Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.4834 OF 2013
PETITIONER: United Church of Northern India
Trust Association, having its
registered office at, 19, August Kranti
Marg, Mumbai4000007 through its
lawful Power of Attorney Mrs.
Rachana Singh, aged about 47 years,
Occ. Honorary Secretary, Nagpur
Diocesan Council and member of
U.C.N.I.T.A. R/o St. Ursula Girls High
School, Civil Lines, Nagpur44001.
VERSUS
RESPONDENTS : 1. Pradip Thomas Parmar, aged about
57 years, occu. Service R/o Chaparasi
Pura Chowk, Amravati.
2. Felex Maccwan aged about 70 years,
Occu. Retd.
Deleted 3. Smt. Caroline Thomas Parmar,
Both R/o St. Thomas Boy's Hostel
Compound, Sundarlal Chowk, Near
T.B. Hospital Camp, Amravati, Tah. &
Dist. Amravati.
Shri P. K. Sathianathan Advocate with Shri U. Phasate, Advocate for the
petitioner.
Shri A. C. Dharmadhikari, Advocate for the respondent No.1.
CORAM: A.S. CHANDURKAR, J.
th
DATED: 19 JULY, 2016.
ORAL JUDGMENT :
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1. Rule. Heard finally with the consent of the learned
Counsel for the parties.
2. The petitioner – original plaintiff is aggrieved by the
order dated 1012013 passed in Miscellaneous Civil Appeal
No.54/2012 whereby the said appeal preferred by the respondent
no.1 – defendant no.1 under provisions of order XLIII Rule 1(f) of
the Code of Civil Procedure, 1908 ( for short, the Code) has been
allowed and the suit filed by the petitioner has been dismissed
under provisions of Order XI Rule 21 of the Code.
3. The facts relevant for adjudication of the challenge
raised in the writ petition are that the petitioner is an Association
of Trusts of Northern India constituted under the Companies Act,
1913. It is also registered under the provisions of the Maharashtra
Public Trusts Act, 1950. The suit property consisting of a structure
on the land owned by the petitioner was in occupation of the
respondents. According to the petitioner, the said respondents had
no right to continue in occupation of the suit property and hence,
it filed Special Civil Suit No.103/2004 for ejectment of the
respondents and possession thereof. The respondents filed their
written statement opposing the prayers made in the suit.
According to the defendants, the plaintiff had no locus to file the
said suit and seek their eviction.
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4. The power of attorney holder filed his affidavit in lieu
of evidence on behalf of the petitioner. He was then cross
examined by the Counsel for the defendants. During the course of
crossexamination, he was questioned about certain documents
which according to the defendants had bearing on the adjudication
of the suit. Hence at that stage the defendants moved an
application on 10112010 under provisions of Order XI Rule 21
read with Rule 14 of the Code (Exhibit89). As per this application,
the defendants called upon the plaintiff to produce eight
documents which according to the defendants were necessary for
further crossexamination of the witness. The plaintiff filed its
reply to the aforesaid application on 1112011. According to the
plaintiff, the documents at Sr. Nos.1 and 2 alone were relevant
documents while the other documents were not relevant for
deciding the suit. On 272012, the power of attorney holder filed
his affidavit in Form No.5 under provisions of Order XI Rule 13 of
the Code. In the said affidavit, it was stated that a copy of the
memorandum of association was being filed on record. In so far as
the other documents were concerned, it was stated that the Head
Office of the Company had been asked to verify about the
possession of said documents and it was stated that the power of
attorney holder would communicate with the Head Office in that
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regard. On 2162012, the trial Court passed an order observing
that production of the documents as mentioned by the defendants
would be helpful in deciding the suit and hence, directed the
plaintiff to file the documents as mentioned at Sr. Nos.1 to 8
within period of fifteen days from the date of the order.
5. On 3072012, the defendant no.1 filed an application
seeking dismissal of the suit under provisions of Order XI Rule 21
of the Code (Exhibit99). In the said application, it was stated that
though the trial Court had passed an order on 2162012 directing
production of the said documents, a vague affidavit along with
some stray documents were filed on record. As the plaintiff
committed breach of the aforesaid order, it was prayed that the
suit be dismissed under provisions of Oder XI Rule 21 of the Code.
The plaintiff filed its reply (Exhibit100) and stated that all the
documents which were in its custody had been filed and as the
remaining documents were not available with the plaintiff, there
was no question of withholding the same from the Court. It was
stated that the order dated 2162012 had been complied with and
hence, the suit could not be dismissed. The trial Court by order
dated 2482012 held that in compliance with the order dated 21
62012, the plaintiff had filed those documents which were in its
custody. It observed that there was no specific statement made
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with regard to custody of the other documents and hence, the suit
was not liable to be dismissed under provisions of Order XI Rule
21 of the Code. The application was accordingly rejected.
6. The defendant no.1 being aggrieved by the aforesaid
order filed an appeal under provisions of Order XLIII Rule 1(f) of
the Code. In the memorandum of appeal, it was stated that except
documents at Sr. Nos.1,2 & 6, the other documents had not been
filed on record. It was stated that considering the breach
committed by the plaintiff the suit ought to have been dismissed.
The appellate Court after hearing the parties observed that the
power of attorney holder of the plaintiff had specifically admitted
during his crossexamination with regard to documents that were
in the custody, control and possession of the Company. The same
was not denied in the reply. While producing one of the
documents, the plaintiff had not denied about the possession of
the other documents. After relying upon the deposition of the
power of attorney holder examined on behalf of the plaintiff, the
appellate Court concluded that the plaintiff was in possession of all
the documents as sought. After holding that there was no affidavit
filed denying the possession and custody of these documents, the
appellate Court proceeded to hold that by disregarding the order
passed below Exhibit89, the suit was liable to be dismissed.
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Hence, by the order dated 1012013, the appellate Court
dismissed the suit under provisions of Order XI Rule 21 of the
Code and allowed the appeal. Being aggrieved, the plaintiff has
challenged the aforesaid order.
7. Shri P. K. Sathianathan, the learned Counsel for the
petitioner submitted that the appellate Court was not justified in
dismissing the suit of the plaintiff under provisions of Order XI
Rule 21 of the Code. According to him, in response to the
application moved by the defendants under provisions of Order XI
Rule 12 of the Code, the plaintiff had filed those documents on
record which were in its actual custody. According to him, the
documents at Sr. nos.1, 2 and 6 were placed on record. He
submitted that in the affidavit dated 272012 a specific statement
was made that the power of attorney holder of the plainiff was
having possession only of the Memorandum of Association and the
same was being filed on record. As regards other documents, the
matter was being verified with the Head Office. He submitted that
the said witness had undertaken to communicate with the Head
office and file such of the documents that were in its possession
and power. He, therefore, submitted that the trial Court found
that whatever documents were immediately available with the said
witness were filed on record and there was no attempt on the part
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of the plaintiff to disregard the order of the Court. According to
him, the appellate Court was not justified in proceeding on the
basis that despite having custody of the remaining documents, the
same were not filed on record. He submitted that the affidavit
dated 272012 filed by the power of attorney holder of the
plaintiff has been misconstrued and on that basis it has been held
that there was a wilful breach of the direction to produce the
documents. He, therefore, submitted that the drastic power of
dismissing the suit under provisions of Order XI Rule 21 of the
Code could not have been exercised by the appellate Court
especially when the trial Court found that the plaintiff had not
withheld the documents. In support of his submissions, the
learned Counsel placed reliance on the decision of the Hon'ble
Supreme Court in M.L. Sethi Vs. R. P. Kapur AIR 1972 Supreme
Court 2372 and the judgments of the Division Bench of this Court
in Municipal Commissioner for Greater Bombay and another vs. M/s
Sangam Cinema 1992 (2) Mh. L. J. 1403 and Board of Trustees of
the Port of Bombay Vs. UCO Bank, Singapore & Ors. 2009 (5) BCR
478 . He also referred to the judgment of learned Single judge in
Feroze Homi Duggan vs. Benzer Interiors pvt. Ltd. and others
2006(2) Mh.L.J. 289 .
8. The aforesaid submissions were opposed by Shri A. C.
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Dharmadhikari, the learned Counsel for the respondent no.1.
According to him, failure on the part of the plaintiff to produce the
documents pursuant to the order dated 2162012 despite having
custody of the same was rightly found by the appellate Court to be
wilful in nature and in breach of the said order. He submitted that
the plaintiff had not denied the custody or possession of the
documents in question. The appellate Court was, therefore,
justified in observing that as the custody of said documents could
be gathered to be with the plaintiff on the basis of the deposition
of its witness and the said documents were not produced, the suit
was rightly dismissed under provisions of Order XI Rule 21 of the
Code. The conduct of the plaintiff was such that it had
deliberately not produced documents on record despite having its
custody. It was submitted that the trial Court itself ought to have
dismissed the suit on aforesaid grounds, but it failed to do so. The
appellate Court was, therefore, justified in correcting the error
committed by the trial Court. According to the learned Counsel,
there was no case made out to interfere with the impugned order.
The learned Counsel in support of his submissions relied upon the
judgment of the Hon'ble Supreme Court in M/s Babbar Sewing
Machine Co. vs. Tirlok Nath Mahajan AIR 1978 Supreme Court
1436, Jai Singh and others vs. Municipal Corporation of Delhi
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(2010) 9 SCC 385 and Radhey Shyam and Anr. v. Chhabi Nath and
Ors. AIR 2015 SC 3269 . He, therefore, submitted that the
challenge to the impugned order did not deserve to be accepted.
9. I have heard respective Counsel for the parties at
length and I have given due consideration to their respective
submissions. Before considering the merits of the challenge to the
impugned order, it will be necessary to consider the scope of the
provisions of Order XI Rule 21 of the Code. It is one of those
provisions in the Code under which the suit filed by the plaintiff
can be dismissed for noncompliance or the defence of the
defendant can be struck out. The scope and matter in which
powers under Order XI Rule 21 of the Code have to be exercised
have been explained in M/s Babbar Sewing Machine Company
(supra) . Therein the Hon'ble Supreme Court has held that the
Court may exercise its discretion under Order XI Rule 21 of the
Code for dismissing the suit only when the default on the part of
the plaintiff is wilful and as a last resort. The party in question
should be guilty of such contumacious conduct or there should be
a wilful attempt to disregard the order of the Court which results
in the trial of the suit be arrested. It has been further observed
that the consequence of an order being passed under provisions of
Order XI Rule 21 of the Code is highly penal in nature and ought
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to be used only in extreme cases.
The expression 'wilful' in the context of disobedience of
an order has been held to be knowingly intentional, calculated and
deliberate. In Ram Kishan Vs. Tarun Bajaj (2014) 16 SCC 204 , the
Hon'ble Supreme Court in para 12 of its judgment observed thus:
“12.............................................................................
The word “wilful” introduces a mental element and
hence, requires looking into the mind of a
person/contemnor by gauging his actions, which is
an indication of one's state of mind. “Wilful” means
knowingly intentional, conscious, calculated and
deliberate with full knowledge of consequences
flowing therefrom. It excludes casual, accidental,
bona fide or unintentional acts or genuine inability.
Wilful acts does not encompass involuntarily or
negligent actions. The act has to be done with a
“bad purpose or without justifiable excuse or
stubbornly, obstinately or perversely” Wilful act is
to be distinguished from an act done carelessly,
thoughtlessly, heedlessly or inadvertently. It does
not include any act done negligently or
involuntarily. The deliberate conduct of a person
means that he knows what he is doing and intends
to do the same. Therefore, there has to be a
calculated action with evil motive on his
part.............................................”
In this backdrop therefore, if an order under provisions
of Order XI Rule 21 of the Code is to be passed after considering
the conduct of a party and only as a last resort, it automatically
follows that exercise of such power is directory in nature and not
mandatory to be exercised in each and every case.
10. In the light of aforesaid, the conduct of the plaintiff
would have to be examined to determine whether the dismissal of
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its suit under provisions of Order XI Rule 21 of the Code was
justified.
As noted above, the power of attorney holder on
behalf of the plaintiff had filed his affidavit in lieu of evidence on
record. He placed certain documents on record. When he was
being crossexamined, he stated that he had documentary evidence
to show that the plaintiff Company was holding plot No.3 in the
year 1940 and the document in that regard was in his custody
which could be produced. He also stated that he had documents
showing the measurement of the plot in question and regarding
permission to construct the Hostel. He further stated that the
plaintiff Company was maintaining the income and expenditure,
profit and loss and balancesheet, but he had not seen all the said
documents. While his crossexamination was yet to be completed,
the defendants moved an application under provisions of Order XI
Rule 12 read with Rule 14 of the Code. Production of eight
documents as mentioned therein were sought. In reply thereto, the
plaintiff expressed willingness to file on record documents at Sr.
Nos.1 and 2 which according to it were relevant. The trial Court,
however, on 2162012 directed the plaintiff to file all the eight
documents on record. The power of attorney holder then filed his
affidavit under Order 11 Rule 13 of the Code as per Form No.5
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and admitted possession of the document at Sr. No.1 in the list. As
regards other documents, it was stated that the Head Office had
been requested to verify about the possession of said documents
and he also undertook to communicate further in that regard with
the Head Office.
11. It is not in dispute that the documents at Sr. Nos.1,2 &
6 were placed on record by the plaintiff. These documents were
(I) Memorandum of Association of the plaintiff as a Private
Limited Company (ii) list of Directors of the Company,(iii) shares
held by them and (vi) document showing construction of the Boys
Hostel in the year 1980, its area, measurement and permission
from the Municipal Corporation. This fact can also be gathered
from para no.11 of the memorandum of appeal filed by the
defendant no.1.
If the deposition of the power of attorney holder is
perused, it can be seen that the said witness admitted that there
was documentary evidence to show that the Company was holding
plot no.3 in the year 1940. Reference to this document can be
seen in the list of properties mentioned in Schedule I of the public
trust register, an extract of which is at record page 96 of the writ
petition. This witness further admitted that he was having
documents to show the measurement of the suit property and the
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permission granted for its construction. In the list of documents
sought to be produced, these documents are at Sr. No.6 and the
same were duly produced on record. The aforesaid, therefore,
indicates that out of eight documents of which production was
sought, the documents at Sr. nos.1,2 & 6 were placed on record
while the details pertaining to the plaintiff's holding of plot no.3
was also found in Schedule I of the public trust register that was
placed on record. The aforesaid conduct clearly indicates that the
part of the order passed by the trial Court below Exhibit89 on 21
62012 was duly complied. The aforesaid conduct of the plaintiff
of complying with the part of the order does not give any
indication whatsoever that the plaintiff did not intend to produce
any of the eight documents of which production was sought. Out
of the same, three documents were filed on record and details
relating to the document at Sr. No.3 were also available on record.
This conduct of the plaintiff cannot be ignored while considering
the exercise of discretion under provisions of Order XI Rule 21 of
the Code.
12. The documents at Sr. Nos. 4 & 5 pertain to audited
accounts of the Company and the trust from the year 1996
onwards. In this regard, the witness stated that every Company
and trust is required to maintain such accounts and that the
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plaintiff was also maintaining income and expenditure account,
profit and loss account and balancesheet. He, however, stated
that he had not seen the said documents. In the context of this
statement of the witness in his deposition if the affidavit filed on
his behalf under provisions of Order XI Rule 13 of the Code is
seen, he has clearly stated that with regard to said documents, he
would have to verify with the Head Office about possession of said
documents and also undertook to communicate with the Head
Office in that regard. From the affidavit it is clear that the witness
who was deposing on behalf of the plaintiff had made attempts of
verifying whether said documents were in possession of the Head
office of the plaintiff. The statement in the affidavit that the Head
office had been requested to verify whether said documents were
in its possession cannot straight way lead to the inference that the
plaintiff despite having custody of the said documents had avoided
to produce the same. This conduct on the part of the plaintiff
cannot be viewed as being wilful and contumacious in these facts.
The appellate Court, however, in para 14 of its order
observed that as the power of attorney holder had made
communication with the Head Office and there was no response,
the same was sufficient to conclude that it was a wilful attempt to
disregard the order of the Court. The documents that were not
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placed on record were audited accounts of the Company and the
trust. The inference that has been drawn by the appellate Court
that nonproduction of said documents was wilful and said
inference has been drawn disregarding the earlier conduct of the
plaintiff.
13. As observed by the Hon'ble Supreme Court, the penalty
of dismissal of a suit under Order XI Rule 21 of the Code is to be
imposed only in extreme cases where there is obstinacy or
contumacy or a wilful attempt to disregard the order of the Court.
The same is only as a last resort. While considering whether the
conduct of the plaintiff was a wilful attempt to disregard the order
of the Court resulting the trial of the suit being arrested, the
overall conduct of the plaintiff would have to be seen. If out of
eight documents of which production was sought, three were
placed on record and the details about the fourth document could
be gathered from the other documents that were placed on record
coupled with the fact that the stand of verifying the availability of
two other documents was taken, this conduct viewed as a whole
can hardly be said to be of a wilful or contumacious nature with an
intent to breach the order of the Court. True it is that the plaintiff
could have placed on record the result of the efforts of its witness
of communicating with the Head Office. But failure to do so in the
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aforesaid background cannot be considered as a wilful attempt to
disregard the order of the Court.
14. In this background after finding that the plaintiff's
conduct is neither in wilful breach nor contumacious, dismissal of
the suit under Order XI Rule 21 of the Code would result in
travesty of justice. Once it is found that the extreme penalty of
dismissal of suit is not warranted under provisions of Order XI
Rule 21 of the Code, a case for interference is surely made out. As
observed in Estralla Rubber Vs. Dass Estate (P) Ltd.(2001) 8 SCC
97 , interference under Article 227 of the Constitution of India is
warranted whenever grave injustice is to be corrected. In the
present case, grave injustice of dismissal of the suit without trial
would remain uncorrected, if this Court does not interfere. The
reliance placed by the learned Counsel for the respondent no.1 on
the decision in Radhey Shyam (supra) would not further the case
of the respondent no.1 as it has been found that a case for
interference only under Article 227 of the Constitution of India is
made out. This correctional jurisdiction being exercised in the
present case is in exercise of supervisory jurisdiction to correct
grave injustice caused to the plaintiff on account of dismissal of its
suit. The same cannot be treated to be an exercise akin to a “bull
in a china shop” for correcting of errors of judgment of a Court as
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sought to be urged by the learned Counsel for the respondent no.1
by relying upon the judgment of the Hon'ble Supreme Court in Jai
Singh (supra) .
15. As a sequel to the aforesaid discussion, it will have to
be concluded that the dismissal of the suit under provisions of
Order XI Rule 21 of the Code was unwarranted. Accordingly, the
judgment of the appellate Court dated 1012013 in Misc. Civil
Application No.54/2012 is quashed and set aside. Special Civil
Suit No.103/2004 is restored. The suit shall proceed from the
stage of crossexamination of the plaintiff's witness. It would be
open for the defendants to urge before the trial Court for it to
draw adverse inference, if any, against the plaintiff in the facts of
the present case.
16. Rule is made absolute in aforesaid terms with no order
as to costs.
17. At this stage, the learned Counsel for the respondent
No.1 seeks stay of the aforesaid judgment for a period of eight
weeks. The said request is accepted. The trial in Regular Civil Suit
No.103/2004 shall commence after a period of eight weeks from
the date of this judgment.
JUDGE
//MULEY/ /
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