WM mm: a If” / e /£‘, \QOI '7) IN THE HIGH COURT OF IUDICATURE OF CHHATTISGARH AT BILASPUR WRIT PETITION N0. Emg /2005 PETITIONER ' — Q6 i M/s P003a Flour M1113(Pvt ) Llmlted w/ Nand Through Klshore # Proprletor Agrawal @l gbom; 3jk‘em) S/o~ Late Piramal Agrawal Ramsagarpara Raipur (C. G. ) t‘ Q” Q‘ g VERSUS §§ / 1‘ Food Corporation of India (A constituted body under Food Corporation of India Act under 1964), Head Office- 16-20 Barah Khambha Lane (New Delhi) Regional Office, Through District Manager District: - Raipur (C.G.) WRIT PETITION UNDER ARTICLE 226/227 OF THE a CONSTITUTION OF INDIA. / M XI-HC-22 EW,W,W Shxi Y.C. Shanna, counsel for the petitioner. Heard. The petitioner has prefaned this pctiu'on under Article 227 of the Constitution of India estioning the legality, propriety and correctness of order damd’16 3.2005 passed by learned 3rd Additional District Judge, Rajpur in C Suit No.43] 2002 whereby the learned Additional District Judge, h s closed the right of defence of the petitioner herein. i Bmif facts leading tiling of this petition are that the suit against the petitioner herein for Iecovery of Rs.4,79,301.75 p 'se. During the pendency ofcivil suit the respondent herein filed an a lication under Order 11 Rule 14 of the CFC for production of docum nts i.e. Release Order No.007548 dated. 17.11.1999 8a Release Order 0,007554 dated 18.11.1999. However, the petitioner failed to p e the said release orders inspife of Court’s order on this applica 'on, upon which the respondent herein er Order 11 Rule '21 of the CPCon account of non—complaince o the order for production of documents. In reply of the same, the peti ‘oner herein admitted the fact that these two release orders were han ed over to him but even after making eEorts to trace out these 0rd rs same are not available with him and an a$davit to that effect wa also tiled by the petitioner herein. But the learned court below pas d the impugned order that since the th the Court’s order and has simply stated that documents are 0t traceable, which is not a su§cient respondent herein med a c t again tiled an application petitioner has not complied u i i ‘ m c d i Wm“wf..;.1szxa1szy H1 200 mu: r Wm mm WE1%H Wmmm -$rafathqtrma3f§mm %3T%H3H%¥T ‘ 17.8-2005 XI—HC-22 HW,W,W mm ground, therefore, the dgfence of the peh'tioner is smck out under the ‘ provisions of Rule 21 of Order 11 of the CFC. I have heard leamsd CO Mr. Shérma argued tha there is no finding of the court below that the petiu'oner herein has eliberately or willfully failed to comply with’the Court’s order and 't'hout which the Court below was not justihed in passing the impugx the whole defence 0f the petiw now he will not'be able to defel automatlc decree of smt and rehance on the deCLsmn of M F Appeal No.186l69 between has held that since the provis: tons of Order 11 Rule 21 being penal in the Court should not impose penalty for an order under this Rule: sel for the petitioner. ted order, which is g penal in nature, as ioner herein has been struck out and 1d his case properly’ which will result in m support of his argument he placed High Court passed in the Misc. (First) Raghunandan Sing}: Vs. Municiyal Council, Dhamtari dated 11.8.1973 in which the M.P.' High Court their natuie must be construed strictly. Even where the parties apply except in extreme cases and on a last resort. The plaintih’s failure to comply with an order for discovery does not automatically entitle the ’ defendant to order the dismissal of suit under Order 1 1 Rule 2} of the CPC. It is Hue that the conse quenees of order passed under Rule 21 of Order 1 1, are penal in nature and if the defence is struck out, as has been done in the plesent case, the only consequence Will he that the petitioner hemm will not be mspondent herein in a pmper judgment of MP. High Court that these powers should be exemised in able to defend the suit hled by the manner. As has been held in the above Wm wp§£€a.3.l§.> In 200 m snixwr mm mw WWW v , 2r " mm§mm %a%wm XI-HC—78 W§3103M m amia; E200 311%:1 nails (W3) amanésrm metasriéaim . ' ‘ Ewmnagaaam ‘4}. WW#%W aiwmer » e e cases an as a s reaoE, EEerefore, 1n fEe ESE ms@ce, the m‘al Court was requimd to as from the facts or draw an infcrence ’&‘om the facts that as to whe er the petitioner herein has failed to comply with the Comt’s order eliberately or willfully. The trial Comt has not recorded his hnding to this eEect in the impugned order, therefore, the order impugned i not in conformity with the requirement of Rule 21 of Order 1 1 of the C C and same is liable to be quashed. In this connection, it is levant to mention that in such cases the Court is entitled to draw an ad rse inference under Section 1 14(g) read with Section 103 of the Eviden e Act to the eEect that the petitioner has being unfavourable to the petitioner it, and for this View I am supported by the judgment of the Hon'ble‘ Apex Court in the matter of Gopal Krishanji Ketkar V Mohammed Haji Latif and others reported in AIR 1968 Supreme Court 1413. Therefore, Without issuhg noh‘ce to the respondent the order impugned is set aside for the reasons mentioned above and the trial Court is directed to consider the application ahesh in the light of above observaiions and decide the same after hearing both the parties. However, liberty is given to the respondent to approach this Court if he feels aggrieved by this order. A With the direction and observation aforesaid, the petition stands disposed of. > Certifried copy as per rules. not produced that document and that is why he has withh Sd/- L.C.Bhadoo i Judge Roshan/ - c e s o