DINESH CHANDRA SOMANI,J. - (1.) This petition has been filed by defendant-petitioner Hindustan Petroleum Corporation Ltd. assailing the order passed by learned trial Court on 08.09.2015 on an application dated 16.09.2011 filed by the plaintiff-respondent under Order 11, Rule 21 of C.P.C.
(2.) Skeletal material facts necessary for the purpose of deciding this petition are that plaintiff-respondent has filed the suit against the defendant-petitioner for eviction and recovery of arrears of rent which is pending before the trial Court. During pendency of the suit plaintiff filed an application under Order 11, Rule 12 , 14, and 15 read with Section 151 of C.P.C. seeking production of the documents as mentioned in the said application which are allegedly in the power and possession of the defendant. The said application was resisted by defendant by filing a reply. The learned trial Court allowed the said application vide order dated 01.02.2011 and directed the defendant to produce the documents as sought for by the plaintiff. Thereafter the matter adjourned several times at the request of defendant's counsel for production of the said documents. On 16.09.2011., the plaintiff submitted an application before the trial Court under Order 11, Rule 21 of C.P.C. for striking out the defence of the defendant on the ground that the defendant has not complied with the order dated 01.02.2011. The defendant resisted the application by filing reply. The learned trial Court allowed the said application vide order dated 03.03.2012 and struck out the defence of defendant under Order 11, Rule 21 of C.P.C. The defendant challenged both the orders dated 01.02.2011 and 03.03.2012 by filing writ petition and civil misc. appeal respectively, which were decided by this Court on 29.01.2013 by a common order, setting aside both the orders and directed the trial Court to decide both the applications afresh in accordance with law. Thereafter, the plaintiff filed another application under Order 11, Rule 21 of C.P.C. on 10.05.2013. The defendant filed reply to that application. Later on the plaintiff withdrew the aforesaid application on 11.11.2013 and filed an another application under Order 11, Rule 12 of C.P.C. The defendant filed reply to the said application. Learned trial Court allowed the said application vide order dated 27.01.2014 and directed the defendant to disclose the documents which are in his possession and power, on an affidavit. In response thereof the defendant filed an affidavit on 21.02.2014. The learned trial Court allowed the plaintiff to file counter-affidavit in reply to the aforesaid affidavit of defendant, vide order dated 25.02.2014. The defendant then filed an application mentioning that counter-affidavit cannot be filed in rebuttal to the affidavit filed under Order 11, Rule 12 of C.P.C. In the meantime plaintiff filed counter-affidavit and pleaded that application of the defendant has become infructuous. Learned trial Court dismissed the defendant's application vide order dated 09.10.2014. The defendant assailed the aforesaid order dated 09.10.2014 by filing Writ Petition No. 997/2015. The said writ petition was allowed by this Court on 04.02.2015 holding that no further counter-affidavit could either be directed to be filed by the plaintiff or permitted to be taken on record and set aside the order dated 09.10.2014. Thereafter, learned trial Court heard arguments on the application filed by the plaintiff under Order 11, Rule 21 of C.P.C. filed on 16.09.2011 and allowed the aforesaid application vide impugned order and struck out the defence of the defendant-petitioner. The said order is under challenge in the instant writ petition.
(3.) Mr. S. Kasliwal learned senior counsel for the petitioner has submitted that learned trial Court has erred in ignoring the affidavit filed by the defendant-petitioner in which it was categorically stated as to which of the documents are in its actual power and possession and directed to produce the documents on record which are not in its power and possession. Learned senior counsel also submitted that learned trial Court has erred in striking out the defence of the defendant on the ground that the defendant has failed to produce documents in accordance with order dated 01.02.2011, whereas the said order has already been set aside by this Hon'ble Court vide order dated 29.01.2013. Learned trial Court has seriously erred in striking out defence of the defendant-petitioner under Order 11, Rule 21 of C.P.C., whereas the defendant has already been filed affidavit on 21.02.2014 disclosing as to which documents are in its power and possession, as such the defendant made full compliance of Order 11, Rule 12 of C.P.C. thus, defence could not be struck out by the learned trial Court for non-compliance of order of discovery of documents under Order 11, Rule 21 of C.P.C. Learned senior counsel further submitted that the order of production of documents can be passed by the Court under Rule 14 and not under Rule 12, and non-compliance of order of production of the documents is not covered under Rule 21. As such the learned trial Court has completely ignored the legal position and struck out the defence of the defendant.;