An order striking out the defence under Order XI, Rule 21 of the Code should not be made unless the defendant’s wilful attempt to disregard the order of the court

In the present case Hon’ble Delhi High Court has held that 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.

IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : CODE OF CIVIL PROCEDURE

I.A. No. 895/2013 in CS (OS) 1804/2008

Reserved on: 29th August, 2013

Decided on: 12th September, 2013

SHRAVAN KUMAR GUPTA ….. Plaintiff

Through: Mr. Abhay Mani Tripathi, Advocate.

versus

TARA CHAND GUPTA & ORS ….. Defendants

Through: Mr. Shiv Charan Garg, Mr. Shashank Mittal and Mr. Imran Khan, Advocates for Defendant Nos. 1 (a), 2 and 3.

CORAM: HON’BLE MS. JUSTICE MUKTA GUPTA

I.A. No. 895/2013 (by Defendant Nos. 1 to 3 u/Order XI Rule 21 CPC)

  1. By this application under Order XI Rule 21 CPC the Defendants seek dismissal of the suit due to non-compliance of order dated 18th September, 2012 passed by the learned Joint Registrar directing the Plaintiff to reply the interrogatories.
  2. Learned counsel for the Defendant Nos. 1 (a), 2 and 3 contends that the Defendants/applicants sent a notice for interrogatories vide letter dated 19th September, 2012 by Registered Post through their counsel which was duly served on the Plaintiff, however no reply to the said interrogatories were received within the stipulated period as warranted vide order dated 18th September, 2012. Since the Plaintiff has intentionally not complied with the direction issued by this Court, the suit is liable to be dismissed. It is further contended that under Order XI Rule 4 CPC interrogatories are required to be sent in Form-2 in Appendix–C with such variations as circumstances may require. A perusal of Appendix-C Form-2 shows that the only requirements are that the title of the suit has to be given followed by the request for interrogatories and the interrogatories. It is contended that vide the notice dated 19th September, 2012 learned counsel for the Defendants/applicants clearly mentioned the details of the suit and the order required to be complied with. The interrogatories sought to be replied were also recited. Hence necessary compliance under Order XI Rule 4 CPC was made and the only ground taken by the Plaintiff that the interrogatories were not in proper format is liable to be rejected. Reliance is placed on Maria Margarida Sequeira Fernandes and others vs. Erasmo Jack De Sequeira (Dead) through LRs, 2012 (5) SCC 370 to rely on the directions of the Hon’ble Supreme Court that the judicial officers and judges should adhere to Section 30 CPC in ascertaining the truth and the lawyers must ensure that the truth triumphs in the administration of justice.
  3. Learned counsel for the Plaintiff on the other hand contends that the notice issued by the learned counsel for the Defendants/applicants was not in the form prescribed under Order XI Rule 4 and thus the Plaintiff was not obliged to reply the same. Reliance is placed on Emperor vs. Khwaja Nazir Ahmad, AIR 32 (1945) PC 18 to contend that if an act is required to be done in a particular manner as per the statute then it has to be done in the same manner. Reliance is also placed on Bhikraj Jaipuria vs. Union of India, AIR 1962 SC 113 (Constitution Bench); Babbar Sewing Machine Company vs. Trilok Nath Mahajan, 1978 (4) SCC 188; Atma Ram Properties (P) Ltd. vs. Escorts Ltd., 2012 (188) DLT 126 and Shambhu Dutt Dogra vs. Shakti Dogra and others, 2012 (192) DLT 539 to contend that where a statute prescribe the manner in which the act is to be performed but does not set out the consequence of non-compliance, the question whether the provision is mandatory or directory has to be adjudged in the light of intention of the legislature as disclosed by the object, purpose and scope of the statute. If the statute is mandatory, the thing done not in the manner or form prescribed can have no effect or validity; if it is directory, penalty may be incurred for non-compliance, but the act or thing done is regarded as good.
  4. I have heard learned counsel for the parties.
  5. The present application arises from the order dated 18th September, 2012 whereby application being I.A. No. 12359/2010 under Order XI Rule 2 and 14 CPC filed by the applicants/ defendant Nos. 1 (a), 2 & 3 was allowed and the applicants were permitted to serve the interrogatories on the Plaintiff in proforma under Order XI Rule 4 CPC within one week vide order dated 18th September, 2012. Pursuant thereto the learned counsel for the Defendant/applicants sent the following letter to the Plaintiff:

“By hand/Post Dated- 19.09.2012

To

Shri Shravan Gupta

S/o Late Shri Tara Chand Gupta

R/o House No. D-163,

Second Floor, Kamla Nagar,

Delhi-110007.

NOTICE UNDER ORDER XI RULE 4, OF THE CODE OF CIVIL PROCEDURE, 1908 FOR GIVING REPLY TO INTERROGATIONS AND PRODUCTION OF DOCUMENTS.

Sir,

Under instructions from and on behalf of my clients (i) Smt. Prasann Devi w/o Late Shri Tara Chand Gupta, (ii) Shri Satish Kumar Gupta S/o Late Shri Tara Chand Gupta (iii) Smt. Bimla Gupta W/o Shri Satish Kumar Gupta. All are residents of House No. D-163, Kamla Nagar, Delhi-110007, I hereby send you said notice for giving reply to interrogations as per order dated 18.09.2012, passed by Shri Girish Kathpalia, Joint Registrar, High Court of Delhi at New Delhi in CS (OS) No. 1804/2008 titled as Sharvan Kr. Gupta V/s Tara Chand Gupta & Anr. D.O.H. 16.1.2012.

  1. That you give a reply to the following interrogatory.

(i) Please give me information of exact location, particulars of house and agricultural land which were owned by Late Shri Kishore Lal and Munshi Ram through their father at village Bage, Tahshil Hammur, District Sonipat Haryana,

(ii) Please give the exact details of sale of said property i.e. sale deed registration number, date of execution of sale deed etc.

You give a reply to these interrogatory as per directions of the Hon’ble Court, notice accordingly.

Sd/- IMRAN KHAN (ADV)

638, W.W. TIS HAZARI

DELHI-110054”

  1. However, the Plaintiff failed to respond resulting in filing of the present application. Form-2 in Appendix-C which is required for serving the interrogatories under Order XI Rule 4 CPC is as under:

No. 2 INTERROGATORIES

(O. XI, R. 4)

(Title as in No. 1, supra)

Interrogatories on behalf of the above-named [Plaintiff or defendant C.D.] for the examination of the above-named [defendants E.F. and G.H. or plaintiff].

  1. Did not, etc.
  2. Has not, etc. etc. etc. etc.

[The defendant E.F. is required to answer the interrogatories number………]

[The defendant G.H. is required to answer the interrogatories number………]”

  1. Thus as per Form-2 the requirements are of informing the title of the suit and the interrogatories to the Defendants. A perusal of the legal notice/letter dated 19th September, 2012 sent by the learned counsel for the Defendants to the Plaintiff shows that the details of the suit, the parties therein and the interrogatories required to be replied are clearly stated. Thus the contention of the learned counsel for the Plaintiff that the interrogatories were not issued in the prescribed form and therefore, he was not obliged to answer the same is liable to be rejected. Learned counsel for the Plaintiff has strenuously argued that the statute though prescribes the manner in which the things are required to be done but does not set out the consequence of non-compliance. Thus, the question whether the prescribed manner of the provision is mandatory or directory has to be adjudicated in the light and intention of the legislation as disclosed by the object, purpose and scope of the statue. No doubt the consequence of non-replying the interrogatories are serious in nature to the extent that the suit can be dismissed, however, as noted above, the Form or the manner prescribed by the Statue for seeking reply of the interrogatories has been duly complied with by the Defendants.
  2. However, it has to be examined whether the consequence of the failure of the Plaintiff to answer the interrogatories should entail in dismissal of the suit. In the present case, it cannot be said that the Plaintiff adopted an obstinate attitude and willfully defaulted in answering the interrogatories. The Plaintiff may have acted under the wrong advice on the presumption that the interrogatories were not asked in the prescribed form. In Babbar Sewing Machine Company (supra) it was held:
  3. It is a travesty of justice that the trial court should have, in the facts and circumstances of the case, passed an order striking out the defence of the defendant under Order XI, Rule 21 and that the High Court should have declined to set it aside. The penalty imposed by Order XI, Rule 21 is of a highly penal nature, and ought only to be used in extreme cases, and should in no way be imposed unless there is a clear failure to comply with the obligations laid down in the rule.
  4. Order XI, Rule 21 of the CPC reads : “21. Where any party fails to comply with any order to answer interrogatories, or for discovery of inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence; if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect, and an order may be made accordingly.”
  5. Section 136 of the CPC, 1882, corresponding to Order XI, Rule 21 of the C.P.C. 1908, was based upon Order XXXI, Rule 20, now replaced by Order XXIV, Rule 16 framed under the Judicature Act. The practice of the English Courts is, and it has always been, to make the order a conditional one, and to grant a little further time for compliance. In practice this provision is virtually obsolete.* (1) * (1) Halsbury’s Laws of England, 4th Ed., Vol. 13, p.32
  6. 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 willfully 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.
  7. 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.
  8. 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: Mulla’s C.P.C. 13th Ed. Vol. I, p. 581, Khajah Assenoolla Joo v. Khajah Abdool Aziz I.L.R. 9 Cal. 923, Banshi Singh v. Palit Singh 7 C.L.J. 295, Allahabad Bank Ltd. v. Ganpat Rai I.L.R. 11 Lah. 209, Haigh v. Haigh L.R. (1886) Ch.478 and Twycroft v. Grant 1875 W.N. 201.
  9. In the light of the legal position I am of the considered view that instead of dismissal of the suit as sought by the Defendant Nos. 1 (a), 2 and 3 by this application, the Plaintiff is entitled to one more opportunity to answer the interrogatories. It is, therefore, directed that the Plaintiff will now answer the interrogatories sought by the Defendants vide letter dated 19th September, 2012 within eight weeks failing which the suit of the Plaintiff would be liable to be dismissed.
  10. Application is disposed of accordingly.

Sd/- (MUKTA GUPTA) JUDGE

SEPTEMBER 12, 2013

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