NAMITA DHAR Vs. AMALENDU SEN

JUDGEMENT

(1.) This Rule arises on an application under Section 115 of the Code of Civil Procedure and is directed against an order striking out defence on defendant's failure to comply with an order for making further discovery and an order refusing to vacate the said order by re-consideration of the matter under Section 151 of the Code of Civil Procedure.

(2.) The facts of the case may briefly be stated as follows :-- The opposite party filed a Money Suit against the petitioner. After the petitioner filed written statement the opposite party filed an application for direction to make discovery of documents that might be relied on by the petitioner. The petitioner through her husband made discovery of documents in her possession or power on 21st of April, 1972 stating therein that the most important document had already been filed in Court. Thereafter on the application of the opposite party for further discovery of documents, an order was passed on June 29, 1972 directing the petitioner to make further discovery on oath by way of supplying further particulars regarding the discovery made on behalf of the petitioner. As the petitioner being a lady and not being familiar with Court affairs and the petitioner's husband having left Calcutta in August 1972 and then was attacked with Jaundice and could not return to Calcutta in due time no steps could be taken on behalf of the petitioner. On 25th of August 1972 the learned Subordinate Judge rejected the written statement and fixed the suit for ex parte hearing on September 13, 1972 although there was no application on behalf of the opposite party for rejecting the written statement. On September 13, 1972 an application was filed by the petitioner praying for vacating the order dated 25th of August 1972. The said application was rejected. Being aggrieved, the petitioner has come up before this Court.

(3.) Mr. Narendra Nath Biswas, learned Advocate appearing on behalf of the petitioner, in the first place submits that the learned Court below was wrong in rejecting the written statement as no application was filed on behalf of the opposite party, and that being so, the Court cannot pass an order rejecting the written statement suo motu under Order 11, Rule 21 of the Code, In support of his contention Mr. Biswas places before us a Bench decision of this Court reported in ILR (1963) 2 Cal 309, (Braja Behari Sen v. Arun Cocmar Bose). At page 313 it has been held that