1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2246 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 2246 OF 2011 *** 1. Heard. 2. At the stage of final arguments, after recording of evidence, Respondent/ plaintiff preferred an application under Order XI Rule 12 and 14 of C.P.Code for production of certain documents. Petitioner/ defendant produced some of the documents and did not produce 7 documents which are mentioned by trial Court in paragraph 4 of the impugned order. Petitioner came up with defence that those documents are misplaced. Respondent/ plaintiff did not accept this explanation and, therefore, sought leave to cross examine the petitioner/ defendant. The trial Court accepted that request by placing reliance upon various judgments mentioned in paragraph and found it necessary to grant that permission to the respondent/ plaintiff. The judgment relied upon by the petitioner in the 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2246 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. case of"Smt. Sudha & anr. V/s Manmohan and ors." reported in AIR 1996 Rajasthan 59 was found to be not applicable.' 3. Before this Court, reliance is being placed upon judgment of this Court in the case of "Kamleshsingh Harnamsingh Chowhn V/s Jayalaxmi Kantilal" reported in 2009 (Supp.) Bom. C. R. 814. There, learned Single Judge of this Court found that documents enumerated in notice under Order XI Rule 14 of C.P.C. were not forming part of pleadings and the rent book or counterfoils had no relevance insofar as question of title to suit property was concerned. It was found that inquiry was fishing inquiry to lengthen litigation and also to pave way for unnecessary and irrelevant cross examination. It also noted that there was no explanation as to why the Respondent could not seek inspection of those documents under Order XI Rule 18 (2) C.P.C. In view of these findings interference in 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2246 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. jurisdiction under Article 227 was sought necessitated. The petitioner before this Court there was landlord and Respondent was tenant in proceedings before the Small Cause Court. 4. In the case of "Board of Trustees of the Port of Bombay V/s UCO Bank, Singapore and others" reported in 2009 (5) Bom. C. R. 478 Division Bench of this Court found that suit came to be dismissed for non-compliance with orders for discovery of documents. The petitioner/ plaintiff had referred to those documents and based on that, an order for discovery was passed. Petitioner/ plaintiff contended that documents were not in their possession. The learned Single Judge of this Court did not accept that statement and dismissed suit in view of Order XI Rule 21 C.P.Code. The Division Bench noticed that the fact that referred documents were not in possession was not stated in affidavit before 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2246 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. learned Single Judge. Division Bench then noticed that in all probability those documents were not in possession of Appellant and they failed to point out this to the learned Single Judge. The explanation furnished by appellant was taken note of in the appeal by Division Bench and Division Bench found that powers to dismiss under Order XI Rule 21 C.P.C. cannot be exercised lightly and could have been resorted only in extreme cases of obstinacy or contumacy or willful attempt to disregard the orders. 5. It is apparent that appellant/ plaintiff was relying upon those documents and, therefore, was not to gain anything by suppressing the same. The order of dismissal of the suit was, therefore, found unwarranted by Division Bench. 6. It is, therefore, clear that on facts the view taken by learned Single Judge or by Division Bench of this Court is not attracted 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2246 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. here. The judgments do not lay down that in circumstances like this, trial Court cannot permit the plaintiff to cross examine petitioner/ defendant. Petitioner/ defendant who has filed affidavit and claimed that documents are misplaced can very well stand up in witness box and substantiate his own case. I do not see any jurisdictional error or perversity. Petition is rejected. [B.P.DHARMADHIKARI, J.] Dated:08/04/2011. ans/2246