Whether court should dismiss suit for breach of order of recall of plaintiff for cross examination?

Normally, it
is for the parties to the suit to decide which evidence
to be led and which witness to be examined. Section 120
of the Evidence Act shows that the parties to the Civil
Suit and their wives or husbands shall be competent
witnesses. In the present case the Plaintiff No 2, apart
from being the wife is also the power of attorney holder
of the Plaintiff No. 1. She had expressed willingness to
examine herself on behalf of the Petitioner. The only
question is whether a breach of the Order (passed at the
instance of the Respondents/Defendants permitting recall
of the Plaintiff No. 1 for cross-examination) would
entail consequences under Order 39 Rule 11 CPC or the
failure to remain present for cross-examination in such
case, would only entitle the Court to draw adverse
inference if any, as may be permissible in the facts and
circumstances of the case. In my considered view, the
Order passed at the instance of one of the parties to the
suit seeking recall of a witness of the adversary for
subjecting such witness for cross-examination cannot be
an Order which is contemplated under Order 39 Rule 11 of
CPC. The Court in adversarial litigation only acts on
the basis of the request by one of the parties seeking to
recall a witness for subjecting such witness for crossexamination.
This cannot be said to be an Order by which
Court has directed to do or not to do a thing during the
pendency of the suit.
6. It is not necessary to express any opinion as to
what would be the nature of orders, the breach of which,
would entail consequences under Order 39 Rule 11 of CPC.
For the present purpose suffice it to mention, that in
the present case the only course open to the
Respondents/Defendants in this case would be to insist
for drawing appropriate adverse inference, if any.
7. In the given facts it would not be necessary to
refer to the decisions relied upon in details. In the
case of Sheshrao Ingale (supra) it has been held that
striking out defence does not necessarily mean that
plaintiff's suit automatically stands decreed. In the 
case of Ganpat Shankar Waghmare (supra) it has been held
that a breach of direction issued by Court results into
defence of the defendants being struck of and the
defendant would have no right to cross-examine the
plaintiff or his witnesses. In the case of Sitabai Kerba
Deotarse (supra) there was an Order passed restraining
the defendant nos. 4 to 10 from alienating the suit
property and there was no serious dispute that subsequent
thereto the property was transferred by defendant no. 4
to 10. The case of Ratnakar D. Patade (supra) has been
since overruled by the division bench of this Court, in
the case of Ramavatar Surajmal Modi (supra). The
division bench of this Court holds that the word 'may' in
sub-rule (1) of Rule 11 of Order 39 of the CPC merely
vests power in the Court to stike of defence. It does
not oblige it to do so in every case of default. It can
thus be seen that the division bench has held that the
power under Order 39 Rule 11 is discretionary and it is
not mandatory for the court in every case to pass such
order. I find that the impugned order proceeds on the
erroneous assumption that breach of the order recalling a
witness would entail consequences under Order 39 Rule 11
of the Code of Civil Procedure when, in fact, this may 
only result in the Court drawing appropriate adverse
inference (in the event the witness remains absent). In
the facts and circumstances of the case, I find that the
impugned order cannot be sustained and will have to be
set aside.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 711 OF 2015.
Shri Augustinho C. Braganza

 V/s
Shri. Sebastiao C. Braganza

Coram:- C. V. BHADANG, J.

 Pronounced on: 04.05.2016
Citation: 2016(5) ALLMR234

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Principles to be followed by court for striking off defence for disobedience of order of court

The provisions of Order 39 Rule 11(2) of the Civil Procedure Code,
would also have to be taken note of which clearly provides that when sufficient
cause is shown, the Court may hear the parties in defence upon such terms as it
deems fir. The provisions under Order 39 Rule 11(1) of the Civil Procedure Code

are directory in nature. In this connection, the Judgment passed by this Court in
Writ Petition no. 381 of 2013 along with Appeal From Order Nos. 40 of 2013 and
other connected Appeals dated 03.07.2014, in the case of M/s. V. G. Quenim &
Ors. vs Bandekar Brothers Pvt. Ltd. & Ors., at Paras 16, 17, 19 and 20 would be
material which read thus :
“16. On plain reading of sub-section (2) of Order 39
Rule 11 of Civil Procedure Code, I find that in case the
party who has been responsible for the default or
contravention, makes amends for such default or
contravention to the satisfaction of the Court and
shows sufficient cause, the Court may hear the parties
in defence upon such terms as it deems fit. In the
present case, taking note of the fact that it is not in
dispute that the value of the re-constructed bungalow
would exceed the total claim of the Plaintiffs in the said
suits, the breach or contravention, if any, by the
defendants can be said to have been amended.
These aspects have not been considered by the
learned Judge whilst passing the impugned Order. No
doubt, the conduct of the Plaintiffs to demolish the
bungalow without taking any permission from the
Court nor informing the Court to that effect is
deplorable. The defendants ought to have taken
necessary precautions to see that they had taken
appropriate permission from the Court before
embarking into the exercise of demolishing the
construction. In fact the Judgments relied upon by the
learned Counsel appearing for the Plaintiffs clearly
suggests that it is not open to a party to make its own
interpretation of the order to defeat such orders. In the
present case, the defendants are not at all justified to

demolish the construction without informing the Court
what further course of action they wanted to follow
after such demolition. In such circumstances, the
apprehension of the Plaintiffs that the defendants
wanted to breach the orders of temporary injunction
and the undertaking, were well founded. But,
however, in order to suffice the consequences
provided in Order 39 Rule 11 as well as Order 39 Rule
2-A of the Civil Procedure Code there should be willful
disobedience of such orders and the party should
persist in committing such contempt. In the present
case, in the reply filed to the application, the defendant
offered to give a Bank Guarantee covering the value of
the said bungalow. Apart from that, they have clearly
stated that they had no intention not to comply with the
Orders passed by the Court. In this connection, there
is also an apology given by the Defendants. In such
circumstances, considering that the Defendants made
amends to the contravention or the default of the
undertaking, I find that the learned Judge was not
justified to strike off the defence of the defendants and
dismiss the counter claim filed by the Defendants. No
doubt, exercise of such powers under Order 39 Rule
11(2) of the Civil Procedure Code, would have to be
upon terms deemed fit. The terms to be imposed
would be dealt with whilst dealing with the challenge to
the Orders under Order 39 Rule 2-A of the Civil
Procedure Code.
17. The Division Bench of this Court in the
Judgment reported in 2004(1) ALL M. R. 822, in the
case of Ramavatar Surajmak Modi vs. Mulchand

Surajmal Modi, has observed at Para 7 thus :
“7. Rule 11 of Order 39 as introduced
by the Bombay amendment provides for
a procedure on parties defying orders of
the Court and/or committing breach of
any undertaking to the Court. We are
concerned with the question whether
sub-rule (1) of Rule 11, Order 39 leaves
no discretion on the Court and that it
obliges the Court to visit the defaulting
party with the penalty prescribed therein
irrespective of the circumstances that
default is not willful or the conduct of the
party responsible for the default is not
contumacious or there is reasonable
explanation for default. The meaning
and intention of the rule making authority
must govern, and these are to be
ascertained not only from the
phraseology of the provision but also by
considering its nature, its design, and
the consequences which would follow
from construing it the one way or the
other. Inter alia the courts have applied
the test whether the object of the
provision will be defeated or furthered by
holding the provision mandatory or
directory. Let us not forget that the
dismissal of suit or proceeding or striking
out the defence of a defendant for noncompliance
of the Courts order or

breach of an undertaking is serious and
grave consequence. By making
provision of serious penalty of dismissal
of suit or striking out the defence against
the party responsible for default, the rule
making authority did not intend to leave
no discretion to the Court. The object of
the provision of Order 39, Rule 11(1) is
not defeated if it is held to be directory
as the Court can in its discretion for
adequate reasons visit the defaulting
party with the penalty envisaged therein.
On the other hand if the provision is held
mandatory, the Court "shall" be left with
no discretion and peremptorily shall
have to dismiss the suit where the
plaintiff is responsible for the default or
to strike off the defence when the
defendant is guilty of default even
though the default is not found willful or
conduct of such party not obstinate or
contumacious. In our considered view,
the provision in sub-rule (1) merely vests
power in the Court to dismiss the suit or
proceeding where the default is by the
plaintiff and strike off the defence of the
defendant where the defaulter is the
defendant. It does not obligate to do so
in every case of default. This is further
fortified by the provision contained in
sub-rule (2) which gives a discretion to
the Court that even after the order

contemplated under the sub-rule (1) of
Rule 11 has been passed, upon
sufficient cause being shown by the
party responsible for the default or
contravention or breach and such party
makes amend for the default or
contravention or breach to the
satisfaction of the Court, the Court may
restore the suit or hear the defence on
such terms and conditions it deems fit. If
the Court has power to restore the party
to the same position even after the
adverse order has been passed under
sub-rule (1) of Rule 11 if the case is
made out under sub-rule (2), the
provision of sub-rule (1) has to be held
to be directory and not imperative. The
provision in the nature of sub-rule (2)
leaves no manner of doubt the intention
of the rule making authority that the
provision of sub-rule (1) of Rule 11 is
directory and that by such provision
power has been vested in the Court to
dismiss the suit or proceeding where the
plaintiff is in default or striking off the
defence of the defendant, where
defendant is responsible for the default.
Unfortunately, neither in Ratnakar D.
Patade nor in Smt. Asha M. Joshi, the
learned Judges adverted to sub-rule (2)
of Rule 11 and its effect. The Supreme
Court in (M/s. Babbar Sewing Machine

Co. v. Tirlok Nath Mahajan)6, A.I.R. 1978
S.C. 1436 held that the power of
dismissal of suit or striking out of the
defence under Order 11, Rule 21 of the
Code of Civil Procedure should be
exercised only where the defaulting
party fails to attend the hearing or is
guilty of prolonged or inordinate and
inexcusable delay which may cause
substantial or serious prejudice to the
opposite party. It was further observed
that an order striking out the defence
under Order 1, Rule 21 should be made
unless there has been obstinacy or
contumacy on the part of the defendant
or willful attempt to disregard the order
of the Court to produce the
documents.....

IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NOS. 279, 362 AND 626 OF 2006
WRIT PETITION NO. 279 OF 2006

Sachin Y.Mense, V  Shri Sunil Noronha,

 Coram :- F. M. REIS, J

 Dated  : 16th January, 2015.
Citation:2016(5) ALLMR 146

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Whether appeal is maintainable against order of issue of show cause notice for breach of injunction?

The petitioners had filed a Civil Suit praying for an
injunction against the respondents. On 24 October 2009, an
order was passed by the learned Civil Judge Junior Division,
granting injunction in favour of the petitioners. This order
was confirmed by the District Judge in Misc. Civil Appeal. It is
the case of the petitioners that thereafter the respondent
obstructed the suit pathway. The petitioners accordingly filed
an application under Order XXXIX Rule 2A and 11 of Civil
Procedure Code. The learned Civil Judge heard both sides in
the application and by detailed order came to the conclusion
that the respondent has obstructed the suit pathway and,
accordingly, issued show cause notice to the respondent under
Order XXXIX Rule 11 of the Civil Procedure Code. Thereafter, 
the respondent filed a Misc. Civil Appeal. In this Civil Appeal,
the learned District Judge stayed the order passed by the
learned Civil Judge dated 21 February 2013. The petitioners
took an objection to the maintainability of the appeal which
the learned District Judge which was negatived by the
impugned order.
 The learned Civil Judge by order dated 21 February 2013
had issued a show cause notice to the respondents under Order
XXXIX Rule 11. There is no final order passed by the learned
Civil Judge. Neither Section 104 of the Civil Procedure Code
nor Order XXXXIII Rule 1 contemplate any Misc. Appeal from
issuance of show cause notice under Order XXXIX Rule 11.
The final order is yet to be passed by the learned Civil Judge.
In the circumstances, an appeal to the District Court was
clearly not maintainable.

IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 544 OF 2014

Shri Gajanan Bala Gawas,V Me. Sagun Narayan Morjkar,

Coram:- N. M. JAMDAR, J.
Date:- 18 February 2015
Citation: 2016(2) ALLMR 277

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Whether District Judge can grant stay to show cause notice issued by civil judge under O 39 R 11 of CPC?

 Mr. S.R. Rivankar submitted that in the present case the
conclusion is already reached by the learned Civil Judge and
issuance of show cause notice is mere formality. Though there
may be some substance in the contention of Mr. Rivankar that
the learned Civil Judge has come to a final conclusion but,
there is no final order passed under Order XXXIX Rule 11.
6. The learned District Judge has erred in entertaining the
appeal and granting stay to the proceedings before the Civil
Judge. It is also not clear from the impugned order whether
the learned District Judge has held appeal to be maintainable
or has postponed the decision till the disposal of the appeal.
Either course of action are not correct in law. First the appeal
was not maintainable. Secondly, the learned District Judge
ought to have considered the nature of the proceedings and
what was at stake was allegation of disobedience of the order
of the Court. By grant of stay in an appeal, which is not
maintainable, the proceedings taken out in respect of breach of
judicial order have been scuttled. The appropriate course of
action would be to permit the learned Civil Judge to pass the
final order in the matter and then entertain the appeal from
such final order.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 544 OF 2014
 Shri Gajanan Bala Gawas,

 Versus
Me. Sagun Narayan Morjkar,

Coram:- N. M. JAMDAR, J.
Date:- 18 February 2015
Citation;2016(2) MHLJ 862

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Whether court can dismiss the suit or strike off defence for non production of documents?

 In the instant case, the trial Court had, by an order dated 16-1-2006, directed the appellant Zilla Parishad, Aurangabad to produce certain documents of which a notice to produce the documents was filed on behalf of the plaintiff. The appellant Zilla Parishad, Aurangabad was not able to produce those documents before the Court on the date which was specified in the order. Non-production of the documents, which are directed to be produced in pursuance of a notice, would not entail or result into consequences which are provided under the provisions of Order 39 Rule 11 of the Code of Civil Procedure. The drastic step of striking out the defence of the defendant or the opponent could not be taken merely because the defendant has failed to produce a document which was directed to be produced by the Court. Normally, failure to produce a document which is directed to be produced, would at the most result in drawing an adverse inference against the party who fails to produce it thereby resulting in an advantage to the other party at whose instance the document was sought to be produced on record. However, the Court cannot exercise the jurisdiction under Rule 11 of Order 39 of the Code of Civil Procedure in such a case for either dismissing the suit of the plaintiff or striking out the defence of the defendant or the opponent. To hold that the powers under Order 39 Rule 11 of the Code of Civil Procedure could be invoked in such a case would result in drastic consequences.

Bombay High Court

Zilla Parishad And Anr. vs Punarjanma Rewinders And ... on 31 August, 2006

Equivalent citations: 2006 (6) MhLj 661,2006 BCI234 Bom

JUDGMENT Vasanti A. Naik, J.

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Bombay HC: Striking defence of defendant under Bombay amendment order 39 rule 11 of CPC is directory and not mandatory

Bombay amendment order 39 rule 11. Defying order of court. Consequential striking off defence of defendant is directory not mandatory.

Bombay High Court

Ramavtar Surajmal Modi vs Late Smt. Banarasibai Mulchand ... on 9 January, 2007

Author: D Chandrachud

Bench: R Khandeparkar, D Chandrachud

Citations: AIR 2007 Bom 71, 2007 (109) Bom L R 225

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