0108ao102.11.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. APPEAL AGAINST ORDER NO.102 OF 2011 Shri Dal Bahadur Mall (D.B.Mall) VERSUS Shri Rajesh s/o Ganesh Baisware ................................................................ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ................................................................ Shri P.S.Sadawarte, Counsel for the Appellant/defendant. CORAM : R. K.DESHPANDE, J. DATE : 01. AUGUST, 2011. This appeal against order challenges the order dated 22.6.2011 passed by the learned 2nd Joint Civil Judge, Senior Division, Nagpur, rejecting the application (Exh.119) under Order 11 Rule 21 of the Code of Civil Procedure, filed by the defendant in Summary Civil Suit No.27 of 2004. The complaint in the application .....2/- 0108ao102.11.odt 2 (Exh.119) made by the appellant/defendant was that the Court had passed an order below Exh.114 on 4.3.2011 directing the plaintiff to produce the documents specified therein. However, the plaintiff had failed to produce those documents and hence, as per the provisions of Order 11 Rule 21 of the Code of Civil Procedure, the suit is liable to be dismissed. The Trial Court has recorded the finding that the plaintiff has produced the documents along with Pursis at Exh.117. The finding is recorded that all the documents except the document at Sr.No.3, have been produced. The further finding is recorded that even the defendant can produce the said documents to substantiate his defence. It has further held that the Order 11 Rule 21 of the Code of Civil Procedure, are not applicable and what is the effect of non- production of these documents, will be .....3/- 0108ao102.11.odt 3 considered at the time of final hearing or while deciding the suit on merits. The contention of Shri P.S.Sadawarte, the learned Counsel appearing for the appellant, is that the Trial Court has wrongly held that all the documents except the document at Sr.No.3, have been produced along with Pursis at Exh.117. He further submits that the requirement of Order 11 Rule 21 of the Code of Civil Procedure, is mandatory and the non-compliance of the order passed by the Court below (Exh.114), should necessarily result in dismissal of the suit. He further submits that the document which are not produced, are necessary for substantiating the defence raised by the appellant/defendant. In view of the finding recorded by the Trial Court in the order impugned, it is not necessary for this Court to consider .....4/- 0108ao102.11.odt 4 the contentions raised by the learned Counsel appearing for the appellant/ defendant at this stage. The Trial Court has observed that the matter is fixed for evidence. In view of this, if at all the ultimate decision of the Trial Court goes against the appellant/defendant, then it will be open for the appellant/defendant to challenge the order impugned in this appeal by approaching the Appellate Court or by adopting such other remedies as are available in law. In view of this, the appeal is dismissed. JUDGE BrWankhede ...../-