Striking of defence -default should be wilful

Citation;AIR1954MP65

IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)

Civil Misc. Appeal No. 34 of 1950

Decided On: 03.02.1953

Appellants: Shyamlal Guruprasad
Vs.
Respondent: Ganpatlal and Ors.

Hon'ble Judges/Coram:
S.S. Shinde, C.J. and P.V. Dixit, J.

Family - Partition of property - Order of Court rejecting Petitioner suit for partition of property under challenge - Hence, present appeal - Held, in present case, it appeared that Defendant had been negligent - But lower Court came to conclusion that default was not wilful - One of reasons given by lower Court was that documents had already been produced - Court saw no reason to differ from view taken by lower Court - Order sustained - Appeal dismissed.

1. This is an appeal against the order of the Judge, Shajapur dated 24-9-1950 refusing out the written statement under Order (sic) Rule 21, Code of Civil Procedure. The short facts relevant to (sic)se are that Plaintiff Shyamlal filed a suit (sic)tition of the, joint family property. In is of the trial the Plaintiff applied un- of the Gwalior Code of Civil Procedure (sic)dig to Order 11, Rule 15, Code of Civil Procedure for the (sic)on of documents. On 27-4-50, the Court (sic) the Defendant to allow the Plaintiff to documents in the presence of the (sic)k of the Civil Judge's Court, Bhelsa. 'It (sic) that 29-5-50 was fixed for the inspection (sic)nents. On that day the Defendant did (sic)duce his documents. Ultimately the de-(sic) produced the documents on 27-6-50. The (sic) filed an application under Order 11, Rule 21, Code of Civil Procedure to have the defence struck out. The (sic) Court stating that action under Order 11, Rule taken only as a last resort and that the documents have already been produced on 27-6-50, and that a large amount of property is involved in the suit which is a partition suit, rejected the application. Consequently the Plaintiff has filed this appeal.

2. It cannot be disputed that the penalty prescribed by Order 11, Rule 21, Code of Civil Procedure can be imposed only in extreme cases and as a last resort. In - 'Allahabad Bank Ltd., Lahore v. Ganpat Rai' AIR 1929 Lah 750 (A), their Lordships of the Lahore High Court observed as follows:

Before us it is common ground that an order to strike out a defence under Rule 21 should not be made by a Court unless the default has been wilful and that such an order should only be made as a last resort.

Their Lordships also held that the stringent provisions of Order 11, Rule 21, should be applied only in extreme cases, where obstinacy or contumacy on the part of the Defendants or a wilful attempt to disregard the order of the Court is established. Their Lordships also discussed the word "wilful" and observed that it means the act is done deliberately and intentionally, not by accident or inadvertence so that the mind of the person who does the act goes with it. In - 'Rameshwar Narayan Singh v. Rikhanath Koeri' AIR 1920 Pat. 131 (B), their Lordships held as follows:

The penalty imposed by Rule 21, Order 11 is of a highly penal nature, and ought only be used in extreme cases and as a last resort, and should in no case be imposed unless there is a clear failure to comply with the obligation laid down in the rule.

In 'Devakaran Bholaram v. Sangidas Jesiram' MANU/MH/0060/1925 : AIR 1925 Bom 386 (C), their Lordships of the Bombay High Court held as follows:

A Defendant is liable to have his defence struck out only when an order of the Court has not been obeyed, and even then the Court should direct that the Defendant be called upon to show cause why his defence should not be struck out. The penalty will be imposed, if it can be shown that the non-compliance with the order of the Court is due to wilful default.

In 'Jawandsingh v. Krishnakumar' AIR 1950 Nag 8 (D), Mudholkar J. held as follows:

Granting that the provisions of Order 11, Rule 21, Code of Civil Procedure, must be strictly enforced, it does not follow that a suit can be lightly thrown out or a defence struck off without adequate reason. The test laid down is whether the default is wilful, and quite properly. Unless that test is satisfied, no order under Order 11, Rule 21, ought to be passed.

All these authorities support the proposition that action under Order 11, Rule 21 should be taken only in extreme cases and as a last resort. The test laid down is whether the default is wilful. Unless and until it is proved that the default is wilful, penalty should not be imposed even if the order of the Court is not complied with owing to negligence or inadvertence.

3. In the present case it does appear that the Defendant has been negligent. But the lower Court came to the conclusion that the default was not wilful. One of the reasons given by the lower Court is that the documents have already been produced. We see no reason to differ from the view taken by the lower Court. In these circumstances there is no reason to interfere with the order of the lower Court.

4. The appeal is, therefore, dismissed wife costs.

5. Dixit J.

I agree.

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