Madhya Pradesh High Court
Smt. Anita Mansukhani vs Shri Vishnukumar on 5 October, 2023
Author: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
MISC. APPEAL No. 6028 of 2023
BETWEEN:-
SMT. ANITA MANSUKHANI W/O SHRI JAGDISH
MANSUKHANI, AGED ABOUT 58 YEARS,
OCCUPATION: BUSINESS R/O 17 JOY BUILDERS
COLONY INDORE (MADHYA PRADESH)
.....APPELLANT
(SHRI UPENDRA KUMAR CHOUKSE, LEARNED COUNSEL FOR THE
APPELLANT)
AND
SHRI VISHNUKUMAR S/O LATE RAMNIWAS
1.
BHAIYA, AGED ABOUT 67 YEARS,
OCCUPATION: BUSINESS R/O 505 M.G. ROAD
INDORE (MADHYA PRADESH)
M/S MAN INDUSTRIES INDIA LIMITED MAN
2.
HOUSE 15-PU SCHEME NO. 54 AB ROAD INDORE
(MADHYA PRADESH)
3. TEHSILDAR TEHSIL AND DISTRICT INDORE
(MADHYA PRADESH)
4. STATE OF MADHYA PRADESH THROUGH
COLLECTOR INDORE (MADHYA PRADESH)
.....RESPONDENTS
(SHRI VISHAL BAHETI, LEARNED COUNSEL FOR RESPONDENT NO.1 ON
CAVEAT).
( SHRI MAYANK MISHRA, LEARNED PANEL LAWYER FOR RESPONDENTS
NO.3 AND 4).
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 05-10-2023
17:37:24
2
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Reserved on : 04.10.2023.
Pronounced on : 05.10.2023
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This miscellaneous appeal having been heard and reserved for
orders, coming on for pronouncement this day, Justice Achal Kumar
Paliwal pronounced the following
ORDER
This appeal under Order 43 Rule 1(F) of the Code of Civil
Procedure has been filed by the petitioner being aggrieved by the order
dated 11.09.2023 passed by the learned XXIX District Judge, Indore in
Civil Suit No.21A/2013 whereby the application filed by the
respondent/plaintiff under Order 11 Rule 21 of CPC has been allowed
and the defence of the appellant/defendant no.2 has been struck off.
2. The brief facts relevant for disposal of the present appeal are that
basically present appeal relates to production of original sale deed by
the appellant/defendant. On 11.08.2016 plaintiff filed an application
under Order 11 Rule 12 of CPC which was allowed by the Court on
13.01.2017 and directed the defendant no.2 to produce the original sale
deed and some other documents. In response, defendant no.2 filed an
affidavit on 06.02.2017 stating that only the document dated
24.04.2003 is available with defendant no.2 and rest of the documents
are not in possession of defendant no.2. Thereafter, the plaintiff filed
an application under Order 11 Rule 21 of CPC which was dismissed
vide order dated 13.07.2017 on the ground that there is no basis to
show that defendant no.2 has not complied with the order knowingly.
3. Again plaintiff filed an application for production of these
documents on 25.09.2018 under Order 11 Rule 12 of CPC and it was
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 05-10-2023
17:37:24
allowed by the Court whereupon defendant no.2 filed an affidavit on
13.12.2018 to the effect that presently documents are not available in
the house. Previously on 20.03.2017, they were in her possession but
presently they are missing, therefore, she is unable to produce the same
in the Court. Thereafter, defendant no.2 during her cross examination
on 06.07.2023 admitted that she has sale deed of the land and it is kept
in her house and she can produce the same. On 22.08.2023, this
witness stated in the Court that the original copy of the sale deed is not
available despite being searched and thereafter, plaintiff again filed an
application under Order 11 Rule 21 of CPC and in reply thereof,
alongwith the affidavit, defendant no.2 stated that she has extensively
searched the original sale deed in the house, but it is not available.
Whenever she finds it, she will produce it in the Court. In above
factual backdrop, the learned trial Court vide impugned order dated
11.09.2023 allowed the application filed by the plaintiff under Order
11 Rule 21 of CPC and defence of defendant no.2 was struck off.
Being aggrieved by the impugned order, the present appeal has been
filed.
4. Learned counsel for the appellant after referring to the provisions
of Order 11 Rule 12, 14 and 21 of the CPC and also relying upon the
judgments in the case Archdiocese of Bhopal Regd.Soceity Vs.
Hasan Kabir reported in ILR (2009) MP 3351, Manohar Vs.
Premkali reported in 2014(2)RCR(Rent)385, Durgesh Singh and
others Vs. Narendra Kante 2017 (4) MPLJ 422 submits that if an
order passed under Order 11 Rule 14 of CPC is not complied with,
then, defence cannot be struck off under Order 11 Rule 21 of CPC,
only adverse inference, if any, can be drawn. It is also urged by the
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Signed by: REENA JOSEPH
Signing time: 05-10-2023
17:37:24
appellant that in the instant case respondent/plaintiff has not filed any
application under Order 11 Rule 12, 14 of CPC and trial Court has
directed to produce original sale deed only on the basis of some
admission made by the defendant no.2 (DW-1) in her cross
examination. Therefore, appellant's defence cannot be struck off under
Order 11 Rule 21 of CPC. On the above grounds, it is submitted that
the impugned order, being illegal, be set aside.
5. Learned counsel for the respondent/plaintiff after referring to the
order dated 13.01.2017,25.09.2018 and the affidavits filed by the
appellant/defendant has submitted that the learned trial Court has
rightly struck off the defence of the appellant/defendant. There is no
illegality in the impugned order. There was no contention of the
appellant before the trial Court that no order under Order 11 Rule 12 of
CPC was passed, therefore, defence under Order 11 Rule 21 of CPC
cannot be struck off. It is also urged that defendant had taken
contradictory stand in various affidavits filed by the defendant before
the trial Court and it is apparent that defendant has not filed original
sale deed deliberately. It is further submitted that as there is no legality
in the impugned order, appeal be dismissed.
6. I have heard the learned counsel for the parties at length and
perused the case minutely.
7. So far as the legal position and principles with respect to Order
11 Rule 12, 14 and 21 of CPC are concerned, perusal of the provisions
of the same and judgments relied upon by the learned counsel for the
appellant and submissions made by learned counsel for the parties, it is
apparent that it is not in dispute that whenever an order under Order 11
Rule 12 of CPC is passed and if such order is not complied with, then,
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Signed by: REENA JOSEPH
Signing time: 05-10-2023
17:37:24
defence of the defendant can be struck off under Order 11 Rule 21 of
CPC, but whenever an order under Order 11 Rule 14 of CPC is passed,
defence of the defendant cannot be struck off under Order 11 Rule 21
of the CPC. In this situation, only, if the defendant does not file a
document as ordered by the Court under Order 11 Rule 14 of CPC,
then, the trial Court is at liberty to draw adverse inference against the
defendant at appropriate stage.
8. Hence, the sole question before this Court is whether in the facts
and circumstances of the case, defence of the appellant has been rightly
struck off. From perusal of the facts referred in the preceding paras, it
is apparent that in connection with respondent/plaintiff's application
under Order 11 Rule 12 of CPC, which was disposed off vide order
dated 13.01.2017, an application under Order 11 Rule 12 of CPC, was
also filed by him which was rejected by order dated 13.07.2017. Later
on, respondent/plaintiff again filed an application under Order 11 Rule
12 of CPC on 25.09.2018 which was allowed and appellant was
directed to file an affidavit as per Appendix C(5) which was filed by
the defendant and no application under Order 11 Rule 21 of CPC was
filed by the respondent/plaintiff in respect of application dated
25.09.2018.
9. Perusal of the case reveals that it is with reference to
appellant/defendant's admission in her cross-examination on
06.07.2023 that she was again directed by the trial Court to produce the
original sale deed and it is apparent that when this time Court directed
appellant to produce the original sale deed, there was no application
filed by respondent/plaintiff either under Order 11 Rule 12 or 14 of
CPC. Thus, it is evident from the impugned order that on 06.07.2023,
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Signed by: REENA JOSEPH
Signing time: 05-10-2023
17:37:24
the learned trial Court has not directed the appellant to file any
affidavit as per Appendix C(5), only appellant was directed to produce
the original sale deed. Therefore, in view of above, appellant's defence
cannot be struck off under Order 11 Rule 21 of CPC on the ground of
previous order dated 13.07.2017/25.09.2018.
10. In view of aforesaid legal and factual position, I am of the
considered opinion that learned trial Court has clearly committed
material illegality in striking off the defence of appellant/defendant by
allowing the application filed by respondent/plaintiff under Order 11
Rule 21 of CPC. In the instant case, provisions under Order 11 Rule 21
of CPC are not applicable at all and appellant's defence cannot be
struck off under Order 11 Rule 21 of CPC.
11. Accordingly, the miscellaneous appeal is allowed. The impugned
order dated 11.09.2023 passed by the learned trial Court in RCS
No.21A/2013 is set aside.
12. Miscellaneous Appeal is accordingly disposed off.
(ACHAL KUMAR PALIWAL)
JUDGE
RJ
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 05-10-2023
17:37:24
