STATE OF MADHYA PRADESH Vs. SUNDER LAL JAISWAL

JUDGEMENT

(1.) This judgment shall also govern the disposal of First Appeals Nos. 31, 32, 33, 34 and 35 all of 1972. All these appeals have been preferred by the State of Madhya Pradesh and they arise out of six suits filed against the State by six excise contractors for damages for non-supply of country liquor.

(2.) The plaintiffs in these suits were granted licences for the retail sale of country liquor under the supply system for shops in Balaghat District for the year 1967-68. The grant of licences was preceded by auction and the plaintiffs were the successful bidders as a result of which they received the licences. The plaintiffs were to pay the licence fee mentioned in the licences. The plaintiffs were to receive supply of liquor from the Government Warehouse on payment of price at issue rates mentioned in the licences and they were required to sell the same at the selling rates also mentioned in the licences. The case of the plaintiffs was that because of shortage of liquor in the warehouse, they could not get adequate supplies and they had to close their shops for a number of days causing loss in business. All the plaintiffs except the plaintiff in Civil Suit No. 2-B of 1970 (F-A No. 35 of 1972) had default in payment of licence fee. The unpaid amounts of the licence fee were adjusted, against the compensation claimed by the plaintiffs in these suits and decrees were claimed for the balance amounts of compensation In Civil Suit No. 2-B of 1970 (F-A. No. 35 of 1972) there was no question of adjustment of any part of the licence fee as the entire amount of fee had been paid to the Government and the relief in the suit was for recovery of the whole of the compensation claimed by the plaintiff. All these suits were consolidated and decided by a common judgment by the Additional District Judge, Chhindwara. It would be convenient first to take up the common questions involved in these cases and then to deal with them separately with reference to their special facts.

(3.) The first question that has been argued by the learned Government Advocate is that the Additional District Judge was in error in striking off the defence of the State in five suits. Except in Civil Suit No. 2-B of 1970 (F.A. No. 35 of 1972) the defence of the State was struck off in all the suits by order of the Additional District Judge passed on 15th November 1971 for failure to answer interrogatories. Leave to deliver interrogatories under Order 11, Rule 1 of the Code of Civil Procedure was granted in these five suits on 29th July 1971. No. affidavit answering the interrogatories or taking objections to them was filed by the State. Thereafter, applications were made under Order 11, Rule 11, for an order requiring the State to answer the interrogatories. These applications were allowed on 12th August 1971 and the State was ordered to answer the interrogatories. In spite of this order, no affidavit in reply was filed by the State. The plaintiffs then applied on 15th November 1971 under Order 11, Rule 21 praying that the defence of the State be struck off. At the time of hearing of this application, the Additional Government pleader who appeared for the State was unable to state any satisfactory reason for not answering the interrogatories. He also did not apply for grant of further time to answer the interrogatories. The Additional District Judge held that there was gross negligence on the part of the State in not answering the interrogatories. He, therefore, ordered that the defence in the five suits be struck off. The learned Government Advocate has submitted before us that there was no wilful default on the part of the State in its failure to answer the interrogatories. Reliance has been placed on Jawand Singh v. Krishna Kumar, AIR 1950 Nag 8 which lays down that defence should not be struck off under Order 11, Rule 21 unless the default is wilful. In our opinion, the argument cannot be accepted. The learned Government Advocate has not been able to explain why the interrogatories were not answered. If for any reason it was not possible to answer the interrogatories within the time allowed by the Court, the Government pleader should have applied for more time in the trial Court for answering the interrogatories. It appears that there was no intention on the part of the State to give answers to the interrogatories and it was for the reason that no application for grant of time was made. No oral assurance was also given that the State intended to answer the interrogatories if time was allowed. In the circumstances, the default was clearly wilful. The State must have also known that for wilful default the defence was likely to be struck off. The Additional District Judge was, therefore, justified in striking off the defence. However, we do not think that any serious prejudice was caused to the State because of this order. We have earlier said that all the six suits were consolidated for purposes of recording evidence. One of such suits was Civil Suit No. 2-B of 1970 in which the defence was not struck off and as the questions of fact and law involved were common, the State was free to lead all the evidence that it wanted to lead in that suit on all the questions in dispute.