Bench:
- A.P Sen (J)
- Singh Jaswant
- Desai D.A
Issue:
Can Order 11, Rule 21 be used in an normal situation to strike off the defence of the defendant?
Facts:
l The plaintiff-respondent claiming to be an assignee ofa debtunder a deed filed a suitagainst the defendant-appellant for recovery of a certainsum alleged to bedue toM /sChitraMultipurposeCooperative Society, the assignor.
l On an interlocutoryapplication moved by the respondent under order for the production of certain documents,despite the objection by the appellant the Trial Court directed their production.
• The Appellant produced all the documents in his possession and was ordered to take the books of accounts back as they were to be produced before the Income Tax Officer on the same day and was asked to produce them later.
• Later when the appellant produced the documents he was ordered a later date for production and in meanwhile allow the inspection to the respondent with three days notice. The appellant sent the letter accordingly. On failure to do so the appellant sent another registered letter but the respondent never sent any reply to the notice, nor did he inspect the books.
• The trial court then ordered the books to be produced in 4 days in the court to enable the respondent’s counsel to inspect them.
• After the examination of three witnesses of the respondent, the Trial Court asked the respondent’s counsel to strike out the defence of the appellant under Order 11, Rule 21of CPC.
• The respondent filed an application accordingly which was vehemently opposed by the appellant, then appellant then moved both the District Court and High Court for transfer of suit to some other court of competent jurisdiction.
• The High Court declined to interfere and the Trial Court passed an order striking out the defence of the appellant and refused permission to the appellant’s counsel to cross-examine the respondent’s witnesses.
• The revision filed by the appellant in the High Court was rejected. Allowing the appeal by special leave the Supreme Court held the matter.
Judgement:
• The penalty imposed under Order 11, Rule 21 is of high penal nature and should be used only in extreme cases and should no way be imposed unless there is a clear failure to comply with the obligations. It should be applied only in extreme contumacy on the part of the defendant or a wilful attempt to disregard the order of the Court.
• In case of a plaintiff, if the court is satisfied that plaintiff was willfully withholding the documents, which the defendant discovered, only then an order of dismissal of the suit can be made under Order 11, Rule 21 of CPC. In such an event the plaintiff is responsible for the dismissal and should bare the consequences. In case of defendant, he is visited with the penalty that his defence is liable to be struck out and to be placed in the same position as if he had not defended the suit.
• The power for dismissal of a suit or striking out of the defence under the aforesaid order should be exercised only where the defaulting party fails to attend the hearing or is guilty of prolonged or inordinate and inexcusable delay which any cause substantial or serious prejudice to the opposite party. The rule must be used with caution and provoked of as a last resort.
• The Court also mentioned that the trial court should have passed an order striking out the defence of the defendant and the High Court should have declined to set it aside.
• The Court lastly, held that there was no wilful default on the part of the defendant for production of documents for inspection, consequently the order passed by the trial court to strike of the defence of the defendant must be vacated and the trial must proceed afresh from the stage where the defendant was not permitted to participate.
• A perusal of order XI, Rule 21 shows that where adefence is to be struck off in the circumstances mentionedtherein, the order would be that the defendant 'be placed inthe same position as if he has not defended and accordingly the suit would proceedex-parte. If the Court proceeds ex-parte against the defendantunder Order IX, Rule 6(a), the defendant is still entitledto cross-examine the witnesses examined by the plaintiff, ifthe plaintiff makes out a prima facie ease and the court is unablepass a decree for the plaintiff. If the plaintiff fails tomake out a prima facie case,the Court maydismiss theplaintiff's suit. Every Judgein dealing with an ex-partecase has to take care that the plaintiff's case is, atleast, prima facie proved.
