Bombay High Court
Mr. Sanjay Wamanrao Bodke } vs Smt. Padmini Nandkumar Nair } on 23 September, 2014
Author: R. M. Savant
Bench: R. M. Savant
WP.7493.2014.908.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7493 OF 2014
1) Mr. Sanjay Wamanrao Bodke }
Aged-48, Occ. Business }
R/a Flat No.16, Sr. No.753, Vikas Colony }
Trimbak Road, Nashik }
2) Mr. Vijay Wamanrao Bodke }
Aged 46 , Occ Business }
R/a, 22 Anuj Apartment Kalpana Nagar }
College Road, Nashik } ..Petitioners
versus
1) Smt. Padmini Nandkumar Nair }
Aged 50 Occ Service }
R/a Manas Sr. No.792, Sadgurunagar }
Mumbai Agra Road, Nashik }
And Current Add Member of MACT }
2) Late Wamanrao Daguji Bodke }
Deceased }
3) Smt Saraswati Wamanrao Bodke }
Aged - Adult, Occ- Household }
R/a L.B.Road, Manmad, Tal Nandgaon }
Dist Nashik }
4) Smt. Jayashri Ashok Choure }
Aged-Adult, Occ Business }
R/a Chandan Bungalow Plot No.44 }
Jayagar Dist Aurangabad }
5) Master Abhishek Kailas Bodke }
Aged - 14 yrs, Occ - Education }
6) Smt. Rajashree Kailas Bodke }
Aged 35 Occ - Household }
both 5 & 6 R/a Near Karad Building }
Tal Niphad Dist Nashik }
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7) Maharashtra Industrial Development }
Corporation }
Having office at Nashik Udyog Bhavan, }
Second floor, Near, ITI Trimbak Road, }
Nashik }
8) M/s Selek Automation Private Ltd. }
having office at Plot No.114, MIDC }
Satpur Nashik }
9) Shri Parasmal Manukchand Lalwani }
Age 70 Occ - Business }
10) Shri Pankaj Parasmal Lalwani }
Age 40 Occu - Business }
Both 9 & 10 Residing at House No.247,
ig }
Gandhi Chowk Manmad, Tal Nandgaon, }
Dist Nashik }
11) M/s B-3 Engineering Private Ltd. }
having office at Shed No.W-3 }
MIDC Satpur, Nashik, }
12) M/s Vipul Industrial Products }
Having office at C/o Ravindra Sonje, }
R/a Vimal Plot No.4, Tidke Nagar, }
Near Audumbar Watika Row-House, }
Untawadi, Nashik } ..Respondents
Mr. Ajay Talhar i/b. Mr. Amey Deshpande for the Petitioners.
Mr. S. S. Kulkarni for Respondent No. 1.
CORAM :- R. M. SAVANT, J.
DATED :- SEPTEMBER 23, 2014
ORAL JUDGMENT :-
Rule, with the consent of the learned Counsel appearing for the parties, made returnable forthwith and heard.
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2) The writ Jurisdiction of this court is invoked against the order dated 15th July, 2014 passed by the learned 5th Joint Civil Judge, senior Division, Nashik, by which order, the application Exhibit-284 for striking out the defence of the Petitioners i.e. the Defendant Nos. 3 and 4 to the Suit in question, came to be allowed and the defences of the said Defendants came to be struck of.
3) It is not necessary to burden this order with unnecessary details. Suffice it to state that in the Suit in question being Special Civil Suit No. 420 of 2012 filed by the Respondent No. 1 herein/original Plaintiff for partition, in the said Suit an application Exhibit-274 for interrogatories came to be filed by the original Plaintiff. The said application came to be partly allowed by the Trial Court by order dated 12th December, 2011. Insofar as the interrogatories are concerned the interrogatories at Sr. Nos. 3a, 7, 12, 14 and 15 were directed to be answered by the Defendant Nos. 3 and 4 and the Plaintiff was directed to serve the said interrogatories to the Defendant Nos. 3 and 4 and the Defendant Nos. 3 and 4 were directed to answer the same within the time prescribed in Order XI Rule 8 of the Civil Procedure Code.
4) An application seeking extension of time being Exhxibit-
279 came to be filed by the Defendant Nos. 3 and 4, by which application, the said Defendants sought extension of time for answering Page 3 of 10 J.V.Salunke,PA ::: Downloaded on - 26/09/2014 23:48:49 ::: WP.7493.2014.908.doc the interrogatories. The said extension was sought on two fold grounds, namely to enable the Defendants to approach the higher Court and also on the ground that since some time would be required to collate the information required to answer the interrogatories, that the time be extended. The Plaintiff was directed to file a reply to the said application Exhibit-279. It appears that the Plaintiff on 6 th January, 2012, filed application Exhibit-284 for striking out the defence of the Defendant Nos. 3 and 4 on the ground that they have not complied with the order dated 12th December, 2011. The said application was filed in the Court of the learned Civil Judge, Senior Division at Niphad. It seems that the Suit in question thereafter came to be transferred to the Court of the learned Civil Judge, Senior Division, Nashik some time in September, 2012. the Defendant Nos. 3 and 4 filed an application Exhibit 449 seeking condonation of delay in answering the interrogatories, which they had answered and which answers were placed on record vide the application Exhibit-449. It is thereafter that the impugned order came to be passed on 15 th July, 2014 striking out the defence of the Defendant Nos. 3 and 4.
5) It is required to be noted that neither the application Exhibit-279 nor the application Exhibit-449 filed by the Defendant Nos.
3 and 4 were considered by the Trial Court. The Trial Court, whilst Page 4 of 10 J.V.Salunke,PA ::: Downloaded on - 26/09/2014 23:48:49 ::: WP.7493.2014.908.doc allowing the application Exhibit-284 filed by the Plaintiff, has recorded a finding that the conduct of the Defendant Nos. 3 and 4 in not answering the interrogatories within the time stipulated in Order XI was obstinate and bordering on being contumacious. As indicated above, it is the said order dated 15th July, 2014, which is sought to be taken exception to by way of the above Petition.
6) Heard the learned Counsel appearing for the parties.
7) The learned Counsel appearing for the Petitioners i.e. the Defendant Nos. 3 and 4 would reiterate the case of the said Defendants in the applications Exhibit-279 and 284 urged in the Trial Court. The learned Counsel would contend that in the facts and circumstances of the case, where the Defendant Nos. 3 and 4 had filed an application on 8th January, 2014, which was on record, the Trial Court ought not to have proceeded to strike out the defence of the Defendant Nos. 3 and 4 by the impugned order dated 15th July, 2014.
8) Per contra, the learned Counsel appearing for the Respondent No. 1/original Plaintiff would support the impugned order.
The learned Counsel would contend that the striking out of the defence was warranted in the facts and circumstances of the case where the Defendant Nos. 3 and 4 had not chosen to answer the interrogatories Page 5 of 10 J.V.Salunke,PA ::: Downloaded on - 26/09/2014 23:48:49 ::: WP.7493.2014.908.doc within the time stipulated under Order XI of the Code and that the application Exhibit-279 was filed for seeking stay of the said order dated 12th December, 2011 so as to enable the Defendants to approach the higher Court. The learned Counsel would seek to draw this Court's attention to the manner in which the interrogatories have been answered and which answers are placed on record vide Exhibit-449 filed on 8th January, 2014, and would contend that the answers are perfunctory in nature. The learned Counsel would therefore support the impugned order and contend that the same may not be interfered with in the Writ Jurisdiction of this Court.
9) Having heard the learned Counsel appearing for the parties, I have considered the rival contentions. It is trite as settled by the Judgments of the Apex Court as well as this Court that an order striking out the defence of a defendant has to be resorted to as a last resort that too only if the defendant has shown willful default or willful attempt to disregard the order passed during the course of the trial, as any order striking out pleadings has got serious consequences and is therefore a matter of serious prejudice. The parameters for exercise of the said power have been spelt out in various judicial pronouncements.
Reference could be made to the Judgments of the Apex Court in the matter of Babar Sewing Machine Co. vs. T. N. Mahajan 1 and Paradise 1 1978 (4) SCC 188 Page 6 of 10 J.V.Salunke,PA ::: Downloaded on - 26/09/2014 23:48:49 ::: WP.7493.2014.908.doc Industrial Corporation vs. Kiln Plastics Products 2 and a Judgment of a Division Bench of this Court in the matter of Ashapura Minechem Ltd.
vs. Pasific Basin IHX (UK) Ltd.3 The said Judgments lay down the preposition of law that the order striking out the defence or dismissal of Suit should not be made lightly unless there is willful default or willful attempt or a conduct which is contumacious on the part of the concerned party. It has further been held that though in certain circumstances the provisions of Order XI Rule 21 must be strictly enforced, it does not follow that the Suit can be lightly thrown out or defence struck of without adequate reasons. The rule must be worked with caution and may be made use of as a last resort.
10) The question which therefore falls for consideration is whether in the facts and circumstances of the case an order warranting striking out defence was warranted. In the said context, it is required to be noted that in the application Exhibit-279, which was filed for stay, the said relief was sought by the Defendant Nos. 3 and 4 on the twin grounds that they intend to approach the higher Court against the order dated 12th December, 2011 and that some time would be required for them to collate the information so as to answer the interrogatories. It is therefore not as if the Defendant Nos. 3 and 4 had shown a total 2 1975 LawSuit (SC)368 3 2013 LawSuit(Bom) 253 Page 7 of 10 J.V.Salunke,PA ::: Downloaded on - 26/09/2014 23:48:49 ::: WP.7493.2014.908.doc reluctance or obstinacy to answer the interrogatories. It is therefore not a case where the Defendants can be said to have committed a willful default or their conduct was contumacious. It is further required to be noted that the Defendant Nos. 3 and 4 thereafter filed an application Exhibit-449 seeking condonation of delay in answering the interrogatories, in which application, the Defendants had sought to place their answers to the interrogatories on record. The said application therefore can be said to indicate that the defendants had complied with the said order dated 12 th December, 2011 albeit belatedly. The delay could have been a defining aspect if the order striking out defence, were to have been passed prior to 8 th January, 2014, but such is not the case in the instant matter. The said application Exhibit-449 was filed almost six months prior to the impugned order striking out the defence, which is dated 15 th July, 2014, was passed. The Trial Court has, without even considering the applications Exhibits-279 and 449 has passed the impugned order.
11) In my view, in the light of the said applications Exhibit-279 and 449, the Trial Court ought to have been a bit circumspect considering the fact that it was considering an application filed by the Plaintiff, which would have drastic consequences for the Defendants. In my view therefore, the impugned order insofar as it strikes out the Page 8 of 10 J.V.Salunke,PA ::: Downloaded on - 26/09/2014 23:48:49 ::: WP.7493.2014.908.doc defence of the Defendant Nos. 3 and 4 is not sustainable and is required to be quashed and set aside and is accordingly quashed and set aside.
12) However, one aspect remains, which is as regards the answers to the interrogatories. Though the same does not directly falls for consideration of this Court in the above Petition, in view of the fact that the learned Counsel appearing for the Petitioners Shri. Talhar fairly stated that the Defendant Nos. 3 and 4 have no objection to supplement the answers, which have been already provided with further material, the said aspect is taken up for consideration. The learned Counsel appearing for the Respondents Shri. Kulkarni makes a grievance as regards the answers which have been given to the interrogatories, which are found at pages 60 to 63, which were placed on record along with the application Exhibit-449. The learned Counsel Shri. Talhar states that insofar as question No. 7 is concerned, the numbers of the Bank Accounts of the Defendant Nos. 3 and 4 would be given as also the amounts, if there are any substantial withdrawals after the filing of the Suit. The learned Counsel further states that insofar as question No. 14 is concerned, the second part of the question would be answered and insofar as question No. 15 is concerned, a more specific answer with details would be tried to be given. Shri. Talhar assures the Court that the said answers would be given within four weeks. Insofar as question Page 9 of 10 J.V.Salunke,PA ::: Downloaded on - 26/09/2014 23:48:49 ::: WP.7493.2014.908.doc No. 3a is concerned, Shri. Talhar states that the Defendant No. 3 would answer the same. It is expected that the Defendant Nos. 3 and 4 would stand by their assurance.
13) The Petition is allowed to the aforesaid extent. Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs of the Petition.
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