Bombay High Court
Asha Madhusudan Joshi vs Ashok H. Bhide And Ors. on 9 September, 2002
Equivalent citations: 2003(2)BOMCR323
Author: D.D. Sinha
Bench: D.D. Sinha
JUDGMENT D.D. Sinha, J.
1. Heard Shri Vyawahare, learned Counsel for the appellant. The Counsel for the respondents is absent.
2. The appeal against order is directed against the order dated 25-4-1995 passed by the 4th Joint Civil Judge, Senior Division, Nagpur below Exhibit 62 in Special Civil Suit No. 436/1992 whereby application moved by the appellant under Order XXXIX, Rule 11 of Code of Civil Procedure for striking out defence of the respondents came to be rejected.
3. Shri Vyawahare, learned Counsel for the appellant, states that appellant Smt. Asha w/o Madhusudan Joshi filed Special Civil Suit No. 436/1992 for partition and separate possession and claimed 1/10th share in the suit property. It is contended that present respondent No. 1 Ashok H. Bhide is brother of the appellant (plaintiff). Respondent No. 2 Smt. Sumitra is wife of respondent No. 1. Respondent No. 3 Ashutosh is son of respondent Nos. 1 and 2. The respondent No. 4 Smt. Anuradha Huddar is a partner is M/s. Saket Builders and respondent Nos. 5 to 7 are sisters of the appellant/plaintiff.
4. It is further contended by the learned Counsel for the appellant that the appellant along with suit filed an application under Order XXXIX, Rules 1 and 2 of Code of Civil Procedure for temporary injunction. The said application was rejected by the trial Court on 10-6-1992. Being aggrieved by the same, appellant filed appeal against order bearing No. 68/1992 challenging validity of the order dated 10-6-1992 passed by the trial Court. It is submitted that this Court dismissed the appeal against order vide order dated 6-10-1992 with directions, which read thus:
"While dismissing the present appeal, respondent Nos. 1 to 5 are directed that out of amount of consideration in respect of suit property, they shall keep 1/10th of the said amount in the fixed deposit in State Bank of India, Dharampeth Branch, Nagpur in respect of respective shares of the appellant and respondent Nos. 2, 3 and 4 for initial period of three years. In case special civil suit is not decided within the said period, the said amount shall be further invested in the fixed deposit as per directions of the learned trial Judge. In the meantime, neither the appellant nor respondent Nos. 2 to 4 shall withdraw the said amount. With this direction, the appeal is dismissed. However, there is no order as to costs."
5. Learned Counsel Shri Vyawahare states that respondent Nos. 1 to 4 were in fact required to deposit Rs. 4,80,000/- as per directions of this Court vide order dated 6-11-1992 passed in Appeal Against Order No. 68/1992, out of which respondents have deposited only Rs. 1,20,000/- and since remaining amount of Rs. 3,60,000/- was not deposited by the respondents, the appellant filed a contempt petition bearing No. 123/1993 for taking appropriate action against the present respondent Nos. 1 to 4 under the provisions of Contempt of Courts Act. It is contended that present respondent Nos. 1 to 4 filed a specific undertaking in the contempt petition on 22-7-1993, which reads thus:
"We respondents 1 to 4 hereby undertake to furnish surety/security for the respective share of respondent Nos. 2, 3 and 5 before the trial Court as directed by this Court."
6. It is submitted by the learned Counsel for the appellant that this Court accepted the undertaking filed in the contempt petition and disposed of the contempt petition on 22-7-1993 by observing thus:
"This undertaking given by the respondent that he will furnish security in addition to the amount deposited of Rs. 1,20,000/- shall satisfy the requirement of this order. The respondent is directed to furnish the above security within a period of four weeks from the date of this order."
The learned Counsel for the appellant submits that the period of four weeks expired on 19-8-1993. Till then, respondent Nos. 1 to 4 did not furnish security as per their undertaking dated 22-7-1993 and, therefore, there is a wilful and deliberate disobedience committed by the respondent Nos. 1 to 4 not only in respect of undertaking given by them in the contempt petition, but also of the directions given by this Court in the Contempt Petition No. 123/1993 whereby respondents 1 to 4 were directed to furnish security within a period of four weeks from 22-7-1993.
7. Learned Counsel Shri Vyayaware further submits that respondents did not file any application before this Court for extension of time to furnish security as directed by this Court nor such time was extended by this Court. However, on 25-8-1993 present respondent Nos. 1 to 4 (defendant Nos. 1, 5, 6 and 7 in the suit) furnished solvency certificate of Rs. 3,60,000/- in compliance with the order dated 22-7-1993 passed by this Court in the contempt petition. It is contended by the learned Counsel that the trial Court refused to accept solvency certificate produced by the respondent Nos. 1 to 4 on the ground that solvency certificate furnished by them was in respect of the suit house and since shares of the parties in the suit property were not decided, the respondents 1 to 4 were directed to furnish surety other than the suit house. It is further contended that in the first place trial Court should have rejected the solvency certificate submitted by the respondents 1 to 4, even otherwise on the ground that the same is furnished after expiry of period granted by this Court for this purpose apart from reasons for which same is refused.
8. It is further contended by Shri Vyawahare that respondent Nos. 1 to 4 on 1-11-1993 filed an application before the trial Court for grant of time to furnish fresh solvency certificate. That application was rightly rejected by the trial Court vide order dated 1-11-1993 by observing that prayer made by the respondents in the application cannot be accepted because trial Court has no power to extend the time limit given by the High Court. It is submitted that the respondents 1 to 4 challenged the order dated 1-11-1993 passed by the 2nd Joint Civil Judge, Junior Division, Nagpur by filing Civil Revision Application St. No. 14520/1994 along with application for condonation of delay before this Court. This Court vide order dated 1-9-1994 rejected the application for condonation of delay and consequently, civil revision application, which was registered as C.R.A. Stamp No. 14502/1994 automatically stood dismissed. It is contended that respondent Nos. 1 to 4 instead of honouring the undertaking given to this Court and obeying directions given by this Court in the contempt petition, not only failed to honour and comply the same, but adopted a peculiar course with the oblique motive to give go-bye to the terms and conditions of the undertaking as well as directions issued by this Court vide order dated 22-7-1993 in the contempt petition.
9. It is further contended by the learned Counsel for the appellant that in view of the above referred facts and circumstances, the appellant moved an application in Special Civil Suit No. 436/1992 under Order XXXIX, Rule 11 read with section 151 of Code of Civil Procedure (Exhibit 62) for striking out the defence of respondent Nos. 1 to 4 for misleading the Court and for breach of the order. It is contended that trial Court vide order dated 25-4-1995 not only rejected the application filed by the appellant, but also accepted the solvency certificate furnished by the respondent Nos. 1 to 4. Being aggrieved by this order, the appellant has filed the present appeal against order.
10. It is vehemently argued by the learned Counsel for the appellant that the impugned order is passed by the trial Court without taking into consideration the above referred undisputed facts. It is submitted that as per order dated 22-7-1993 passed by this Court in Contempt Petition No. 123/1993, respondent Nos. 1 to 4 were directed to furnish security within a period of four weeks from 22-7-1993 and the said period expired on 19-8-1993. It is contended that the respondents did not obtain any extension of time from this Court in this regard. The trial Court also rejected the application filed by the respondent Nos. 1 to 4 for extension of time to furnish solvency certificate and revision against the said order was also dismissed by this Court. In a situation like this, the appellant was entitled to move an application under Order XXXIX, Rule 11 of the Code of Civil Procedure for striking out the defence of the respondents and the trial Court ought to have accepted the application and struck out the defence of the respondent Nos. 1 to 4. The impugned order is, therefore, unsustainable in law and may be set aside.
11. I have given anxious thought to the facts placed before this Court by the learned Counsel for the appellant and also considered the legal contentions canvassed by him. In the instant case, no affidavit appears to have been filed by the respondents controverting the allegations made by the appellant in the appeal against order. In absence thereof, I am inclined to accept the facts placed by the learned Counsel for the appellant before me.
12. In the instant case, this Court vide order dated 6-11-1992 dismissed the appeal against Order No. 68/1992 filed by the appellant and directed that out of amount of consideration in respect of suit property, the respondents shall keep 1/10th of the said amount in the fixed deposit in the State Bank of India, Dharampeth Branch, Nagpur in respect of respective shares of appellant and present respondent Nos. 5 to 7 initially for a period of three years with the further observation that if the suit is not decided within the said period, amount shall be further invested in the fixed deposit as per directions of the Court. In view of the above referred direction given by this Court, it was undoubtedly clear that the respondents 1 to 4 were required to deposit amount of Rs. 4,80,000/-, i.e. Rs. 1,20,000/- each towards share of the appellant and respondent Nos. 5 to 7. It is not in dispute that the respondents deposited an amount of Rs. 1,20,000/- in State Bank of India only and gave a specific undertaking in the Contempt Petition No. 123/1993 dated 22-7-1993 that the respondents 1 to 4 shall furnish surety for the respective shares of respondents Nos. 5 to 7 before the trial Court as directed by this Court vide order dated 16-11-1992 in Appeal Against Order No. 68/1992. This Court while disposing of the contempt petition vide order dated 22-7-1993 showed indulgence and granted concession to the respondent Nos. 1 to 4 to furnish security in respect of present respondent Nos. 5 to 7 to the tune of Rs. 3,60,000/- before the trial Court instead of depositing the said amount. This Court, however, gave a specific direction to the respondent Nos. 1 to 4 to furnish the said security within a period of four weeks from 22-7-1993. The respondent Nos. 1 to 4 in view of these facts, were not only bound to furnish security in view of their undertaking to the Court, but were specifically directed to furnish security within a period of four weeks. The respondent Nos. 1 to 4 did not either care to honour the undertaking given before this Court dated 22-7-1993 nor obeyed the direction given by this Court by furnishing security for the amount of Rs. 3,60,000/- within a period of four weeks i.e. on or before 19-8-1993. The respondent Nos. 1 to 4 on the backdrop of these facts have committed deliberate and intentional disobedience of the terms and conditions of their own undertaking as well as directions issued by this Court in the contempt petition.
13. It is not at all disputed that the respondent Nos. 1 to 4 neither made any application to this Court for extension of time nor this Court has extended time for furnishing security beyond the period of four weeks as directed by this Court. I am surprised to see the audacity of respondent Nos. 1 to 4, who have made an application for extension of time before the trial Court on 1-11-1993 knowing fully well that it is beyond jurisdiction of the trial Court to extend the time, which was prescribed by the High Court vide order dated 22-7-1993. The trial Court was absolutely justified in rejecting the application for extension of time moved by the respondent Nos. 1 to 4 vide order dated 1-11-1993. It is really surprising that the respondent Nos. 1 to 4 thereafter challenged the order dated 1-11-1993 by filing civil revision application before this Court. The conduct of the respondents in filing civil revision application demonstrates oblique motive with which the revision was preferred. However, this Court did not condone the delay caused in filing revision by dismissing application for condonation of delay, with the result, the civil revision application also stood dismissed. The entire conduct of the respondent Nos. 1 to 4 on the backdrop of the above referred facts, reveals that the respondents Nos. 1 to 4 never intended to honour the undertaking given to this Court and comply with the directions issued by this Court in the contempt petition. On the other hand, there was a deliberate attempt made by the respondent Nos. 1 to 4 by moving application for extension of time to furnish security before the trial Court and by challenging the order passed by the trial Court rejecting the said application by way of civil revision application in this Court in order to frustrate the condonation of undertaking given by them as well as directions issued by this Court in the contempt petition.
14. It will be proper at this stage to consider the provisions of Order XXXIX, Rule 11(1) of Code of Civil Procedure. This Rule is added by the Bombay High Court Notification No. 0102/77 dated 5-9-1983 and contemplates that where the Court orders any party to a suit or proceeding to do or not to do a thing during the pendency of the suit or proceeding or where any party to a suit or proceeding gives any undertaking to the Court to do or refrain from doing a thing during the pendency of the suit or proceeding and such party commits any default in respect of or contravenes such order or commits a breach of such undertaking, the Court may dismiss the suit or proceeding, if the default or contravention or breach is committed by the plaintiff or applicant or strike out the defences, if the default or contravention or breach is committed by the defendants or opponent. The proviso to this Rule contemplates that before passing any order under this sub-rule, notice shall be given to the parties likely to be affected by such order to be passed.
15. Rule 11 is added in Order XXXIX of the Code of Civil Procedure by the High Court vide notification dated 5-9-1983 with a specific purpose and to achieve definite objective. The intent of Rule is to provide the necessary action to be taken by the Court in case parties to the suit defy the order passed by the Court or commit breach of undertaking given to the Court. This provision is introduced with a positive object that the parties to the suit must face necessary consequences contemplated by this Rule in case they defy the order of the Court or commit breach of the undertaking given to the Court. The scheme of Order XXXIX, Rule 11(1) is to clothe the Court with a power to take appropriate action against the parties to the suit in case they defy the order of the Court or commit breach of the undertaking given to the Court. It is no doubt true that the words "Court may" used in the provision, which in the normal set of circumstances, imply that the discretion given to the Court for taking necessary action in the circumstances mentioned in the order, are directory. However, the word "may" in a given case is directory or mandatory needs to be construed in view of scheme of provision as well as intent and objective to be achieved by such provision. Similarly, weighing of the consequences of holding a provision to be mandatory or directory is vital and more often than not determinative of the very question whether the provision is mandatory or directory. When the design of a statute or provision is to clothe with the power in the authority or Court for taking definite and positive action in case of breach thereof, then the provision must be construed to be mandatory in nature even though the word used is "may". While applying these parameters to Rule 11(1), I have no hesitation to hold that Rule 11(1) of Order XXXIX of the Code of Civil Procedure is mandatory in nature.
16. My view is fortified by the view expressed by the learned Single Judge of this Court in Ratnakar D. Patade v. Smita Pandurang Dalvi and others, . It is observed by the learned Single Judge in the above referred judgment, which reads thus:
"The difference between a mandatory Rule and a directory rule is that while former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the rule is enacted. As held by the Supreme Court in the case of Sharif-ud-bin v. Abdul Gani Lone, , whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequences should not follow. Rule 11(1) lays down that failure to comply with court's order leads to specified consequence and on fair construction thereof, it is clear that if a party commits default in complying courts order or contravenes it then the consequence as provided therein has to follow. The whole purpose of Rule 11(1) would be frustrated if the word 'may' in sub-section (1) would receive construction to mean 'discretionary' or 'directory'. In my view keeping in mind the general object intended to be secured and carefully attending to the scope of the provision. Rule 11(1) of the Code of Civil Procedure is 'mandatory' in nature and the trial Court has erred in construing it as 'discretionary' in nature."
17. On the backdrop of the settled legal position, it must follow that if any party to the proceedings after giving undertaking to the Court commits any default or contravenes or commits a breach of such undertaking and if such breach or default is committed by the defendants, then the necessary consequence shall be to strike out the defences of the defendants. Similar is the case in respect of order passed by the Court whereby party to the suit is required to do or not to do a thing during pendency of the suit and if any default or breach is committed in respect of such order passed by the Court and if it is by the defendants, then necessary consequence would be that the Court shall strike out the defence of such defendants.
18. In the instant case, on the backdrop of the above referred facts, the respondents Nos. 1 to 4 not only committed total breach of undertaking given to the Court, but also contravened and breached the order dated 22-7-1993 passed by this Court in Contempt Petition No. 123/93 whereby respondents were directed to furnish security in respect of respondent Nos. 5 to 7 to the tune of Rs. 3,60,000/- in the trial Court within a period of four weeks. It is pertinent to note that period of four weeks granted by this Court for the above referred purpose to respondent Nos. 1 to 4 had expired on 19-8-1993. Thereafter, lower Court had no jurisdiction to accept security, if any, furnished by the respondent Nos. 1 to 4 after the said period unless period for this purpose is specifically extended by this Court. By the impugned order, the trial Court in utter disregard to the facts, such as time granted by the High Court expired on 19-8-1993, application for extension of time for furnishing security moved by the respondents was dismissed by the trial Court vide order dated 1-11-1993 and revision preferred by the respondents against the order dated 1-11-1993 passed by the trial Court also came to be dismissed, permitted the respondent Nos. 1 to 4 to furnish security and accepted the same on totally misconceived and unfounded grounds. The entire approach of the trial Court is totally perverse and misconceived and, therefore, the impugned order in my opinion, is devoid of substance and de hors the provisions of Order XXXIX, Rule 11(1) of the Code of Civil Procedure.
19. For the reasons stated hereinabove, the impugned order dated 25-4-1995 passed by the trial Court is set aside and defence of respondent Nos. 1 to 4 is hereby struck off.
20. The appeal against order is allowed. No order as to costs.
Appeal allowed.