1. The plaintiff appeals from an order expressly made by the learned Subordinate Judge of Cochin under Order 11, Rule 21, Sch. 1, Civil P.C., dismissing his suit for want of prosecution on the ground that the plaintiff had contumaciously refused to produce certain documents which he had been ordered to produce. From the terms of the Judge's order as well as from the previous orders for production which are on the record, there is no doubt that those orders were passed under Order 11, Rule 14 and that respondent-defendant 1 applied for orders under that provision. This being so, it would be enough to dispose of this appeal to say that the learned Judge had no authority to dismiss the plaintiff's suit for disobedience of an order under Order 11, Rule 14. That was decided so far as this Court is concerned in Subbayyar v. Ramanathan Chettiar AIR 1924 Mad 582 which followed a decision of the Allahabad High Court in Lyallpur Sugar Mills Co. Ltd. v. Ram Chandra Gur Sahai Cotton Mills Co. Ltd. AIR 1922 All 238. I should have been content to set aside the learned Judge's order on this short ground and send the case back for disposal according to law if it had not been that the learned Judge's order shows that he felt that his orders repeatedly made had been systematically defied and that nothing less than the dismissal of the suit would satisfy the ends of justice. I have made a study of the orders passed and I have come to the conclusion that the plaintiff did not either systematically or otherwise disobey any order to which the penalty attached to O.11, Rule 21 could be attracted. (After carefully setting out the circumstances and facts, his Lordship proceeded.) I have thought it necessary to set out these facts only out of respect to the learned Judge and to the feelings which apparently he had come to entertain that a litigant in his Court deliberately disobeyed the order of the Court and flouted its authority. As I understand the facts, the plaintiff fully complied with and carried out the orders passed on the first two petitions, I.A. Nos. 152 and 252 of 1930. He also partly carried out a part of the order on I.A. No. 334 of 1930 by producing 197 chits which was all he could collect in the time. As to his not producing the other account books, the short answer is that there were no other account books that related to the transactions between the parties, and the plaintiff cannot reasonably be blamed for resisting an order that he should produce note books relating to transactions between the parties, but absolutely unconnected things with which the defendant had nothing to do. I feel that if the learned Judge had understood this he would not have passed the order and he would have recognized that there was nothing really and substantially disobedient in the omission of the plaintiff to produce irrelevant account books. The learned Judge's order is partly due to this. The only other records not produced are the remaining chits, letters, pronotes etc. So far as this disobedience is concerned, in my opinion, it was not real disobedience.
2. The plaintiff produced 197 chits. How many more he had no one can now say because he did not have time to pick up the rest. It is not permissible to a party to excuse the disobedience of an order to produce documents to take shelter under the view that the order itself is wrong, unless the order is set aside by the superior Court. Every litigant is bound to the best of his power to carry out orders made. That was not the ground on which the plaintiff sought to excuse himself. He did obey the order, and for the documents which were not collected he asked for time and he also asked for time to come to this Court, both of which were practically refused. It was impossible for the plaintiff to produce at Cochin chits, letters, pronotes, etc., which had passed between the parties during a whole year after picking them up and collecting them at Quilon, a hundred miles away, in four days after the order, and I feel that if the learned Judge had realised the impossibility of carrying out the order which he made he would not have made it. I therefore think that there was no such contumacious disobedience on the part of the plaintiffs as to any part of the order on I.A. No 334 of 1930 as should in any case entail the extreme penalty for a plaintiff litigant, namely, that his suit should be dismissed.
3. But as I said, the learned Judge's order fails on the preliminary ground that ha had no power to make it under the provisions of law under which he purported to act. The learned Judge's order is set aside and the suit will be sent back to be restored to its original number on the file and disposed of according to law as against defendant-respondent 1. The appellant will have his costs of this appeal from defendant-respondent 1.