biswas 14 Biswansi situated in Mauja Jatrog, Hadbast No.433, Sub Tehsil Krishangarh, District Solan HP and the defendant has no right, title and interest in or over the suit land in any manner whatsoever. The mutation No.128 and 129 dated 11.6.76 sanctioned behind the back of the plaintiffs and their predecessor in interest are wrong, illegal, null, void and subsequently the mutation No.320 dated 25.10.2010 sanctioned in favour of the defendant in pursuance of judgment and decree dated 11.7.1996 passed in RFA No.61/74 by the Hon’ble High Court of HP is wrong, illegal, null, void, without jurisdiction and is not binding upon the rights, title and interest of the plaintiffs. Consequently the revenue entries incorporated in pursuance of mutation No.320 in favour of the defendant are also wrong, illegal, null, void and are in operative qua the right, title and interest of the plaintiffs and alleged revenue entries do not confer any right, title and interest unto the defendant. Consequently a decree for permanent injunction may be passed in favour of the plaintiffs and against the defendant restraining the defendant from raising any claim qua the suit land, causing any interference in the ownership and peaceful possession of the plaintiffs, dispossessing the plaintiffs from the suit land forcibly and illegally, making alienation qua the suit land and causing damage and waste to the existing structures and standing valuable trees therefrom and also from changing nature of the suit land or any part thereof either by himself, through his agents, servants, or any person claiming under him whosoever in any manner whatsoever. In case during the pendency of the suit the defendant succeeds in dispossessing the plaintiffs from the suit land forcibly or illegally in that event a decree for possession may be passed in favour of the plaintiffs and against the defendant with cost of the suit, in the interest of justice.” 3. The copy of the plaint is appended with the petition as Annexure P-1. Written statement to the same stands filed. The suit was filed in the year 2015 and the written statement was filed thereto in the month of September, 2015. 4. During the pendency of the case on 13.12.2015 an application was filed by the plaintiff under Order 11 Rule 12, 14 and 15 of the Civil Procedure Code calling upon the learned Trial Court to pass necessary directions to the defendants to produce the original documents i.e., copy of gift deed of Smt. Rani Krishna Kumari, Original agreement dated 1.1.1977, Memorandum of Family Settlement, Sale deed executed by Shri Lachhi Ram in favour of defendant or his family members, notice allegedly served upon Shri Lachhi Ram, for the purpose of inspection of the applicants and also one attested copy thereof be ordered to be supplied to the applicants. 5. Record demonstrates that on 01.09.2017 said application was disposed of by the Court in the following terms: “Accordingly, the present application is allowed and respondent/defendant is directed to produce on record on oath under Order 11 Rule 14 CPC following documents:- 1. 5. Record demonstrates that on 01.09.2017 said application was disposed of by the Court in the following terms: “Accordingly, the present application is allowed and respondent/defendant is directed to produce on record on oath under Order 11 Rule 14 CPC following documents:- 1. Copy of gift deed of Rani Krishna Kumari, 2. Original agreement dated 1.1.1977, 3. Memorandum of family settlement, 4. Sale deed executed by Shri Lachhi Ram in favour of defendant and his family member and 5. Notice served upon Sh. Lachhi Ram. Application stands disposed of accordingly. It after due completion be tagged with the main case file. Let, file be put up for production of documents on behalf of defendant on 7.11.2017.” This order is on record appended with the petition as Annexure P-5. 6. Thereafter, on 07.11.2017, learned Trial Court passed the following order:- “Ld. Counsel appearing for the defendant prayed time for supply copies of documents to the opposite party as directed vide order dated 1.2.2017. Prayer considered and allowed. Let file be put up for production of documents on behalf of defendant on 09.01.2018. It being last opportunity.” 7. However, as despite order dated 01.09.2017 and 07.11.2017, the complete documents were not produced by the defendant, learned Trial Court passed the impugned order. 8. Learned counsel for the petitioner has assailed the order on the ground that the same is not in consonance with statutory provisions. He submits that in terms of the provisions of Order 11, the maximum learned Trial Court could have done was that it could have precluded the defendant from placing the said documents on record later on and taking benefits thereof, but learned Trial Court could not have struck of the defence of the defendant as has been done. He accordingly prayed that on this count, the impugned order is liable to be set aside. 9. On the other hand, learned Senior Counsel for the respondents by drawing the attention to the provisions of Order 11, Rule 21 of the Civil Procedure Code submitted that the order of the learned Trial Court is strictly in consonance with the said provisions and therefore as there is no infirmity in the impugned order, the petition be dismissed. 10. I have heard learned counsel for the parties and have also carefully gone through the impugned order as well as other documents on record. 11. 10. I have heard learned counsel for the parties and have also carefully gone through the impugned order as well as other documents on record. 11. The background which led to the passing of the impugned order has already been dealt hereinabove. 12. The moot issue before this Court is as to whether in the circumstances of the case, the learned Trial Court was justified in striking off of the defence of the defendant or not. 13. A perusal of the pleadings demonstrates that in the application filed under Order 11, Rule 12, 14 and 15 of the Civil Procedure Code, the applicant had stated therein that the defendant had filed the written statement and in the preliminary objections and on merit had pleaded that the suit land was gifted to the defendant by Rani Krishana Kumari and there was a family dispute which was amicably settled by way of a settlement. Defendant had also pleaded family settlement with respect to the suit land in the preliminary objections had also become invalid. Thus, the case set up by the defendant was that the suit land was initially owned by Rani Krishna Kumari, who gifted the same to defendant and thereafter a family settlement took place with respect of the suit land by way of memorandum of family settlement inter se family members. According to the applicant, defendant had not placed on record the copy of the alleged gift deed as well as the memorandum of family settlement. It was further pleaded in the said application that the defendant had also pleaded in preliminary objection No.3 as also in Para-3 of the written statement on merit that an agreement dated 01.01.1977 was entered into between Lachhi Ram the predecessor of applicant and other owners i.e., the family members of defendant for re-sale of the suit land, whereby the sale consideration was agreed to be returned to Lachhi Ram. Lachhi Ram handed over the possession to other owners and accordingly Lachhi Ram on 01.01.1977 returned or sold the suit land to the owners and, therefore, Lachhi Ram has no right, title and interest over the suit land. Lachhi Ram handed over the possession to other owners and accordingly Lachhi Ram on 01.01.1977 returned or sold the suit land to the owners and, therefore, Lachhi Ram has no right, title and interest over the suit land. It was further averred in the application that in Para-5 of the written statement, it was mentioned that Lachhi Ram had transferred all his legal rights, title and interest qua the suit land in favour of the owners vide writing/sale deed dated 01.01.1977 and defendant had also pleaded that a notice was allegedly given to Lachhi Ram in respect of the litigation and decision thereof as well as qua the preference of appeal to the Hon’ble Supreme Court. It was also averred in the application that the defendant had not placed on record the copies of the said agreement, sale deed and notice and therefore, in order to prepare the replication to the written statement, the applicant wanted to examine and inspect the above mentioned documents regarding their genuine- ness, actual execution etc. It is in this backdrop, that the request was made by the applicant for issuance of a direction to the non- applicant for the production of the said documents. 14. Reply to the said application demonstrates that it was mentioned therein that a copy of family settlement was filed by the respondent alongwith return under the Ceiling Act in the Court of learned Sub Divisional Collector, Solan, however at that stage said file was not traceable so copy of memorandum of family settlement could not be supplied. With regard to the copy of gift deed made by Rani Krishna Kumari, it was mentioned that said gift deed was duly registered with Sub Registrar Krishangrah and applicant could obtain certified copy of the same as the same is a public document and the applicant was not entitled to have the copy of the same from the reply respondent. With regard to the agreement dated 01.01.1977 and sale deed executed for return of the suit land to the original owners, it was mentioned that same were reduced into writing on simple paper and now after a period of 40 years approximately, both these writings were not traceable. With regard to the agreement dated 01.01.1977 and sale deed executed for return of the suit land to the original owners, it was mentioned that same were reduced into writing on simple paper and now after a period of 40 years approximately, both these writings were not traceable. With regard to the notice served upon Lachhi Ram qua the litigation under the Abolition of Big Landed Estate Act, it was mentioned that said respondent had made all efforts to trace above mentioned copy of agreement, sale document and notice all on plain papers but the same were not available at said stage and, therefore, office could not be supplied with the same. 15. Now, as already observed hereinabove, learned Trial Court on 01.09.2017 had directed the respondent to supply the documents and the respondent did not assail this order. Therefore, fact of the matter remains that a judicial order passed by the Competent Court to produce on record, on oath the documents in terms of the provisions of Order 11, Rule 14 of Civil Procedure Code and consequently the documents mentioned therein remained un-complied completely. 16. In this backdrop, if one peruses the provisions of Order 11 Rule 21 of the Civil Procedure Code, the language of the said statutory provision demonstrates that the consequences that result from the non-compliance of an order for discovery is to the effect that if non-compliance is on the part of the defendant, then, the defence of the defendant, if any, is to be struck off and the defendant is to be placed in the same position as he had not defended and the party interrogating or seeking discovery or inspection can apply to the Court for an order to that effect. 17. While dealing with the provisions of Order 11, Rule 21 of the Civil Procedure Code, Hon’ble Supreme Court of India in M/s Babbar Sewing Machine Company versus Trilok Nath Mahajan (1978) 4 SCC 188 has held that the principle governing the Court's discretion under Order 11, Rule 21 is that same is only to be exercised when the default is willful and as a last resort that the Court should dismiss the suit or strike out the defence, when the party is guilty of such contumacious conduct or there is a willful attempt to disregard the order of the Court and the trial of the suit is arrested. 18. 18. Applying the judgment of the Hon’ble Supreme Court to the facts of this case, this Court is of the considered view that when learned Trial Court passed the order in the application filed by the plaintiffs under Order 11 Rule 12, 14 and 15 of the Civil Procedure Code, dated 01.09.2017 directing the defendant to produce the documents on oath, in case, the defendant was aggrieved by the said order, then said order should have been challenged. In the absence of any challenge to the said order and having accepted said order, the defendant was bound to produce the said documents on record. Failure on the part of the defendant to do so obviously would have had attracted, the consequences as envisaged under Order 11 Rule 21. 19. Learned Trail Court, in terms of the impugned order, therefore, in the peculiar facts of this case, cannot be said to have erred in passing the impugned order. It cannot be said that any jurisdictional error was committed by the learned Trial Court while passing the impugned order. 20. Accordingly, in light of the above observations, this Court does not find any infirmity in the impugned order and further is of the considered view that there is no occasion, for this Court to interfere with the order passed by the learned Trial Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. The petition is accordingly dismissed. Pending miscellaneous applications, if any, also stand disposed of.