D MEYERS Vs. GORA CHAND BURAL

JUDGEMENT

(1.) THE plaintiffs opposite parties filed an application under Order 11 Rule 1 of the Civil Procedure Code to direct the defendant-petitioner to answer two interrogatories. The court allowed the prayer. Then time was extended. No answer to the interrogatories was given by the petitioner. Subsequently she filed an application to bring a stay, order from the high Court. No stay order was issued by this Court. The defendant-petitioner filed an application under section 17 (2) and 17 (2a) of the West Bengal Premises tenancy Act. Then the plaintiffs put in an application under Order 11 Rule 21 of the code for striking out the defendant's defence for non-compliance of the court's order. An objection was filed. The prayer was allowed and the defendant's defence struck out. Than the defendant s petition under section 17 (2) and 17 (2a) of the west Bengal Premises Tenancy Act was taken up for hearing. The court stated that since the defence had been struck put the application under section 17 (2) and (2a)of the West Bengal Premises Tenancy Act was not maintainable. That petition was rejected. Then she filed a petition under. section 151 of the Code for reconsideration and annexed the answer to the interrogatories. That prayer was disallowed. Against these two orders, one striking out the defence and another dismissing the prayer under sections 17 (2) and 17 (2a) of the west Bengal Premises Tenancy Act, this revisional application has been filed.

(2.) IT has been contended on behalf of the defendant petitioner that in the case of bangai Singh vs. Palit Singh reported in 7 clj 298 at pages 298 and 299, it has been stated that section 136 of the Old v Civil procedure Code renders the defendant liable to have his defence struck out upon failure to answer an interrogatory. It does not make it obligatory upon the court to strike out the defence under all circumstances. If there is obstinacy or contumacy on the defendant's part or willful attempt to disregard the court's order, an order under section 136 of the Code is appropriate. In this respect, the court's order striking out the defence is wrong because on the 12th july, 1978, an order was passed to answer the interrogatories within 10 days. Then the time to answer the interrogatories was extended. Thereafter the defendant made a prayer and time was again fixed on the 1st September, 1978, for orders. No answer to the interrogatories was given. The defendant did not violate the court's order or commit contempt of court or act obstinately. So, there was no scope for striking out his defence under order 11 Rule 21 of the Code. When the application under section 151 of the Code was filed, she annexed answer to the two interrogatories to her application. In the case of A. Ammal vs. Rama Iyer in AIR 1922 madras 426, it has been stated that the feet that the petition was headed as under section 151 of the Code does not debar the court from proceeding with it under any other provision which the court may find actually applicable. The application under section 17 (2) and (2a) of the West Bengal premises Tenancy Act is an independent one. Such application can be filed even when the defence has been struck out. So, the court passed wrong orders.

(3.) THE learned Advocate appearing on behalf of the opposite party has stated that the court directed the defendant to answer to interrogatories. The second one, was to answer the question, to whom the defendant had sublet the disputed premises. No answer to that question was willfully given by her. So, the court's order was violated. Moreover, no sufficient cause or new material was brought to the notice of the court within the meaning of the provisions; of order 47 Rule 1 of the Code. After the plaintiffs filed an application under Order 11 rule 21 of the Code for 'striking out the defendant's defence, she filed an objection giving all her grounds therein. All those objections have been again stated in the application under section 151 of the Code. So, nothing new was stated in this Court or in her application under section 151 off the code or in the objection filed by her in answer to the plaintiffs' petition for striking out her defence. The Bench case of Namita vs. Amalendu in AIR 1977 Cal. 187 has been cited to show that there an order was passed striking out the defendants defence because of failure to comply with the order for making further discovery. It has been stated that where an appealable order is passed and no appeal is filed, no revisional application is maintainable and the court's order cannot be set aside by an application under section 151 of the Code of Civil Procedure. The defendant's application under section 151 of the Code was rejected. After the defendant's defence was struck out, in view of the provisions of Rule 21 (1) of order 11 of the Code, the defendant was placed in the position as if she did not file any written statement to defend the suit. Consequently there was no scope for considering her prayer under section 17 (2) and 17 (2a) of the West Bengal Premises tenancy Act. Both the prayers were rightly rejected.