Having heard the learned Counsel appearing for the
parties, I have considered the rival contentions. It is trite as settled by
the Judgments of the Apex Court as well as this Court that an order
striking out the defence of a defendant has to be resorted to as a last
resort that too only if the defendant has shown willful default or willful
attempt to disregard the order passed during the course of the trial, as
any order striking out pleadings has got serious consequences and is
therefore a matter of serious prejudice. The parameters for exercise of
the said power have been spelt out in various judicial pronouncements.
Reference could be made to the Judgments of the Apex Court in the
matter of Babar Sewing Machine Co. vs. T. N. Mahajan1 and Paradise
1 1978 (4) SCC 188
Industrial Corporation vs. Kiln Plastics Products2 and a Judgment of a
Division Bench of this Court in the matter of Ashapura Minechem Ltd.
vs. Pasific Basin IHX (UK) Ltd.3 The said Judgments lay down the
preposition of law that the order striking out the defence or dismissal of
Suit should not be made lightly unless there is willful default or willful
attempt or a conduct which is contumacious on the part of the
concerned party. It has further been held that though in certain
circumstances the provisions of Order XI Rule 21 must be strictly
enforced, it does not follow that the Suit can be lightly thrown out or
defence struck of without adequate reasons. The rule must be worked
with caution and may be made use of as a last resort.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7493 OF 2014
Mr. Sanjay Wamanrao Bodke }
versus
Smt. Padmini Nandkumar Nair
CORAM :R.
M. SAVANT, J.
DATED :SEPTEMBER
23, 2014
Citation;2015(2)ALLMR46
Read original judgment here; click here
2) The writ Jurisdiction of this court is invoked against the
order dated 15th July, 2014 passed by the learned 5th Joint Civil Judge,
senior Division, Nashik, by which order, the application Exhibit284
for
striking out the defence of the Petitioners i.e. the Defendant Nos. 3 and
4 to the Suit in question, came to be allowed and the defences of the
said Defendants came to be struck of.
3) It is not necessary to burden this order with unnecessary
details. Suffice it to state that in the Suit in question being Special Civil
Suit No. 420 of 2012 filed by the Respondent No. 1 herein/original
Plaintiff for partition, in the said Suit an application Exhibit274
for
interrogatories came to be filed by the original Plaintiff. The said
application came to be partly allowed by the Trial Court by order dated
12th December, 2011. Insofar as the interrogatories are concerned the
interrogatories at Sr. Nos. 3a, 7, 12, 14 and 15 were directed to be
answered by the Defendant Nos. 3 and 4 and the Plaintiff was directed
to serve the said interrogatories to the Defendant Nos. 3 and 4 and the
Defendant Nos. 3 and 4 were directed to answer the same within the
time prescribed in Order XI Rule 8 of the Civil Procedure Code.
4) An application seeking extension of time being Exhxibit279
came to be filed by the Defendant Nos. 3 and 4, by which
application, the said Defendants sought extension of time for answering
the interrogatories. The said extension was sought on two fold
grounds, namely to enable the Defendants to approach the higher Court
and also on the ground that since some time would be required to
collate the information required to answer the interrogatories, that the
time be extended. The Plaintiff was directed to file a reply to the said
application Exhibit279.
It appears that the Plaintiff on 6th January,
2012, filed application Exhibit284
for striking out the defence of the
Defendant Nos. 3 and 4 on the ground that they have not complied with
the order dated 12th December, 2011. The said application was filed in
the Court of the learned Civil Judge, Senior Division at Niphad. It
seems that the Suit in question thereafter came to be transferred to the
Court of the learned Civil Judge, Senior Division, Nashik some time in
September, 2012. the Defendant Nos. 3 and 4 filed an application
Exhibit 449 seeking condonation of delay in answering the
interrogatories, which they had answered and which answers were
placed on record vide the application Exhibit449.
It is thereafter that
the impugned order came to be passed on 15th July, 2014 striking out
the defence of the Defendant Nos. 3 and 4.
5) It is required to be noted that neither the application
Exhibit279
nor the application Exhibit449
filed by the Defendant Nos.
3 and 4 were considered by the Trial Court. The Trial Court, whilst
allowing the application Exhibit284
filed by the Plaintiff, has recorded
a finding that the conduct of the Defendant Nos. 3 and 4 in not
answering the interrogatories within the time stipulated in Order XI was
obstinate and bordering on being contumacious. As indicated above, it
is the said order dated 15th July, 2014, which is sought to be taken
exception to by way of the above Petition.
6) Heard the learned Counsel appearing for the parties.
7) The learned Counsel appearing for the Petitioners i.e. the
Defendant Nos. 3 and 4 would reiterate the case of the said Defendants
in the applications Exhibit279
and 284 urged in the Trial Court. The
learned Counsel would contend that in the facts and circumstances of
the case, where the Defendant Nos. 3 and 4 had filed an application on
8th January, 2014, which was on record, the Trial Court ought not to
have proceeded to strike out the defence of the Defendant Nos. 3 and 4
by the impugned order dated 15th July, 2014.
8) Per contra, the learned Counsel appearing for the
Respondent No. 1/original Plaintiff would support the impugned order.
The learned Counsel would contend that the striking out of the defence
was warranted in the facts and circumstances of the case where the
Defendant Nos. 3 and 4 had not chosen to answer the interrogatories
within the time stipulated under Order XI of the Code and that the
application Exhibit279
was filed for seeking stay of the said order
dated 12th December, 2011 so as to enable the Defendants to approach
the higher Court. The learned Counsel would seek to draw this Court's
attention to the manner in which the interrogatories have been
answered and which answers are placed on record vide Exhibit449
filed on 8th January, 2014, and would contend that the answers are
perfunctory in nature. The learned Counsel would therefore support
the impugned order and contend that the same may not be interfered
with in the Writ Jurisdiction of this Court.
9) Having heard the learned Counsel appearing for the
parties, I have considered the rival contentions. It is trite as settled by
the Judgments of the Apex Court as well as this Court that an order
striking out the defence of a defendant has to be resorted to as a last
resort that too only if the defendant has shown willful default or willful
attempt to disregard the order passed during the course of the trial, as
any order striking out pleadings has got serious consequences and is
therefore a matter of serious prejudice. The parameters for exercise of
the said power have been spelt out in various judicial pronouncements.
Reference could be made to the Judgments of the Apex Court in the
matter of Babar Sewing Machine Co. vs. T. N. Mahajan1 and Paradise
1 1978 (4) SCC 188
Industrial Corporation vs. Kiln Plastics Products2 and a Judgment of a
Division Bench of this Court in the matter of Ashapura Minechem Ltd.
vs. Pasific Basin IHX (UK) Ltd.3 The said Judgments lay down the
preposition of law that the order striking out the defence or dismissal of
Suit should not be made lightly unless there is willful default or willful
attempt or a conduct which is contumacious on the part of the
concerned party. It has further been held that though in certain
circumstances the provisions of Order XI Rule 21 must be strictly
enforced, it does not follow that the Suit can be lightly thrown out or
defence struck of without adequate reasons. The rule must be worked
with caution and may be made use of as a last resort.
10) The question which therefore falls for consideration is
whether in the facts and circumstances of the case an order warranting
striking out defence was warranted. In the said context, it is required to
be noted that in the application Exhibit279,
which was filed for stay,
the said relief was sought by the Defendant Nos. 3 and 4 on the twin
grounds that they intend to approach the higher Court against the order
dated 12th December, 2011 and that some time would be required for
them to collate the information so as to answer the interrogatories. It is
therefore not as if the Defendant Nos. 3 and 4 had shown a total
2 1975 LawSuit (SC)368
3 2013 LawSuit(Bom) 253
reluctance or obstinacy to answer the interrogatories. It is therefore not
a case where the Defendants can be said to have committed a willful
default or their conduct was contumacious. It is further required to be
noted that the Defendant Nos. 3 and 4 thereafter filed an application
Exhibit449
seeking condonation of delay in answering the
interrogatories, in which application, the Defendants had sought to
place their answers to the interrogatories on record. The said
application therefore can be said to indicate that the defendants had
complied with the said order dated 12th December, 2011 albeit
belatedly. The delay could have been a defining aspect if the order
striking out defence, were to have been passed prior to 8th January,
2014, but such is not the case in the instant matter. The said
application Exhibit449
was filed almost six months prior to the
impugned order striking out the defence, which is dated 15th July, 2014,
was passed. The Trial Court has, without even considering the
applications Exhibits279
and 449 has passed the impugned order.
11) In my view, in the light of the said applications Exhibit279
and 449, the Trial Court ought to have been a bit circumspect
considering the fact that it was considering an application filed by the
Plaintiff, which would have drastic consequences for the Defendants. In
my view therefore, the impugned order insofar as it strikes out the
defence of the Defendant Nos. 3 and 4 is not sustainable and is required
to be quashed and set aside and is accordingly quashed and set aside.
12) However, one aspect remains, which is as regards the
answers to the interrogatories. Though the same does not directly falls
for consideration of this Court in the above Petition, in view of the fact
that the learned Counsel appearing for the Petitioners Shri. Talhar fairly
stated that the Defendant Nos. 3 and 4 have no objection to supplement
the answers, which have been already provided with further material,
the said aspect is taken up for consideration. The learned Counsel
appearing for the Respondents Shri. Kulkarni makes a grievance as
regards the answers which have been given to the interrogatories,
which are found at pages 60 to 63, which were placed on record along
with the application Exhibit449.
The learned Counsel Shri. Talhar
states that insofar as question No. 7 is concerned, the numbers of the
Bank Accounts of the Defendant Nos. 3 and 4 would be given as also
the amounts, if there are any substantial withdrawals after the filing of
the Suit. The learned Counsel further states that insofar as question No.
14 is concerned, the second part of the question would be answered and
insofar as question No. 15 is concerned, a more specific answer with
details would be tried to be given. Shri. Talhar assures the Court that
the said answers would be given within four weeks. Insofar as question
No. 3a is concerned, Shri. Talhar states that the Defendant No. 3 would
answer the same. It is expected that the Defendant Nos. 3 and 4 would
stand by their assurance.
13) The Petition is allowed to the aforesaid extent. Rule is
accordingly made absolute in the aforesaid terms with parties to bear
their respective costs of the Petition.
(R. M. SAVANT, J.)
Print Page
parties, I have considered the rival contentions. It is trite as settled by
the Judgments of the Apex Court as well as this Court that an order
striking out the defence of a defendant has to be resorted to as a last
resort that too only if the defendant has shown willful default or willful
attempt to disregard the order passed during the course of the trial, as
any order striking out pleadings has got serious consequences and is
therefore a matter of serious prejudice. The parameters for exercise of
the said power have been spelt out in various judicial pronouncements.
Reference could be made to the Judgments of the Apex Court in the
matter of Babar Sewing Machine Co. vs. T. N. Mahajan1 and Paradise
1 1978 (4) SCC 188
Industrial Corporation vs. Kiln Plastics Products2 and a Judgment of a
Division Bench of this Court in the matter of Ashapura Minechem Ltd.
vs. Pasific Basin IHX (UK) Ltd.3 The said Judgments lay down the
preposition of law that the order striking out the defence or dismissal of
Suit should not be made lightly unless there is willful default or willful
attempt or a conduct which is contumacious on the part of the
concerned party. It has further been held that though in certain
circumstances the provisions of Order XI Rule 21 must be strictly
enforced, it does not follow that the Suit can be lightly thrown out or
defence struck of without adequate reasons. The rule must be worked
with caution and may be made use of as a last resort.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7493 OF 2014
Mr. Sanjay Wamanrao Bodke }
versus
Smt. Padmini Nandkumar Nair
CORAM :R.
M. SAVANT, J.
DATED :SEPTEMBER
23, 2014
Citation;2015(2)ALLMR46
Read original judgment here; click here
2) The writ Jurisdiction of this court is invoked against the
order dated 15th July, 2014 passed by the learned 5th Joint Civil Judge,
senior Division, Nashik, by which order, the application Exhibit284
for
striking out the defence of the Petitioners i.e. the Defendant Nos. 3 and
4 to the Suit in question, came to be allowed and the defences of the
said Defendants came to be struck of.
3) It is not necessary to burden this order with unnecessary
details. Suffice it to state that in the Suit in question being Special Civil
Suit No. 420 of 2012 filed by the Respondent No. 1 herein/original
Plaintiff for partition, in the said Suit an application Exhibit274
for
interrogatories came to be filed by the original Plaintiff. The said
application came to be partly allowed by the Trial Court by order dated
12th December, 2011. Insofar as the interrogatories are concerned the
interrogatories at Sr. Nos. 3a, 7, 12, 14 and 15 were directed to be
answered by the Defendant Nos. 3 and 4 and the Plaintiff was directed
to serve the said interrogatories to the Defendant Nos. 3 and 4 and the
Defendant Nos. 3 and 4 were directed to answer the same within the
time prescribed in Order XI Rule 8 of the Civil Procedure Code.
4) An application seeking extension of time being Exhxibit279
came to be filed by the Defendant Nos. 3 and 4, by which
application, the said Defendants sought extension of time for answering
the interrogatories. The said extension was sought on two fold
grounds, namely to enable the Defendants to approach the higher Court
and also on the ground that since some time would be required to
collate the information required to answer the interrogatories, that the
time be extended. The Plaintiff was directed to file a reply to the said
application Exhibit279.
It appears that the Plaintiff on 6th January,
2012, filed application Exhibit284
for striking out the defence of the
Defendant Nos. 3 and 4 on the ground that they have not complied with
the order dated 12th December, 2011. The said application was filed in
the Court of the learned Civil Judge, Senior Division at Niphad. It
seems that the Suit in question thereafter came to be transferred to the
Court of the learned Civil Judge, Senior Division, Nashik some time in
September, 2012. the Defendant Nos. 3 and 4 filed an application
Exhibit 449 seeking condonation of delay in answering the
interrogatories, which they had answered and which answers were
placed on record vide the application Exhibit449.
It is thereafter that
the impugned order came to be passed on 15th July, 2014 striking out
the defence of the Defendant Nos. 3 and 4.
5) It is required to be noted that neither the application
Exhibit279
nor the application Exhibit449
filed by the Defendant Nos.
3 and 4 were considered by the Trial Court. The Trial Court, whilst
allowing the application Exhibit284
filed by the Plaintiff, has recorded
a finding that the conduct of the Defendant Nos. 3 and 4 in not
answering the interrogatories within the time stipulated in Order XI was
obstinate and bordering on being contumacious. As indicated above, it
is the said order dated 15th July, 2014, which is sought to be taken
exception to by way of the above Petition.
6) Heard the learned Counsel appearing for the parties.
7) The learned Counsel appearing for the Petitioners i.e. the
Defendant Nos. 3 and 4 would reiterate the case of the said Defendants
in the applications Exhibit279
and 284 urged in the Trial Court. The
learned Counsel would contend that in the facts and circumstances of
the case, where the Defendant Nos. 3 and 4 had filed an application on
8th January, 2014, which was on record, the Trial Court ought not to
have proceeded to strike out the defence of the Defendant Nos. 3 and 4
by the impugned order dated 15th July, 2014.
8) Per contra, the learned Counsel appearing for the
Respondent No. 1/original Plaintiff would support the impugned order.
The learned Counsel would contend that the striking out of the defence
was warranted in the facts and circumstances of the case where the
Defendant Nos. 3 and 4 had not chosen to answer the interrogatories
within the time stipulated under Order XI of the Code and that the
application Exhibit279
was filed for seeking stay of the said order
dated 12th December, 2011 so as to enable the Defendants to approach
the higher Court. The learned Counsel would seek to draw this Court's
attention to the manner in which the interrogatories have been
answered and which answers are placed on record vide Exhibit449
filed on 8th January, 2014, and would contend that the answers are
perfunctory in nature. The learned Counsel would therefore support
the impugned order and contend that the same may not be interfered
with in the Writ Jurisdiction of this Court.
9) Having heard the learned Counsel appearing for the
parties, I have considered the rival contentions. It is trite as settled by
the Judgments of the Apex Court as well as this Court that an order
striking out the defence of a defendant has to be resorted to as a last
resort that too only if the defendant has shown willful default or willful
attempt to disregard the order passed during the course of the trial, as
any order striking out pleadings has got serious consequences and is
therefore a matter of serious prejudice. The parameters for exercise of
the said power have been spelt out in various judicial pronouncements.
Reference could be made to the Judgments of the Apex Court in the
matter of Babar Sewing Machine Co. vs. T. N. Mahajan1 and Paradise
1 1978 (4) SCC 188
Industrial Corporation vs. Kiln Plastics Products2 and a Judgment of a
Division Bench of this Court in the matter of Ashapura Minechem Ltd.
vs. Pasific Basin IHX (UK) Ltd.3 The said Judgments lay down the
preposition of law that the order striking out the defence or dismissal of
Suit should not be made lightly unless there is willful default or willful
attempt or a conduct which is contumacious on the part of the
concerned party. It has further been held that though in certain
circumstances the provisions of Order XI Rule 21 must be strictly
enforced, it does not follow that the Suit can be lightly thrown out or
defence struck of without adequate reasons. The rule must be worked
with caution and may be made use of as a last resort.
10) The question which therefore falls for consideration is
whether in the facts and circumstances of the case an order warranting
striking out defence was warranted. In the said context, it is required to
be noted that in the application Exhibit279,
which was filed for stay,
the said relief was sought by the Defendant Nos. 3 and 4 on the twin
grounds that they intend to approach the higher Court against the order
dated 12th December, 2011 and that some time would be required for
them to collate the information so as to answer the interrogatories. It is
therefore not as if the Defendant Nos. 3 and 4 had shown a total
2 1975 LawSuit (SC)368
3 2013 LawSuit(Bom) 253
reluctance or obstinacy to answer the interrogatories. It is therefore not
a case where the Defendants can be said to have committed a willful
default or their conduct was contumacious. It is further required to be
noted that the Defendant Nos. 3 and 4 thereafter filed an application
Exhibit449
seeking condonation of delay in answering the
interrogatories, in which application, the Defendants had sought to
place their answers to the interrogatories on record. The said
application therefore can be said to indicate that the defendants had
complied with the said order dated 12th December, 2011 albeit
belatedly. The delay could have been a defining aspect if the order
striking out defence, were to have been passed prior to 8th January,
2014, but such is not the case in the instant matter. The said
application Exhibit449
was filed almost six months prior to the
impugned order striking out the defence, which is dated 15th July, 2014,
was passed. The Trial Court has, without even considering the
applications Exhibits279
and 449 has passed the impugned order.
11) In my view, in the light of the said applications Exhibit279
and 449, the Trial Court ought to have been a bit circumspect
considering the fact that it was considering an application filed by the
Plaintiff, which would have drastic consequences for the Defendants. In
my view therefore, the impugned order insofar as it strikes out the
defence of the Defendant Nos. 3 and 4 is not sustainable and is required
to be quashed and set aside and is accordingly quashed and set aside.
12) However, one aspect remains, which is as regards the
answers to the interrogatories. Though the same does not directly falls
for consideration of this Court in the above Petition, in view of the fact
that the learned Counsel appearing for the Petitioners Shri. Talhar fairly
stated that the Defendant Nos. 3 and 4 have no objection to supplement
the answers, which have been already provided with further material,
the said aspect is taken up for consideration. The learned Counsel
appearing for the Respondents Shri. Kulkarni makes a grievance as
regards the answers which have been given to the interrogatories,
which are found at pages 60 to 63, which were placed on record along
with the application Exhibit449.
The learned Counsel Shri. Talhar
states that insofar as question No. 7 is concerned, the numbers of the
Bank Accounts of the Defendant Nos. 3 and 4 would be given as also
the amounts, if there are any substantial withdrawals after the filing of
the Suit. The learned Counsel further states that insofar as question No.
14 is concerned, the second part of the question would be answered and
insofar as question No. 15 is concerned, a more specific answer with
details would be tried to be given. Shri. Talhar assures the Court that
the said answers would be given within four weeks. Insofar as question
No. 3a is concerned, Shri. Talhar states that the Defendant No. 3 would
answer the same. It is expected that the Defendant Nos. 3 and 4 would
stand by their assurance.
13) The Petition is allowed to the aforesaid extent. Rule is
accordingly made absolute in the aforesaid terms with parties to bear
their respective costs of the Petition.
(R. M. SAVANT, J.)
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