MINERAL ENTERPRISES PVT Vs. NILCONTA G AMONKAR

JUDGEMENT

(1.) HEARD Shri D. Pangam, learned Counsel appearing for the Petitioners and Shri Nitin Sardessai, learned Counsel appearing for the Respondents.

(2.) THE above Petition challenges the Order passed by the learned District Judge, South Goa, at Margao, dated 26.07.2006, passed in Misc. Civil Appeal no. 13/2005, whereby an Appeal preferred by the Respondents challenging the Order passed by the learned Trial Judge, dismissing the application under Order 39 Rule 11 of the Civil Procedure Code, came to be allowed and the defence of the Petitioners was struck down.

(3.) SHRI Pangam, learned Counsel appearing for the Petitioners, has raised a grievance as far as the impugned Order is concerned essentially on the short ground that the learned Appellate Court has proceeded to hold that once there is a breach of an Order, the consequences of striking of the defence under Order 39 Rule 11 of the Civil Procedure Code was mandatory. Learned Counsel further pointed out that the learned Judge has relied upon the Judgment of the learned Single Judge of this Court which was overruled by the Division Bench in the Judgment in the case of Ramavatar Surajmal Modi vs. Mulchand Surajmal Modi, 2004 2 MhLJ 1. The learned Counsel has taken me through the Judgments of the Division Bench of this Court and pointed out that the Division Bench has held that the Order of striking of of defence is discretionary and not mandatory and, as such, on this ground alone, the impugned Order deserves to be quashed and set aside. Learned Counsel further pointed out that as far as the merits of the case are concerned, the Petitioners have not committed any breach of Order as, according to him, the Order of alleged breach was only permitting the Petitioners to remove the ore from the suit property. Learned Counsel further pointed out that without considering the defence of the Petitioners to the application under Order 39 Rule 11 of the Civil Procedure Code, the learned Judge has allowed the Appeal preferred by the Respondents essentially on the ground that once there is a breach of the Order, the defence of the Petitioners is to be struck off. Learned Counsel has taken me through the impugned Judgment and pointed out that the learned Judge has misconstrued the provisions of law as well as the evidence on record to come to such conclusion. On the other hand, Shri Sardessai, learned Counsel appearing for the Respondents, has supported the impugned Judgment. Learned Counsel has further pointed out that though the Division Bench of this Court has overruled the Judgment of the learned Single Judge of this Court relied upon by the learned Appellate Court, nevertheless, considering that the Petitioners have committed a breach of the Order passed by the learned Trial Judge, the consequences of striking off the defence under Order 39 Rule 11 of the Civil Procedure Code, is justified. Learned Counsel further pointed out that the learned Judge has rightly found that the Petitioners have committed a breach of the Order when the Petitioners were only permitted to remove all the ore from the suit property.