Sunday, 27 January 2019

Whether court can strike off defence of defendant even if no application in that respect is made by plaintiff?

 As per the provisions of Order XI Rule 21 of the Code, the party failing to comply with any order, if a defendant is liable to have the defence struck off. This is however subject to the other party applying to the Court for an order to that effect and such order being made on that application after due notice to the parties and giving them reasonable opportunity of being heard. The records indicate that the plaintiff did not move any application for striking off the defence of the defendant and without granting any opportunity to the defendant, the trial Court passed an order below Exhibit-1 and struck of the defence. In absence of any such application by the plaintiff as contemplated by Rule 21 of Order XI of the Code, the defence could not have been struck off in such a manner. Suo motu exercise of powers in this regard are not contemplated by aforesaid provisions that too without notice to the other side. There is therefore failure to comply with the provisions of Order XI Rule 21 of the Code. The order striking out the defence is a drastic order causing prejudice to that party whose defence is struck off. The power in that regard has thus to be exercised after complying with the prescribed procedure.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 520 of 2017

Decided On: 20.07.2018

The Akola Municipal Corporation Vs. Purushottam Punjabrao Gawande

Hon'ble Judges/Coram:
A.S. Chandurkar, J.

Citation: 2019(1) MHLJ 180


1. Admit.

2. Heard finally on the following substantial question of law:

Whether the order passed by the trial Court below Exhibit-1 in exercise of powers under Order-XI Rule 21 of the Code of Civil Procedure, 1908 is after giving reasonable opportunity to the defendant?

3. The respondent is the original plaintiff who had filed suit seeking recovery of an amount of Rs. 1,33,303/- being the balance amount payable on account of work done by him. According to the plaintiff, he had supplied water to the respondents of Ward No. 17 in the city of Akola for the period from 29-9-2004 to 31-7-2005 but he was not paid the entire dues as agreed. In the written statement it was pleaded that the suit was barred by limitation and that the defendant had made necessary payments due to which there were no dues to be further paid. The trial Court after considering the evidence on record partly decreed the suit and directed the defendant to pay an amount of Rs. 1,33,303/- along with interest. Being aggrieved, the original defendant filed an appeal which came to be dismissed. Hence this second appeal.

4. It is submitted by the learned Counsel for the appellant that before the trial Court the plaintiff had filed two applications at Exhibits 18 and 19. As per application at Exhibit-18, a notice to produce certain original documents was given to the defendant. As per application at Exhibit-19, discovery of documents under Order XI Rule 10 of the Code of Civil Procedure, 1908 (for short, the Code) was sought. The defendant despite these applications did not comply with the directions issued therein. The trial Court, therefore, exercised powers under Order XI Rule 21 of the Code and struck off the defence of the defendant. It is submitted that this course was not permissible as the defence was struck off without granting an opportunity to the defendant. This has caused prejudice to the case of the defendant and the impugned judgment is therefore liable to be set aside.

5. Shri O.Y. Kashid, learned Counsel for the respondent supported the impugned judgment. He submitted that the directions issued in both the applications were not complied with and therefore the defence was rightly struck off. It was submitted that the order passed by the trial Court below Exhibit-1 on 11-11-2010 was not challenged by the defendant before the appellate Court and therefore such challenge should not be permitted at this stage. The claim having been duly proved the decree does not call for any interference.

6. Heard the learned Counsel for the parties at length and perused the records of the case. It is not in dispute that the plaintiff had filed two applications at Exhibits 18 and 19 seeking production of the original records and for discovery of documents. No say was filed by the defendant and therefore, the trial Court directed the defendant to discover the said documents on affidavit. This order was passed on 22-10-2010. On 11-11-2010 the trial Court passed an order below Exhibit-1 and struck off the pleadings of the defendant. This has been done in exercise of powers under provisions of Order XI Rule 21 of the Code.

7. As per the provisions of Order XI Rule 21 of the Code, the party failing to comply with any order, if a defendant is liable to have the defence struck off. This is however subject to the other party applying to the Court for an order to that effect and such order being made on that application after due notice to the parties and giving them reasonable opportunity of being heard. The records indicate that the plaintiff did not move any application for striking off the defence of the defendant and without granting any opportunity to the defendant, the trial Court passed an order below Exhibit-1 and struck of the defence. In absence of any such application by the plaintiff as contemplated by Rule 21 of Order XI of the Code, the defence could not have been struck off in such a manner. Suo motu exercise of powers in this regard are not contemplated by aforesaid provisions that too without notice to the other side. There is therefore failure to comply with the provisions of Order XI Rule 21 of the Code. The order striking out the defence is a drastic order causing prejudice to that party whose defence is struck off. The power in that regard has thus to be exercised after complying with the prescribed procedure. Reference in this regard may be made to the decision in United Church of Northern India Trust Association Mumbai vs. Pradip Thomas Parmar and others MANU/MH/1249/2016 : 2017 (2) Mh.L.J. 747. The prescribed procedure not having been followed, the further adjudication of the suit has been affected.

8. Though it is submitted by the learned Counsel for the plaintiff that no ground in that regard was raised before the appellate Court, as per ground No. 18 in the memorandum of appeal, a grievance has been made that the trial Court decided the suit in a manner contrary to law and against the principles of natural justice. This ground is sufficient to sustain the present challenge. On this count therefore the adjudication of the suit stands vitiated. Hence, the trial Court is required to be directed to decide the proceedings from the stage of reconsideration of the applications at Exhibits 18 and 19. The substantial question of law is answered by holding that the order passed by the trial Court below Exhibit-1 in exercise of powers under Order XI Rule 21 of the Code is without giving an opportunity to the defendant.

9. In view of aforesaid, the following order is passed:

(a) The judgment of the trial Court in Regular Civil Suit No. 70/2009 dated 22-12-2010 as well as the judgment in Regular Civil Appeal No. 143/2012 dated 18-3-2017 is set aside. The proceedings are remitted to the trial Court which shall decide the suit afresh by taking up for consideration the applications at Exhibits 18 and 19. It would be open for the plaintiff to move appropriate application under Order XI Rule 21 of the Code in case of non-compliance. The parties shall appear before the trial Court on 1-9-2018. The suit be decided expeditiously. Record and proceedings be sent to the trial Court forthwith.

(b) The amount of Rs. 75,000/- deposited by the defendant shall be transferred along with accrued interest to the trial Court and that amount shall abide by the final orders in the suit.

(c) The Second Appeal is allowed in aforesaid terms leaving the parties to bear their own costs.


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