Himachal Pradesh High Court
Amar Chand Butail vs Union Of India (Uoi) And Ors. on 31 August, 1956
JUDGMENT
Ramabhadran, J.C. (1) This is a plaintiff's appeal under Order 43, Rule 1 (f), purporting to be against three orders passed by the learned District Judge of Mahasu on 8-9-1953, 13-11-1953 and 1-12-1953, refusing to strike off the defence of respondents 1 and 2, under the provisions of Order 11, Rule 21 Civil Procedure Code.
(2) For reasons stated in this Court's order dated 14-7-1956, it was held that it was not open to the appellant to challenge the order passed by the District Judge, Mahasu (Sri Chet Ram) on 8-9-1953, because no appeal against that order was preferred within the period of limitation.
I further held that it was open to the appellant to assail the orders passed by the District Judge on 13-11-1953 and 1-12-1953, but in doing so, he should confine himself strictly to any wilful default, committed by respondents 1 and 2, subsequent to 8-9-1953.
(3) Arguments of the learned counsel for the parties were heard on the 20th ultimo and 22nd instant. For reasons to be stated shortly, I am of the opinion that there is no force in this appeal.
(4) Learned counsel for the appellant (Mr. Chandu Lal) invited my attention to two applications, i.e., under Order 11, Rule 1 and under Order 11, Rule 12, Civil P. C., made by him on behalf of the plaintiff on 4-4-1953. On 9-7-1953, the learned Government Advocate (Mr. L. N. Sethi) put in a reply. The reply was to the effect that the documents mentioned in the plaintiff's application could not be traced, despite best efforts, and, consequently, it was not possible to reply to the interrogatories, without reference to the original documents.
This reply was supported by an affidavit signed by Mr. Sethi and attested by Mr. Lachhman Das, Senior Subordinate Judge, Mahasu. On the same day (9-7-1953), the plaintiff put in a petition under Order 11, Rule 21, praying that the defence of defendants 1 and 2 be struck off, since they had failed to answer the interrogatories and give discovery of documents despite orders of the Court and grant of many adjournments. On 20-9-1953, Mr. L. N. Sethi, Government Advocate, filed a reply to the interrogatories.
On the same day, he also filed a reply to the application for discovery of documents. In that reply, it was stated that documents specified in Annexure 'A' could not be traced. Such documents, as were traced out, were produced (as specified in Annexure 'B'). As regards the rest, privilege was claimed on the basis of a statement, purporting to be on solemn affirmation made by Pt. Padam Dev, Home Minister of Himachal Pradesh. On 1-10-1953, an objection was filed by the plaintiff, directed against the replies submitted by Mr. Sethi on 20-9-1953. Inter alia, it was pointed out therein that the reply was not an oath.
It was further contended that the answers were evasive and even the documents specified in Annexure 'B' had not been produced. It was further pointed out that the statement of Pt. Padam Dev was not affidavit and privilege had been wrongly claimed. Mr. Sita Ram, who, by this time had replaced Mr. L. N. Sethi, as Government Advocate, filed two more replies on 1-12-1953. One was the reply to the plaintiff's petition for discovery of documents and other was a reply to the interrogatories submitted by the plaintiff, (5) Mr. Chandu Lal argued, vehemently, with reference to Section 139, Civil P. C., Order XIX, C. P. C., High Court Rules and Orders, Volume-1, Chapter 1-F, Rules 12 and 13 and Volume IV, Chapter 12-B, Rule 8 as well as form No. 5, included in Appendix C to the Civil Procedure Code, that the various replies filed by the Government Advocate should have been on affidavit, duly attested by a person competent to administer oath under Section 139, Civil P. C. He argued that, for s6me reason, the Government Advocate, whether it be Mr. Sethi or Mr. Sita Ram, was unwilling to file an affidavit despite the fact that the omission was pointed out on many occasions. My attention was also invited to the order passed by my learned predecessor on 17-11-1952 in Civil Revision No. 25 of 52, whereby the District Judge was directed to dispose of the plaintiff's various applications under Orders XI and XII according to law.
(6) Mr. Chandu Lal further contended that documents were being wilfully withheld by respondents 1 and 2. He pointed out that the documents, whose discovery was sought by the plaintiff, included letters written by the plaintiff himself, to various Government officers. He contended that the same could not possibly have been misplaced. Mr. Chandu Lal also emphasised the fact while, to start with, privilege was claimed in respect of a very large number of documents, yet, subsequently, privilege was given up, except in respect of five documents.
(7) On these premises, Mr. Chandu Lal urged that the respondents 1 and 2 have been guilty of refusing to answer interrogatories, and giving discovery of documents and, therefore, their defence should be struck off under Order 11, Rule 21. He contended that the learned District Judge was not justified in thinking that there was no wilful default on the part of the defendants concerned.
He submitted that the circumstances disclosed by the record are a clear pointer to the effect that there has been wilful default on the part of defendants 1 and 2 and no further indulgence should have been shown to them. I was, therefore, requested to pass an order, striking off the defence of respondents 1 and 2, under Order 11, Rule 21.
(8) The learned Government Advocate, on the other hand, urged that his replies dated 1-12-1953, though not attested by a person competent to administer oath, were, nevertheless, on oath. He invited my attention to the wording of Form No. 5, included in Appendix C to the Civil P. C. He argued that the form does not show that the statement should be attested by one competent to administer oath.
In the alternative, he suggested that it was open to the learned District Judge--if he considered such a course necessary--to attest the statement himself. In any case, he pleaded that the omission to get the statements attested was a bona fide one and cannot be visited by striking off the defence of respondents 1 and 2. In this connection, he submitted that the Court below also believed that attestation was not necessary, otherwise it would have attested the replies itself.
(9) As regards the appellant's plea that documents had been wilfully withheld, the learned Government Advocate submitted that this was not the case. He elaborated this point by saying that the documents in question had to be summoned from different offices, situated in different places and, despite diligent efforts, some of them could not be traced. He further submitted that it was a proof of the respondents' bona fides that privilege was waived subsequently in respect of all but five documents.
(10) In this connection, he invited my attention to the fact that a revision petition, filed by the plaintiff against the order of the lower Court upholding privilege, was rejected by this Court on 25-6-1956, since it was not pressed. During arguments, when this fact was brought to my notice, I upheld the learned Government Advocate's contention that the question of privilege could not be agitated in this Court, under the circumstances.
(11) In my opinion, the replies filed by the learned Government Advocate, from time to time, should have been according to the prescribed form and should have been on oath duly attested by a person competent to administer oath under Section 139, Civil P. C. I am also constrained to remark that there has been unnecessary delay on the part of respondents 1 and 2 in replying to the plaintiff's applications for interrogatories and discovery of documents. At the same time, I am not prepared to hold that there has been wilful default on the part of respondents 1 and 2, which would justify striking off their defence under Order 11, Rule 21. The learned Government Advocate pointed out--and not without relevancy--that no application under Order 11, Rule 21, was made subsequent to 8-9-1953.
He further submitted that no action under Order 11, Rule 21, could be taken by a Court, in the absence of an express application under that rule. I do not consider it necessary to express an opinion on this point, because, as already shown, on merits, I have come to the conclusion that there has been no wilful default on the part of respondents 1 and 2, although they have been guilty of laches and not couching their replies in the proper form.
(12) It has been held in a long trend of rulings that action under Order 11, Rule 21, should be taken in the last resort, i.e., where the Court is satisfied that there has been wilful default. The following authorities were brought to my notice:--Allahabad Bank Ltd., Lahore v. Ganpat Rai, AIR 1929 Lah 750 (A). There, a Division Bench of that High Court held that:
"An order to strike out a defence under Rule 21 should not be made, unless the default is wilful and such an order should always be made as the last resort."
The above ruling was followed jn V. R. A. R. M. Chettyar Firm v. C. R. A. C. T. Nachiappa Chettyar, AIR 1935 Rang, 310 (B), where a Division Bench of that High Court indicated that:
"The Court's exercise of its discretion under Order 11, Rule 21, is that it is only when the default is wilful and as a last resort that the Court should dismiss the suit or strike out the defence."
The same rule was followed in Jawandsingh Jwala Singh v. Krishnakumar Ganga Prasad Bajpai, AIR 1950 Nag 8 (C), where a learned Judge of that High Court expressed himself in the following terms:
"Granting that the provisions of Order 11, Rule 21, Civil P. C., 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."
Shyamlal Guruprasad v. Ganpatlal, AIR 1954 Madh-B 65 (D). There, a Division Bench of that High Court, following the above three authorities, observed 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." On the same analogy, it can be said here that even if we held that respondents 1 and 2 have not complied with the Court's order, due to negligence or inadvertence, still they cannot be visited with the penalty of striking off their defence.
(13) In view of all that has been said above, I hold that the Court below was right in refusing to strike off the defence of respondents 1 and 2. This appeal, accordingly, must fail.
ORDER (14) Accordingly, I dismiss the appeal.
(15) There remains the question of costs. Although I have held that there has been no wilful default on the part of respondents 1 and 2, still the fact remains that they have been guilty of laches and their replies were not in the proper form. I, therefore, leave parties to bear their respective costs of this appeal.