RAMAVATAR SURAJMAL MODI Vs. MULCHAND SURAJ MODI

JUDGEMENT

(1.) TWIN issues arise in this appeal. The first issue is whether order 39, Rule 11 (1) of the Code of Civil Procedure (Bombay Amendment) introduced in maharashtra by Notification dated 5th Sept. 1983 is mandatory or directory. The other issue is if the said provision is held to be directly, whether the learned single Judge committed any error in exercise of discretion in declining to strike off the defence of the defendant.

(2.) THE aforesaid issues arise in the circumstances which we may briefly indicate. The appellant is the plaintiff and the respondent is the defendant in Suit No. 542/ 1996. The parties are real brothers. The plaintiff claims to be the owner of the subject flat and has prayed for the possession of that flat from the defendant. In the notice of motion taken out by the plaintiff being notice of motion No. 2440/1996, the Court receiver was appointed vide order dated 5th march, 1998 by consent of the parties in respect of the subject flat. By the said order the Court Receiver was directed to take only formal possession and appoint the defendant as its agent for the royalty to be fixed, but without security. The consent order dated 5th March, 1998 came to be challenged by the defendant in appeal. The Division Bench vide order dated 5th May, 1998 dismissed the appeal but granted liberty to the defendant to apply for clarification of the order 5th March 1998, if so advised. The defendant filed review petition which was dismissed on 24th Sept. 1998. An appeal was preferred by the defendant against the order dated 24th Sept. but he failed. In the meanwhile the Court Receiver took formal possession of the subject flat and appointed the defendant as its agent on monthly ad hoc royalty of Rs. 5. 000/ -. Subsequently on receipt of the valuers report the Court Receiver fixed final royalty of Rs. 38. 000/- per month in the meeting held on 30th March 1999. The defendant took out chamber summons being chambers summons No. 597/ 1999 challenging the fixation of royalty at the rate of Rs. 38. 000/ -. Vide order dated 29th Sept. 1999 the Court Receiver was directed to ascertain the current rate of rent (royalty) that the subject flat would fetch while taking into account the demand and situation of the flat dehors other valuation reports and the Court Receiver was directed to submit the report. In compliance thereof, the Court Receiver submitted the report dated 24th Nov. 1999 and royalty of Rs. 30. 000/- to Rs. 35. 000/- per month was suggested as per the prevailing market rate. By the order dated 6th Dec. 1999, the learned chamber Judge fixed by the sum of rs. 25. 000/- per month as royalty. The defendant carried the order dated 6th Dec. 1999 in appeal. The said appeal was summarily rejected by the order dated 14th march, 2000. On the application for speaking to the minutes, the Division Bench by the order dated 10th April, 2000 ordered that if the arrears of royalty were paid within a period of three months from the date of the order dated 14th March, 2000, the Receiver Bom. shall not take forcible possession and if the arrears were not paid by the said deadline and the royalty was not paid every month as already held in the order dated 14th march 2000, the Court Receiver was permitted to take possession. The defendant challenged the order dated 14th March, 2000 passed by the Division Bench in a special leave petition before the Supreme Court. Vide interim order dated 11th May, 2000 the apex Court directed that the defendant shall not be dispossessed provided he deposits the entire arrears of royalty at the rate of Rs. 5. 000/- per month within a period of two months therefrom and in default, the order shall automatically stand vacated. The special leave petition came to be dismissed by the Supreme Court on 9th Oct. 2000. Upon dismissal of the special leave petition by the supreme Court, the Court Receiver called upon the defendant to deposit the entire arrears of royalty at the rate of Rs. 20. 000/- per month for the period from 5th March 1998 to Sept. 2000 and at the rate of Rs. 25. 000/- per month from Oct. 2000. The defendant did not pay the arrears at the aforesaid rate and instead handed over the possession of the subject flat to the Court receiver on 19th Dec. 2000. Before the defendant handed over possession of the subject flat to the Court Receiver on 19th Dec. 2000, the plaintiff took out notice of motion on 8th Dec. 2000 praying there in inter alia that the written statement dated 28th Sept. 2000 filed by the defendant in the suit be taken off the record and the defence of the defendant be struck off and the suit be placed for ex parte hearing on such day as the Court may deem fit and proper. The notice of motion, obviously, was taken out by the plaintiff under Order 39, Rule 11 (1) of code of Civil Procedure as applicable in the maharashtra. The plea of the plaintiff in support of notice of motion has been that the defendant failed and neglected to pay the amount of royalty under orders and directions of this Court and that the defendant continued to remain in possession in breach of the Court orders and, therefore, the defence of the defendant was liable to be struck off. The defendant responded to the notice of motion and filed his reply affidavit and submitted that he took up the legal proceedings in challenging the order dated 5th March, 1998 whereby he was made agent of the Court Receiver on the payment of royalty but that all the proceedings taken by him turned in vain and thereafter he had already handed over the possession of the subject flat to the Court Receiver willingly. It is also stated in the reply affidavit that he has regularly paid the ad hoc royalty at the rate of Rs. 5. 000/- per month from 5th March, 1998 until he handed over the possession on 19th Dec. 2000.

(3.) THE learned single Judge heard the counsel for the parties and in the impugned order held that Order 39, Rule 11 (1) of the code of Civil Procedure (Bombay Amendment) is directory and that the defendant having already handed over the possession of the subject flat the order striking out the defence of the defendant did not deserve to be passed. It is this order which is under challenge before us.