Bela M. Trivedi, J. - (1.) THIS common judgment is being passed for disposing of the Civil Writ Petition No. 4210/2011 as well as the Civil Misc. Appeal No. 2045/2012, which are inter -connected with each other and arises out of the proceedings in the same suit. The S.B. Civil Writ Petition No. 4210/2011 has been filed by the petitioner -defendant challenging the order dt. 01.02.2011 passed by the Additional District & Sessions Judge (Fast Track) No. 9, Jaipur City, Jaipur (hereinafter referred to as 'the trial Court') in Civil Suit No. 19/2007 (207/2002), whereby the trial Court has allowed the application of the respondent No. 1 -plaintiff filed under Order XI Rule 12, 14 & 15 read with Section 151 of C.P.C. The C.M.A. No. 2045/2012 has been filed by the same appellant -defendant challenging the order dt. 03.03.2012 passed by the trial Court in the said suit, whereby the trial Court has allowed the application of the respondent No. 1 -plaintiff for striking out the defence of the appellant -defendant under Order XI Rule 21 read with Section 151 of C.P.C.
(2.) THE chronology of events necessary for the purpose of deciding these two matters is that the respondent -plaintiff has filed the suit against the petitioner -defendant for eviction and for recovery of arrears of rent, and the said suit is pending before the trial Court. During pendency of the suit, the plaintiff filed an application under Order XI Rule 12, 14 & 15 read with Section 151 of C.P.C. seeking production of the documents as mentioned in the said application, which were allegedly in the power and possession of the defendant. The said application of the plaintiff was resisted by the defendant by filing a reply. The trial Court vide the order dt. 01.02.2011 allowed the said application of the plaintiff and directed the defendant to produce the documents as sought for by the plaintiff. The said order is under challenge in the writ petition No. 4210/2011. It appears that thereafter the matter was adjourned from time to time at the request of the learned counsel for the petitioner -defendant for production of the said documents. On 16.09.2011, the respondent -plaintiff submitted an application before the trial Court for striking out the defence of the appellant -defendant under Order XI Rule 21 on the ground that the order dt. 01.02.2011 passed by the trial Court was not complied with by the defendant. The said application was also resisted by the appellant -defendant by filing a reply on 14.11.2011. The trial Court vide the order dt. 03.03.2012 allowed the said application of the plaintiff and struck out the defence of the defendant under Order XI Rule 21 of C.P.C. The said order is under challenge in the Civil Misc. Appeal No. 2045/2012. In the first limb of her arguments, Ms. Sukriti Kasliwal submitted that in the application filed by the respondent -plaintiff, under Rule -12, 14 & 15 of Order XI, no discovery of documents was sought, and what was sought was production of documents allegedly in possession of the petitioner -defendant. According to her, the trial Court also without passing any order for the discovery of the documents under the said Rule 12, , had straightway directed the defendant to produce the documents as sought by the plaintiff, which order as such was not sustainable in the eye of law. She further submitted that though the said order of trial Court directing production of the documents was under challenge before this Court by way of writ petition, the trial Court further allowed the application of the plaintiff for striking out the defence of the defendant, on the ground of non -compliance of the order dt. 01.02.2011. According to her, the subsequent order striking out the defence of the defendant also suffers from gross illegality in as much as the defence of the defendant could be struck out under Order XI, Rule 21 only if the defendant had failed to comply with the order of the trial Court to answer the interrogatories or for discovery or inspection of the documents. The order dt. 01.02.2011 passed by the trial Court being not for discovery of documents, and only for production of the documents, the said provision contained in Rule 21 could not be made applicable for striking out the defence of the petitioner -defendant. Pressing into services the provisions contained in Section 114, illustration (g) of the Evidence Act, Ms. Kasliwal submitted that at the most adverse inference could be drawn against the defendant for non production of the relevant documents or withholding the material evidence but under no circumstances the defence could be struck out for non -production of the documents under the said Rule 21. Ms. Kasliwal has relied upon the decision of the Apex Court in the case of Union of India vs. Ibrahim Uddin & Anr., : (2012) 8 SCC 148; the decision of the Andhra Pradesh High Court in the case of R. Ganga Reddy vs. P. Raghunatha Reddy, : A.I.R. 1978 AP 457; as also the decision of this Court in the case of Amarsingh vs. Chaturbhuj & Ors.,, A.I.R., 1957, Raj 367, in support of her submissions.
(3.) ON the other hand, the learned Senior Counsel Mr. G.K. Garg, for the respondent -plaintiff submitted that in view of the subsequent order dt. 03.03.2012 passed by the trial Court striking out the defence of the petitioner -defendant, the writ petition challenging the order dt. 01.02.2011 had become infructuous. Learned counsel drawing the attention of this Court to the copies of order sheets drawn by the trial Court, submitted that the petitioner -defendant had sought adjournments from time to time to produce the documents after the passing of the order dt. 01.02.2011, and since the said order was not complied with by the defendant and since an inordinate delay had taken place causing great prejudice to the case of the respondent -plaintiff, the trial Court had rightly struck out the defence of the petitioner -defendant under Order XI Rule 21 vide the order dt. 03.03.2012. Mr. Garg, has fairly submitted that the trial Court had not passed any specific order for the discovery of documents, and had passed the order dt. 01.02.2011 for production of documents only in view of the application made by the plaintiff under Rule 12, 14 & 15 of Order XI read with Section 151 of C.P.C. According to him, the order of production of documents contemplated the discovery of documents also, and therefore, non -compliance of such order would entail striking out of the defence under Rule 21, and even otherwise the trial Court could have exercised its inherent powers contained in Section 151 of C.P.C. to strike out the defence of the defendant in the interest of justice and to prevent the abuse of process of Court. The learned counsel has relied upon the decision of the Apex Court in the case of Basanagouda vs. Dr. S.B. Amarkhed & Ors; : (1992) 2 SCC 612 and the decisions of Delhi High Court in the case of S.M.S. Udyog ltd. vs. Flistex Magnetics Ltd., : 103 (2003) DLT 42 and in the case of M/s. Narosa Publishing House vs. Jagbir Singh, : A.I.R. 2000 Delhi 330, to buttress his submissions that the defence could be struck off for non -compliance of the order passed by the Court to prevent the abuse of process of Court.;