1. The trial Court of the Assistant Collector purported to dismiss a suit for the recovery of arrears of rent under the provisions of Order XI, Rule 21. The suit was undefended but the Court directed the plaintiff to produce his account-books. This order was presumably passed under the provisions of Rule 14, which makes it lawful for a Court at any time during the pendency of any suit to order the production by any party thereto upon oath of such of the documents in his possession as the Court shall think right. There was no application by the defendants that the account-books were wanted for inspection. Apart from other reasons which I shall state presently the order of the Assistant Collector was beyond his jurisdiction because the provisions of Rule 21 imply action to be taken by a defendant. The penalty is not imposed on disobedience of an order of a Court because the penalty follows on the party who seeks this remedy applying to the Court for an order to dismiss a suit or to strike out a defence. Here the defendant being absent there was no party to claim the privilege of the penalty and under the rule it is my opinion that a Court cannot act on its own motion.
2. The second reason why I consider the order of the Assistant Collector to be without jurisdiction is that the penalty does not attach to an order for the production of documents. This follows from what I have already stated. The penalty does not arise from any action of the Court but arises from an action of a party. Under Rule 14 the Court is permitted to order production and on failure of such production there is no penalty because Rule 21 does not permit of a penalty on the motion of the Court. It is only where a party makes application and fails to obtain the evidence which it seeks from the opposite party that the penalty of Rule 21 follows. There is thus a very clear distinction between Rule 14 and Rules 6 to 8, 12 and 15. Rules 6 to 8, 12 and 15 apply to parties who have been given the right to move for serving of interrogatories, for discovery of documents and for inspection thereof as regards matter within the knowledge of the other party and documents within the control of the other party. Rule 21 does not apply without a party making a motion and, therefore, no penalty can attach to Rule 14 because under that rule the Court acts of itself and not on the motion of a party. There is a recent judgment of a Bench of two Judges of the Madras High Court in which it was held that Order XI, Rule 21 of the Code of Civil Procedure did not justify the dismissal of a suit for non-compliance with an order under Order XI, Rule 14 of the Civil Procedure Code for production of documents [Sithamalli Subayyer v. Ramanathan Chettiar 77 Ind. Cas. 766 : 48 M.L.J. 350 : 19 L.W. 355; (1924) M.W.N. 340 : A.I.R. 1924 Mad. 582.]
3. The point has arisen in second appeal because the lower Appellate Court rejected the appeal of the plaintiff on the ground that no appeal lay from a dismissal of a suit under Order XI, Rule 21. The order of the trial Court, however, was not one passed under that rule and the suit must be considered to have been dismissed on the merits and such a dismissal would be a decree and appealable.
4. I set aside the decree of the District Judge dated the 9th of August, 1926, and remand the first appeal to that Court for a trial according to law Costs here and hitherto shall abide the result.