Supreme Court: Whether defendant whose defence is struck off is entitled to get copy of amended plaint?

There is something further which must be noted. As can be seen from the record, the Plaintiffs moved an application on 2nd August, 2002 to amend the description of the suit property. The endorsement on the application records that 'the case is proceeding ex parte against the Defendants'. Therefore, a copy of the said application was not served upon the Defendants. As seen from the proceedings, the application was allowed on 2nd August, 2002. Thereafter, the suit was decreed on 24th August, 2002. It is true that before the application for amendment of the plaint was allowed, the Defendants' defence was already struck out. Even if the Defendants' defence was struck out, the Defendants were entitled to a copy of the amended plaint. What was struck out was the right to defend the suit as unamended. Whether the subsequent plaint will affect the earlier order of striking out the defence will depend upon the nature of the amendment. However, even a copy of the amended plaint was not served on the Defendants. {Para 6}

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2394/2023, 

Decided On: 12.09.2024

Ranjit Singh and Ors. Vs. State of Uttarakhand and Ors. 

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka, Ahsanuddin Amanullah and Augustine George Masih, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation: 2024 INSC 724,MANU/SC/1052/2024

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Supreme Court: Courts Cannot Prepone Date Of Hearing Without Giving Notice To Other Party

  When the defendants had appeared in the suit, the act of preponing the date without notice to them or their advocate was completely illegal and contrary to elementary principles of natural justice. Therefore, it follows that the order striking out the defendants' defence is completely illegal, and the said order deserves to be set aside. {Para 5}

 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2394/2023

RANJIT SINGH & ANR. Vs  STATE OF UTTARAKHAND & ORS. 

Author: ABHAY S OKA, J.

Citation: 2024 INSC 724.

Dated: SEPTEMBER 12, 2024.

Read full Judgment here: Click here.

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Supreme court: Defendant Can Cross-Examine Plaintiff Even If Suit Is Proceeding Ex-Parte Against Him & Written Statement Isn't Filed

On 1st July, 2002, the defendants applied for setting aside theorder dated 3rd May, 2002 by which their defence was struck out. The application proceeds on the allegation that on 3rd May, 2002, the Court proceeded to strike out the defendants' defence without giving them an opportunity of being heard and the hearing was conducted ex parte. Very interestingly, a reply was filed to the said application by the plaintiffs in which a stand has been taken that as the suit was directed to proceed ex parte, there was no occasion to give an intimation to the defendants or their counsel that the application will be taken up on 3rd May, 2002. Therefore, it is an accepted position that the application for striking out the defence of the defendants was taken up on the cause list on 3rd May 2002 without issuing notice to the defendants, though on 22nd April, 2002, the next date was already fixed as 30th May 2002.

The application for setting aside the order dated 3rd May, 2002 was rejected. At this stage, we must clarify the legal position. Even if a defendant does not file a written statement and the suit isordered to proceed ex parte against him, the limited defence

available to the defendant is not foreclosed. A defendant can

always cross-examine the witnesses examined by the plaintiff to

prove the falsity of the plaintiff's case. A defendant can always

urge, based on the plaint and the evidence of the plaintiff, that

the suit was barred by a statute such as the law of limitation.

Therefore, notwithstanding an order passed earlier to proceed ex

parte, while deciding an application for striking out the defence,

it was the duty of the Court to give an opportunity of being heard to the defendants. However, that was not done. As the suit was fixed on 30th May, 2002, the defendants were entitled to a notice that the suit would be taken up on an earlier date for hearing the application for striking out the defence. When the defendants had appeared in the suit, the act of preponing the date without notice to them or their advocate was completely illegal and contrary to elementary principles of natural justice. Therefore, it follows that the order striking out the defendants' defence is completely illegal, and the said order deserves to be set aside. {Para 5}

 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2394/2023

RANJIT SINGH & ANR. Vs  STATE OF UTTARAKHAND & ORS. 

Author: ABHAY S OKA, J.

Citation: 2024 INSC 724.

Dated: SEPTEMBER 12, 2024.

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Supreme Court: Procedure to be followed by family court if husband fails to file Affidavit of Disclosure of Assets and Liabilities even after grant of two chances

 The Respondent must submit the reply along with the Affidavit of Disclosure within a maximum period of four weeks. The courts may not grant more than two opportunities for submission of the Affidavit of Disclosure of Assets and Liabilities to the Respondent. If the Respondent delays in filing the reply with the affidavit, and seeks more than two adjournments for this purpose, the court may consider exercising the power to strike off the defence of the Respondent, if the conduct is found to be wilful and contumacious in delaying the proceedings [Kaushalya v. Mukesh Jain, MANU/SCOR/21339/2019 : (2020) 17 SCC 822]. On the failure to file the affidavit within the prescribed time, the Family Court may proceed to decide the application for maintenance on the basis of the affidavit filed by the applicant and the pleadings on record;

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 3446 of 2023 

Decided On: 06.11.2023

Aditi Vs. Jitesh Sharma

Hon'ble Judges/Coram:

Vikram Nath and Rajesh Bindal, JJ.

Author: Rajesh Bindal, J.

Citation: MANU/SC/1220/2023, 2023/INSC/981

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Kerala HC: The Magistrate can strike off the defence for non-compliance of the order of payment of pendente lite maintenance passed under Domestic violence Act

 Section 28(2) of the DV Act provides that the court can

formulate its own procedure for disposal of an application under

Sections 12 or 23(2) of the DV Act. The flexibility has been given

to the court as the proceedings under Sections 12 and 18 to 23

provide civil remedies whereas S.31 provides a criminal offence.

The Apex Court in Kunapareddy (supra) considered the nature

of proceedings under the DV Act and held that S.28(2) empowers

the court to lay down its own procedure and the Magistrate

dealing with the DV Act is empowered to allow the amendment of the application. Thus, it is clear that even though S.28(1) of the

DV Act provides that all proceedings under Ss.12 and 18 to 23

and for the offence under Section 31 shall be governed by the

provisions of Cr.P.C., the court can still lay down its own

procedure while dealing with the applications under sub-section

(1) of Section 12 or while considering the grant of interim or ex

parte ad interim relief orders under sub-section (2) of Section 23.

In view of the nature of the proceedings under the DV Act and the procedural flexibility provided under sub-section (2) of Section 28 in deciding the applications under Sections 12 or 23(2), it cannot be said that Court is bound to strictly abide by the provisions of Cr.P.C in all cases. In appropriate cases, it would be open to the court to formulate its own procedure as may be found necessary in the interest of justice, in which event, the court may not have to rely upon Cr.P.C. Thus, the court below went wrong in holding that it has no power to strike off the defence for the reason that the procedure to be followed in the proceedings under Sections 12 and 18 to 23 is that provided under Cr.P.C. {Para 11}

12. The Apex Court in Rajnesh v. Neha and Another

(2020 (6) KHC 1) referring to the judgments of the High Court on the point upheld the power of the court to strike off the defence if there was non-compliance with the order of payment of maintenance. It was, however, held that striking off the defence

is an order which ought to be passed in the last resort, if the

court finds default to be wilful and contumacious, particularly to a

dependent unemployed wife and minor child. The Division Bench

of this Court recently in Shyju v. Nadeera (2021(5) KLT 693) has

held that the Family Court can strike off the defence on failure to

pay interim maintenance ordered by the court where the default

is found to be wilful. For all these reasons, I hold that in a

proceeding under the DV Act, the defence can be struck off for

non-compliance with an order of payment of pendente lite

maintenance if the default is found to be deliberate and wilful.

However, such an order ought to be passed only as a last resort

as held in Rajnesh (supra).

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

 DR. JUSTICE KAUSER EDAPPAGATH

 OP(CRL.) NO. 226 OF 2022

NEETHU Vs  TRIJO JOSEPH, 

Dated this the 16th day of June, 2022

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Whether appellate court can strike off the defence of tenant if he fails to deposit rent as directed by court as per O 15A of CPC?

As far as maintainability of the application is concerned, in my

view, Order 15A

of the Code of Civil Procedure can be invoked at the

appellate stage also in view of the provisions of Section 107(2) of the Code

of Civil Procedure. In any case, the appellate Court can exercise jurisdiction

under Section 151 of the Code of Civil Procedure in such situation for the

ends of justice.

The learned District Judge has failed to exercise jurisdiction

vested in him by rejecting the prayer of the petitioner to strike off the

defence of the respondent Nos. 1 and 2.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO. 7007 OF 2016

Santosh @ Ambadas Jayendra Vs   M/s. Khemka Automobiles,

CORAM : Z.A.HAQ, J.

DATED : DECEMBER 20, 2017.

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Whether landlord can execute order of grant of interim rent even though defence of tenant is struck off?

 The impugned order was passed by the Court under Order 15-A of the Code of Civil Procedure directing the defendant to pay rent and deposit arrears. No fault can be found with such a direction. In this case, the defendant failed to obey the order and failed to deposit the arrears. The consequence of such failure is given in the same Rule 1 of Civil Procedure Code. The Rule says that if such order is not obeyed, the defence shall be struck out. The learned Counsel for the applicant/plaintiff contended that striking out of defence is a mode of enforcement while execution by attachment is mode of satisfaction. In 1999 (1) SCC 405, Smt. Kuldip Kaur v. Surinder Singh, it is observed as follows:

6. A distinction has to be drawn between a mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly allowance which has fallen in arrears on the other. Sentencing a person to jail is a 'mode of enforcement'. It is not a 'mode of satisfaction' of the liability. The liability can be satisfied only by making actual payment of the arrears. The whole purpose of sending to jail is to oblige a person liable to pay the monthly allowance who refuses to comply with the order without sufficient cause, to obey the order and to make the payment. The purpose of sending him to jail is not to wipe out the liability which he has refused to discharge. Be it also realized that a person ordered to pay monthly allowance can be sent to jail only if he fails to pay monthly allowance 'without sufficient cause' to comply with the order. It would indeed be strange to hold that a person who 'without reasonable cause' refuses to comply with the order of the Court to maintain his neglected wife or child would be absolved of his liability merely because he prefers to go to jail. A sentence of jail is no substitute for the recovery of the amount of monthly allowance which has fallen in arrears.

6. Therefore, even though the remedy by way of striking out of defence is available, that does not deprive the plaintiff to resort to mode of satisfaction. Ordinarily, therefore, an order can be executed for satisfaction. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Rev. Appln. No. 1193 of 1999

Decided On: 13.03.2007

Gwaldas Shivkisanji Lakhotia Vs. Bapurao Arjunji Bandabuche

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Question and answer on law(Part 2)

1) What is purpose of  levy of court fees?
a) To meet huge expenditure of administration of justice.
b) To curb increasing tendency to file frivolous,false or malicious cases in court.
c) To ensure collection of revenue.

2) Whether there is any provision in legal services authorities Act about court fees?

S 21 of Legal services authorities Act:- Award of Lok Adalat.- (1) Every award of Lok Adalat shall be deemed to be a decree of a Civil Court or, as the case may be, an order of any other Court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under sub-section (1) of section 20, the Court-fee paid in such case shall be refunded in the manner provided under the Court-Fee Act, 1870 (7 of 1870)

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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

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Whether court can strike off defence of party if he fails to appear before mediator?

The reading of the above provision makes it very clear that neither Section 89 of Code of Civil Procedure nor Order 10 Rule 1-A nor the Karnataka (Case Flow Management in Sub-ordinate Courts) Rules 2005 nor the Karnataka Code of Civil Procedure (Mediation) Rules 2005 provide for striking of the defence for non-appearance of the parties before the Mediator. Only Sub-rule (2) of Rule 13 of the Karnataka Code of Civil Procedure (Mediation) Rules 2005 contemplates that the Court may impose cost for non-appearance of the parties before the Mediator. Hence, I am of the view that the order passed by the Learned Civil Judge striking off the defence of Defendants 1 to 3 is contrary to law and Rules referred above. If the parties fail to appear before the Mediator, the Court may impose some penalty fixing some other date to appear before the Mediator and accordingly the order passed by the Learned Civil Judge striking off the defence of the Defendants is liable to be set aside.

IN THE HIGH COURT OF KARNATAKA

W.P. No. 2208/2009 (GM- CPC)

Decided On: 16.04.2010

 Rudraaradya Vs.  Nanjundappa @ Nanjundaswamy and Anr.

Hon'ble Judges/Coram:

B. Manohar, J.

Citation: ILR 2011Kar 221

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Whether court can direct occupant to deposit damages if it is not proved that he is tenant?

A plain reading of the aforesaid provision would make it manifest that for application of the Order XV-A, it must be a suit by a lessor or a licensor against a lessee or a licensee. In the present case, the respondents did not approach the trial Court with a case that they are lessors. They did not state the rate of rent agreed between the parties. They did not assert that the tenancy of the petitioner was attorned in their favour. They are the purchasers of the house property and as such the earlier existing tenancy would stand attorned if the appropriate communication is made to the tenant. The case of the respondents is that the petitioner has encroached over one of the room and had occupied another room by consent of the previous owner. The provision of Order XV-A would come into play only when there is prima facie evidence to show that the rent or licence fees was agreed between the parties and a particular sum could be charged as a liability. The next significant aspect is that the learned trial Court further passed order of striking off the defence of the petitioner on account of non-compliance of the impugned order. For this purpose, Sub-rule (2) of Order XV-A is required to be considered. It is conspicuous that before passing order for striking off the defence, the Court shall serve notice on the defendant or his Advocate to show cause as to why the defence should not be struck off, and the Court shall consider any such cause shown in order to decide as to whether the defendant should be relieved from the order striking off the defence. Thus, the legislature has offered second opportunity to the defendant before striking off the defence and has afforded right of hearing. Such a person can show cause as to why the order could not be complied with and in that case, after application of judicial mind, the Court has discretion to relieve such a person from such an order of striking off the defence. Needless to say, the striking off the defence is not automatic only because of non depositing of the amount as directed by the Court. The defence cannot be so lightly struck off as has been done in the present case.

These observations of the trial Court would show that the trial Court was unmindful to the pleadings of the parties. The respondents/plaintiffs were not praying that the defendant shall be directed to deposit Rs. 36,000/- towards arrears of rent. What they prayed was that amount of compensation and damages for use and occupation of the premises shall be directed to be deposited. It was necessary for the trial Court to first determine, prima facie, whether there exists relationship of lessor and lessee between the parties and then to determine quantum of rent agreed between them. Without undertaking such exercise, the trial Court proceeded to assume that amount of Rs. 36,000/- is due from the petitioner. 

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 100 of 2006

Decided On: 17.10.2006

Radheshyam  Vs. Tuljaprasad and Ors.

Hon'ble Judges/Coram: 

V.R. Kingaonkar, J.

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Procedure to be followed by court if tenant fails to deposit rent in accordance with order passed by U/ 15A of CPC

Sub-rule (1) of Order 15-A as amended applies to a suit by a lessor against a lessee or a licensor against a licensee for eviction with or without the arrears of rent or licence fee and future mesne profits. In such a suit, the Court is empowered to direct the defendant to deposit such amount as the Court may direct on account of arrears upto the date of the Order and thereafter to continue to deposit in each succeeding month the rent or licensee fee claimed in the suit as the Court may direct. Sub-rule (1) provides that the defendant shall unless otherwise directed continue to deposit such amount till the decision of the suit. The legislature was clearly conscious of the necessity of requiring the tenant or, as the case may be, a licensee to deposit such an amount as the Court may direct towards arrears payable on account of his occupation and to protect the interest of the landlord by requiring that future deposits of the amount of rent or the licence fee must also be made. In the absence of such a provision, the landlord would have to suffer the hardship of awaiting a final decision of the suit for eviction before any amount would be recovered. This was obviated by conferring upon the Court, the power to pass an appropriate interim order. Even in the absence of such a provision, the hardship which was liable to be suffered by the landlord has been sought to be obviated by the decision of this Court in Sangeeta Prints (supra) by taking recourse to the provisions of Order 39, Rule 10 and section 151 of the Code. Having regard to the salutary object underlying the provisions, the proviso to sub-rule (1) envisages certain consequence emanating from a non-compliance of the order of deposit. The proviso stipulates that in the event of a default in making deposit as decided, the Court may, subject to the provisions of sub-rule (2), strike off the defence. Undoubtedly, before striking off the defence, sub-rule (2) provides that a notice has to be issued to the defendant to show cause and the cause, if any, shown has to be considered in order to decide as to whether the defendant should be relieved of a peremptory order striking off the defence. Sub-rule (2) in turn indicates that unless the Court is of the view that there are valid circumstances as to why the defendant should be relieved of an order striking off his defence, ordinarily the defence would be liable to be struck off upon a failure of compliance with an order of deposit. In these circumstances, there can be no gainsaying the fact that an order passed under sub-rule (1) is an order of moment and is liable to seriously effect the rights of the parties. A defendant who does not comply with the order of deposit, cannot be relieved of the striking off of his defence unless he shows sufficient cause. In these circumstances, it cannot be said that an order under sub-rule (1) of Order 15-A is merely a procedural order and is not subject to a revision under sub-section (4) of section 42 of the Act. In the present case, a revision is maintainable. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1079 of 2003

Decided On: 08.09.2003

 Colaba Central Co-operative Consumer Wholesale and Retail Stores Ltd. alias Sahakar Bhandar

Vs.

 Kusumben Kantilal Shah and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, J.

Citation: 2003(4)ALLMR304; 2004(1)BomCR547

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Whether revision is maintainable against order of striking off defence in default of payment of rent?

Even in the absence of such a provision, the hardship which was liable to be suffered by the landlord has been sought to be obviated by the decision of this Court in Sangeeta Prints (supra) by taking recourse to the provisions of Order 39, Rule 10 and section 151 of the Code. Having regard to the salutary object underlying the provisions, the proviso to sub-rule (1) envisages certain consequence emanating from a non-compliance of the order of deposit. The proviso stipulates that in the event of a default in making deposit as decided, the Court may, subject to the provisions of sub-rule (2), strike off the defence. Undoubtedly, before striking off the defence, sub-rule (2) provides that a notice has to be issued to the defendant to show cause and the cause, if any, shown has to be considered in order to decide as to whether the defendant should be relieved of a peremptory order striking off the defence. Sub-rule (2) in turn indicates that unless the Court is of the view that there are valid circumstances as to why the defendant should be relieved of an order striking off his defence, ordinarily the defence would be liable to be struck off upon a failure of compliance with an order of deposit. In these circumstances, there can be no gainsaying the fact that an order passed under sub-rule (1) is an order of moment and is liable to seriously effect the rights of the parties. A defendant who does not comply with the order of deposit, cannot be relieved of the striking off of his defence unless he shows sufficient cause. In these circumstances, it cannot be said that an order under sub-rule (1) of Order 15-A is merely a procedural order and is not subject to a revision under sub-section (4) of section 42 of the Act. In the present case, a revision is maintainable. There is hence no necessity for this Court to go into the challenge urged on behalf of the petitioner on the merits of the order.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1079 of 2003

Decided On: 08.09.2003

 Colaba Central Co-operative Consumer Wholesale and Retail Stores Ltd. alias Sahakar Bhandar

Vs.

 Kusumben Kantilal Shah and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, J.

Citation: 2003(4)ALLMR304; 2004(1)BomCR547

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Whether court can strike off defence if defendant commits default in deposit of license fee in eviction suit?

In the present case there is no question of any claim of arrears being barred by the law of limitation. Under Order XXXIX Rule 11 which is introduced in the Civil Procedure Code by Rules made by the Bombay High Court in 1983, "where the Court orders any party to a suit............to do or not to do a thing during the pendency of the suit,.................and such party commits any default in respect of or contravenes such order.............the court may............strike out the defence if the default............is committed by the defendant..........." Hence the Small Cause Court also has power to order the striking off of defence if the defendant commits defaults in depositing license fee.

IN THE HIGH COURT OF BOMBAY

Writ Petn. No. 3870 of 1984

Decided On: 03.05.1985

Sangeeta Prints Vs Hemal Prints and Ors.

Hon'ble Judges/Coram:

S.V. Manohar, J.

Citation: AIR 1986 423

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Whether court will reject counter claim if it has effect of striking of defence?

Sub-rule (4) of Rule 6-A of Order VIII CPC states that the counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. But it does not mean that it is no more a written statement. It is also a written statement to which Order VIII CPC applies, even while Order VII CPC is made applicable to a part of the same.

12. In fact, Rule 6-C of Order VIII CPC gives a right to the plaintiff to seek an order to exclude the counter-claim on the ground that the counter-claim ought not to be disposed of except by way of an independent suit.

13. Therefore, the counter-claim is not exactly the same as a plaint, despite having the traits of a plaint, since the same is raised in a written statement. The scheme of Order VIII, Rules 6-A to 6-G CPC itself recognises the fact that there could be two different scenarios, one where the counter-claim could be inextricably intertwined with the defence and another where it is capable of being prosecuted as an independent suit (as provided in Order VIII, Rule 6-C, CPC).

14. Therefore, in addition to the parameters provided in Order VII, Rule 11 CPC, the Court may also have to examine while dealing with a prayer for rejection of the counter-claim, as to whether the rejection of the counter-claim would have the effect of striking off the defence or rendering the defendant defenceless.

15. It must be remembered that at the stage of invoking Order VII, Rule 11 CPC, the Court is not concerned with the merits of the claim. But while dealing with a written statement, the Court will certainly be considering the merits of the claim.

16. In the case on hand, the suit is one for eviction. The defence raised by the defendant is that he is entitled to have a lease deed executed and registered for a period of 25 years from 16-7-2005. The document accompanying the counter-claim appears to be an unstamped and unregistered document. If the counter-claim is taken up for trial, we do not know whether the said document will be allowed to be marked in evidence at all, in view of the recitals contained therein and the document not being duly stamped and registered. We do not even know whether the defendant can actually secure a decree directing the plaintiffs to execute and register a lease deed for a period of 25 years with effect from 16-7-2005, especially in the light of the limitations imposed by the Registration Act, 1908 to the registerability of a document executed several years ago.

17. But all the above are on the merits of the case. That the counter-claim raised is so weak and eventually can only be thrown out, may not be a ground to invoke Order VII, Rule 11 CPC, especially when the defence to the suit, depends for its survival upon the counter-claim.

18. Therefore, the substantial question of law raised in the above second appeal is answered to the following effect:

(i) Wherever the defence to a suit can survive even if the counter-claim goes, then the Court will be entitled to invoke Order VII, Rule 11 CPC and reject the counter-claim.

(ii) Wherever the defence to the suit is so intertwined with the counter-claim that the rejection of the counter-claim will have the effect of killing the defence to the suit, the Court cannot invoke Order VII, Rule 11 CPC to reject the counter-claim.

In the High Court of Andhra Pradesh

(Before V. Ramasubramanian, J.)

Jinendra Jewellers, v.  B. Venkateswara Rao, S/o late 

Second Appeal No. 896 of 2017

Decided on December 15, 2017

Citation: 2017 SCC OnLine Hyd 442 : (2018) 1 ALT 732 : (2018) 2 ALD 149

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Precaution to be taken by court while deciding application for rejection of counter claim

 But all the above are on the merits of the case. That the counter-claim raised is so weak and eventually can only be thrown out, may not be a ground to invoke Order VII, Rule 11 CPC, especially when the defence to the suit, depends for its survival upon the counter-claim.

18. Therefore, the substantial question of law raised in the above second appeal is answered to the following effect:

(i) Wherever the defence to a suit can survive even if the counter-claim goes, then the Court will be entitled to invoke Order VII, Rule 11 CPC and reject the counter-claim.

(ii) Wherever the defence to the suit is so intertwined with the counter-claim that the rejection of the counter-claim will have the effect of killing the defence to the suit, the Court cannot invoke Order VII, Rule 11 CPC to reject the counter-claim.

In the High Court of Andhra Pradesh

(Before V. Ramasubramanian, J.)

Jinendra Jewellers, Rep. by its Proprietor Kushal Raj, 

v.

 B. Venkateswara Rao, 

Second Appeal No. 896 of 2017

Decided on December 15, 2017

Citation: 2017 SCC OnLine Hyd 442

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Procedure to be followed by court if order of discovery of documents is not complied

 Even assuming that in certain circumstances the provisions of Order XI, Rule 21 must be strictly enforced, it does not follow that a suit can be lightly thrown out or a defence struck out, without adequate reasons. The test laid down is whether the default is wilful. In the case of a plaintiff, it entails in the dismissal of the suit and, therefore, an order for dismissal ought not be made under Order XI, Rule 21, unless the court is satisfied that the plaintiff was wilfully withholding information by refusing to answer interrogatories or by withholding the documents which he sought to discover. In such an event, the plaintiff must take the consequence of having his claim dismissed due to his default, i.e. by suppression of information which he was bound to give : Denvillier v. Myers. (1883) WN 58. In the case of the 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 Order XI, Rule 21, 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.

16. It is well settled that the stringent provisions of Order XI, Rule 21 should be applied only in extreme cases, where there is contumacy on the part of the defendant or a wilful attempt to disregard the order of the court is established.

17. An order striking out the defence under Order XI, Rule 21 of the Code should, therefore, not be made unless there has been obstinacy or contumacy on the part of the defendant or wilful attempt to disregard the order of the court. The rule must be worked with caution, and may be made use of as a last resort .

 It was further contended that the High Court was in error in observing that 'in view of the clear language of Order XI, Rule 21' the defendant has no right to cross-examine the plaintiff's witnesses. A perusal of Order XI, Rule 21 shows that where a defence is to be struck off in the circumstances mentioned therein, the order would be that the defendant 'be placed in the same position as if he has not defended'. This indicates that once the defence is struck off under Order XI, Rule 21, the position would be as if the defendant had not defended and accordingly the suit would proceed ex-parte. In Sangram Singh v. Election Tribunal MANU/SC/0044/1955 : [1955]2SCR1 it was held that if the court proceeds ex-parte against the defendant under Order IX, Rule 6(a), the defendant is still entitled to cross-examine the witnesses examined by the plaintiff. If the plaintiff makes out a prima facie case the court may pass a decree for the plaintiff. If the plaintiff fails to make out a prima facie case, the court may dismiss the plaintiff's suit. Every Judge in dealing with an ex-parte case has to take care that the plaintiff's case is, at least, prima facie proved.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2126 of 1978

Decided On: 07.08.1978

Babbar Sewing Machine Company Vs. Trilok Nath Mahajan

Hon'ble Judges/Coram:

A.N. Sen, D.A. Desai and Jaswant Singh, JJ.

citations: 1978 AIR 1436, 1979 SCR (1) 57

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When order of striking off defence of tenant for non payment of rent amount is liable to be set aside?

The third aspect is that between the date of the order dated 21st April, 2008 Under Section 15(1) of the Act till February, 2009 the Petitioner had made further payments of rent. One of these payments was made on 27th June, 2008 while the second payment was made on 17th December, 2008. These payments represented rent for a period of six months. This means that the Petitioner had paid advance rent upto 31st August, 2009. Not only that, the Petitioner had made two further deposits, one on 1st May, 2009 and the second on 5th May, 2009. These payments when taken into consideration cleared the entire rent liability of the Petitioner for a period of one year and nine months commencing from 1st September, 2009 onwards. If that be so the Petitioner was not in default on the date of the order passed by the Trial Court striking out his defence and for a considerable period beyond that. The Petitioner has in the special leave petition referred to certain subsequent payments also but we consider it unnecessary to go into those details. What is important is that as on the date of the order passed by the Trial Court on 21st April, 2008 itself the entire arrears directed to be deposited by the Petitioner stood paid by him and so also on the date of the order passed by the Trial Court striking out his defence, rent for the entire intervening period and even beyond had been paid. These payments may require reconciliation, calculations and suitable adjustments against the months for which rent was payable but what cannot be disputed is that the amount which the Petitioner was called upon to pay and which he has, pursuant to the direction of the Trial Court, paid or deposited has been at all relevant points of time in excess of what was payable to the landlord. The charge of contumacious failure and deliberate default in making the payment levelled against the tenant is, therefore, not well-founded. The Petitioner on the contrary was at all points of time keen to pay the amount of rent in excess of what was lawfully due. This may have been partly because of the consequences that flow from nonpayment and partly because the amount of contractual rent is, by the current standard of market rent, very meagre. The withholding of such a meagre amount was a risk that no prudent tenant protected under the Rent Control law of the land could take nor was it a case where by withholding the kind of amount which was due towards rent would have in any manner benefited the tenant, just as the same would not have deprived the landlord of any major financial income from the property let out by him. It is true that just because the amount payable for the premises is low and payment or non-payment thereof makes little difference to either the tenant or the landlord, is no reason for the tenant not paying the rent as and when due. The question, however, is not whether the denial of the amount would have caused any major prejudice to the landlord or put the tenant under any financial burden. The question is whether the tenant was guilty of contumacious conduct in withholding such payment. While answering that question, the amount of rent payable for the premises may be a factor which cannot be totally brushed aside. Suffice it to say that the facts and circumstances of the case at hand do not, in my opinion, suggest any negligence, defiance or contumacious nonpayment of the amount due to the landlord to warrant the taking of that "exceptional step" which is bound to render the tenant defenceless in his contest against the landlord.

36. It is noteworthy that in the course of hearing before us, learned Counsel for the Petitioner-tenant had offered to raise rent by ten times of the current amount and pay the same in advance for a period of five years to show his bona fides. From the point of view of the landlords this may be seen as a damage control desperate bid to avoid eviction by winning the sympathy of the Court but from the point of view of the tenant it only shows that the tenant does not grudge the landlord getting what is legitimately due to him. The cumulative effect of all these circumstances, in my view, entitles the tenant to an opportunity to contest the suit for eviction. It is a different matter that the contest may eventually result in his eviction but there is no need to prejudge the matter on merits nor any valid reason to deprive the tenant-Petitioner the bare minimum opportunity to contest the eviction petition on merits.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4563 of 2014 (Arising out of S.L.P. (C) No. 26941 of 2011)

Decided On: 16.04.2014

 Dina Nath (D) by L.Rs. and Anr.Vs. Subhash Chand Saini and Ors.

Hon'ble Judges/Coram:
T.S. Thakur and J.S. Khehar, JJ.
Citation:(2014) 11 SCC 20;

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When court should not strike off defence for non payment of rent amount?

 In Shyamcharan Sharma (supra), the Supreme Court while
considering Section 13(6) of the Act of 1961 has held in no
uncertain terms that Section 13(6) of the Act of 1961 is
discretionary in nature and court has power under Section 13(6) to
condone delay in depositing rent and condensely crystallized as
under: -
"4. ... Section 13(6) does not clothe the landlord
with an automatic right to a decree for eviction; nor
does it visit the tenant with the penalty of a decree for
eviction being straightway passed against him.
Section 13(6) vests, in the court, the discretion to order
the striking out of the defence against eviction. In
other words, the court, having regard to all the
circumstances of the case, may or may not strike out
the defence. If Section 13 were to be construed as
mandatory and not as vesting a discretion in the court,
it might result in the situation that a tenant who has
deposited the arrears of rent within the time stipulated
by Section 13(1) but who fails to deposit thereafter the
monthly rent on a single occasion for a cause beyond
his control may have his defence struck out and be
liable to summary eviction. We think that Section 13
quite clearly confers a discretion, on the court, to strike
out or not to strike out the defence, if default is made in
deposit or payment of rent as required by Section
13(1). If the court has the discretion not to strike out
the defence of a tenant committing default in payment
or deposit as required by Section 13(1), the court
surely has the further discretion to condone the default
and extend the time for payment or deposit. Such a
discretion is a necessary implication of the discretion
not to strike out the defence. Another construction
may lead, in some cases, to a perversion of the object
of the Act, namely, 'the adequate protection of the
tenant'. Section 12(3) entitles a tenant to claim
protection against eviction on the ground specified in
Section 12(1)(a) if the tenant makes payment or
deposit as required by Section 13. On our
construction of Section 13 that the court has the power
to extend the time for payment or deposit, it must
follow that payment or deposit within the extended time
will entitle the tenant to claim the protection of Section
12(3). One of the arguments advanced before us was
that there was no express provision for extension of
time for deposit or payment of monthly rent
subsequent to the filing of the suit whereas there was
such express provision for payment or deposit of
arrears of rent that had accrued before the filing of the
suit. Obviously, express provision for extension of
time for deposit or payment of rent falling due after the
filing of the suit was not made in Section 13(1) as the
consequence of non-payment was proposed to be
dealt with by a separate sub- section, namely Section
13(6). Express provision had to be made for extension
of time for deposit or payment of rent that had accrued
prior to the filing of the suit, since that would ordinarily
be at a very early stage of the suit when a written
statement might not be filed and there would,
therefore, be no question of striking out the defence
and, so, there would be no question of Section 13(6)
covering the situation."
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (Art. 227) No.152 of 2016
Pawan Verma,
V
Sanjay Kumar Hanumanta, 
Hon'ble Shri Justice Sanjay K. Agrawal
Dated: 15/11/2016
Citation: AIR 2017(NOC) 138 Chh

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When defence of husband is liable to be struck off for non payment of arrears of maintenance?

 It is sought to be contended by the learned counsel for the respondent-husband that there is no prejudice caused to the appellant-wife. The said contention deserves to be rejected for more than one reason. The order dated 4th September 2014 was passed on the request made by respondent-husband after the appeal preferred by appellant-wife was substantially heard. As a result of representation made by respondent-husband that order dated 4th September 2014 was passed. Even today, the appeal of the year 2007 filed by the appellant-wife has not been decided. Thus, the conduct of the respondent-husband has led to inordinate delay in disposal of the appeal. We may also note here the averments made in paragraph 8, which read thus :

"8. In the circumstances mentioned hereinabove, the Respondent could not comply with the order of this Honourable Court dated 4.9.2014 nor could comply with the undertaking given to this Honourable Court."

We may also note here that it is not as if that the respondent-husband was not interested in contesting the matter. Though the respondent-husband did not appear before the Family Court, he has filed objections dated 30th February 2015.

15. Though, as of today, arrears payable in terms of order dated 4th September 2014 are approximately Rs. 30 lakhs, between 4th February 2016 and till today, no further amount has been paid by the respondent-husband.

16. Considering the conduct of the respondent-husband, there is absolutely no justification for not complying with the undertaking given to this Court to pay maintenance to the appellant-wife @ Rs. 40,000/- per month. The said gross breach is wilful and deliberate. Therefore, this is a fit case to invoke the power of this Court under Rule 11 of Order XXXIX of the Code. The defence of the Respondent-husband in Family Court Appeal No. 95 of 2007 deserves to be struck out and the objections filed by the respondent-husband under Rule 26 of Order XLI of the Code deserve to be dismissed. Needless to state that this action will be in addition to the action under Contempt of Courts Act, 1971.

IN THE HIGH COURT OF BOMBAY

Family Court Appeal No. 95 of 2007,

Decided On: 21.03.2016

Sneha Sachin Dhuri 

Vs.

 Sachin Dinanath Dhuri

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and P.D. Naik, JJ.

Citation: 2017(2) ALLMR 361

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