SHARADAMMA Vs. SHARAD G JADAV

JUDGEMENT

(1.) THE present appeal is filed against an order passed by the Trial Court under Order 11, Rule 21 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'cpc' for brevity) striking off the defence of the appellant before the Trial Court.

(2.) THE brief facts as are relevant for the disposal of the appeal, are as follows.-The plaintiffs suit is for a declaration and mandatory injunction as regards a sump built by the appellant on his premises abutting the respondent's property. The defendant had filed her written statement and objections to the interlocutory application filed by the respondent. It transpires that the respondent had issued a notice purportedly under order 11, Rule 1 of the CPC calling upon the appellant to produce documents mentioned in the said notice. The defendant had not responded to the notice. Hence, the respondent had moved the Trial court for an order under Order 11, Rule 21 of the CPC on the ground that the appellant had failed to respond to the notice under Order 11, rule 1 of the CPC. The Trial Court, after referring to the judgment of the Supreme Court in the case of M/s. Babbar Sewing Machine company v Tirlok Nath Mahajan, has held that the principle governing exercise of discretion of the Court under Order 11, Rule 21 of the CPC is that the Court shall dismiss the suit or strike out of defence, as the case may be, where the parties are guilty of contumacious conduct or when there is a wilful disregard of the order of the Court under Order 11. The court has opined that it would be unfair to strike out the defence of the first defendant and straightaway decree the suit, but it has found it just and proper to strike out the defence and to permit the plaintiff to prove her case in accordance with law. The Counsel for the appellant would contend that the impugned order is a travesty of justice and that it is passed in the face of the provisions of Order 11, Rule 21 of the CPC which prescribes a particular procedure enabling the Court in certain circumstances, to strike out the defences or pass such other orders and the Trial Court has completely overlooked the ratio laid down in the case of M/s. Babbar Sewing Machine, on the facts and circumstances of the particular case and the fact that the Apex Court has held that it was a travesty of justice that the Court has passed an order striking out defence of the first defendant under Order 11, Rule 21 of the CPC and the High Court having declined to set aside the order of the Trial Court in the facts of that case. The Supreme Court has held that the penalty imposed under Order 11, Rule 21 of the CPC is of a highly penal nature and ought only to be used in extreme cases and should in no way be imposed unless there is a clear failure to exercise an obligation laid down in the rule and further, that the principle governing the Court's exercise of discretion under Order 11, Rule 21 of the CPC is only when the default is wilful and as a last resort that the Court should dismiss the suit or strike out the defence when the party is guilty of contumacious conduct or wilful disregard to the order of the Court, when the trial of the suit is arrested. And, therefore, would contend that the appeal would have to be allowed without any further examination of the merits of the case.

(3.) PER contra, Counsel for the respondent would support the order of the Trial Court though the Counsel has not been able convince me as to how it can be sustained in law. For, I find that the provisions of Order 11, Rule 1 of the CPC contemplate that it would be open for the plaintiff or defendant with the leave of the Court to deliver interrogatories in writing and the Court, on examination of such interrogatories, shall decide as to which of the interrogatories the Court considers necessary either for disposing the suit or saving costs. It is also possible that any party may file an application for discovery of documents and the Court, on hearing such an application, may adjudicate the same to consider whether such discovery is necessary either generally or limited to certain documents or in its discretion make an order. The Court may also at any time during the pendency of the suit, order for the production of documents. It is in circumstances such as these, when there is an exercise of discretion by the Court either as to interrogatories, for discovery of documents, or for production and inspection of documents when the party against whom such an order is passed, either wilfully neglects to comply or is guilty of contumacious conduct or as a last resort, as an extreme measure, strike out pleadings or the defence, as laid down by the Supreme Court. In the present case, it is to be found that there was no application in the first instance by the plaintiff submitting any interrogatories for consideration of the Court and seeking its leave, nor was there any application for production of documents. It is the contention of the plaintiff that a notice had been issued calling upon the appellant to produce certain documents and since there was a failure, the respondent had sought for an order of the court under Order 11, Rule 21 of the CPC and the Court, by the impugned order, has struck out the pleadings of the appellant. In my opinion, the Trial Court has committed a gross error in overlooking the procedure and the law. In the interest of justice, the appellant should be reverted back to the position before the passing of the impugned order.