1 SB Civil Writ Petition No.2639/2009 Devi Chand & Anr. vs. LR's of Bhurmal & Ors. S.B. Civil Writ Petition No.2639/2009 Devi Chand and another. vs. LR's of Bhurmal and others. Date : 30.3.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.CS Kotwani, for the petitioners. - - - - - Heard learned counsel for the petitioners. The petitioners' application filed under Order 11 Rules 12 & 14 CPC was allowed by the trial court vide order dated 28.3.2008 and the file of case no.191/86-87-88 was summoned. Substantially this order is not direction to the other party to produce the file but the Court decided to summon the file. The defendant no.3 from whose office the file was summoned, informed the trial court vide applications dated 11.7.2008 and 29.8.2008 that the said file is not traceable. 2 SB Civil Writ Petition No.2639/2009 Devi Chand & Anr. vs. LR's of Bhurmal & Ors. The petitioners/defendants no.1 and 2 then submitted an application on 19.12.2008 and prayed that since the summoned file has not been produced by the defendant no.3, therefore, the defendant no.3's defence to suit may be struck off. This application of the defendants no.1 and 2 filed against the defendant no.3 was disposed of by the trial court vide order dated 19.12.2008 after observing that since the file summoned was not traceable, therefore, the defendants no.1 and 2 will be free to take legal steps. It will be worthwhile to mention here that before the defendants no.1 and 2 submitted application on 19.12.2008, the trial court has already on 29.8.2008 ordered that since the summoned file has not been received, therefore, the case be fixed for the plaintiff's evidence. The defendants no.1 and 2 in fact sought relief against the order dated 29.8.2008 by moving application on 19.12.2008 after more than three months which was rejected by the trial court. There is distinction between the direction to other party to produce the document and in failing, there are serious legal consequences. The 3 SB Civil Writ Petition No.2639/2009 Devi Chand & Anr. vs. LR's of Bhurmal & Ors. trial court on 28.3.2008 instead of directing the defendant no.3, itself decided to summon the file which is apparent from the order dated 28.3.2008. Therefore, this order was not an order directing the defendant no.3 to produce the file. In view of the above reason, if the trial court has disposed of the application of the petitioners after observing that the petitioners will be free to take legal steps but the case will proceed with the plaintiff's evidence and onwards, I do not find any reason that the trial court has committed any illegality. It is not necessary in each and every case that when the document is subsequently not found, then the trial court should strike off the defence of the defendant. The trial court after taking into consideration the entire facts and material available on the record, can pass appropriate order while deciding the suit including the order to draw adverse inference, if it is necessary to draw adverse inference against the defaulting party. In view of the above reasons and in the 4 SB Civil Writ Petition No.2639/2009 Devi Chand & Anr. vs. LR's of Bhurmal & Ors. totality of facts, there is no reason to interfere in the impugned order passed by the court below. Consequently, the writ petition of the petitioner is hereby dismissed. (PRAKASH TATIA), J. S.Phophaliya