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Delhi District Court

Anil Gupta & Ors. vs . Mahender Sagar & Ors. on 3 May, 2016

         IN THE COURT OF SH. SAMAR VISHAL, CIVIL JUDGE­10 
                       (CENTRAL)/DELHI
                                     SUIT NO. 346/07
                   Anil Gupta & Ors. Vs. Mahender Sagar & Ors.

ORDER

This order will dispose of an application under order XI Rule 21 r.w. section 151 CPC moved on behalf of plaintiff.

Plaintiff has filed this application stating that vide order dated 29/01/2014, the defendant was directed to answer the interrogatories(i) to (v) and also to produce the documents of ownership of lower ground floor of property no. E­58, Greater Kailash I, New Delhi on 27/03/2014. It is submitted that till date the defendant has neither answered the interrogatories nor discovered the documents. Rule 21 provides that where the defendant fails to comply with an order to answer interrogatories and inspection of documents, his defence is liable to be struck out and he is liable to be placed on the same position as if he had not defended. The defendant has failed to comply with the order of the court dated 29/01/2014 within the time fixed by the court. The defence of the defendant is liable to be struck out. It was prayed that this court may:

i).     Strike out the defence of the defendants;
ii).    Decree the suit of the plaintiff; and

iii). Pass such other order the Court may deem fit and proper in the circumstances of the case.

The application is opposed by the Ld. counsel for the Suit no. 346/07 Anil Gupta Vs. Mahender Sagar 1/5 defendant stating that the defendant has replied to the interrogatories. If there is any delay or any lacunas that may be ignored. The issue of substantial justice should be given primacy when pitted against technicalities. It is also argued by the counsel for the defendant that the lacunas if any, pointed out by counsel for the plaintiff are procedural in nature and may be ignored.

Vide order dated 29/01/2014, this court allowed an application of interrogatories of the plaintiff under order XI Rule 1 CPC, Order XI Rule 12 and 14 CPC. The defendant was directed to give the answers of the interrogatories and to produce the documents of ownership of the lower ground floor of the property in question. This order was to be complied on next date of hearing i.e. 27/03/2014. However, the answer to interrogatories came on 01/10/2015 and after 10 dates and that too after the application of the defendant of striking out the defence of the defendant has come on 11/05/2015. Therefore, there is no doubt about the fact that the reply of the interrogatories was considerably delayed. The pendency of review application cannot be considered as a substantial ground for delaying the directions of the court, more so when there was no such prayer of further extension of time to file the answer to interrogatories.

It has been further argued by Ld. Counsel for the plaintiff that the answer to the interrogatories have not been filed in the prescribed form as provided in form 3 in appendix C. It is submitted by Ld. Counsel for the plaintiff that the interrogatories have not been answered and further that the documents of ownership filed by the Suit no. 346/07 Anil Gupta Vs. Mahender Sagar 2/5 defendant does not show his ownership over the lower ground floor of the property in question.

I have given my thoughtful consideration to the issues raised today.

It is submitted by counsel for the plaintiff that the statutory provisions have to be strictly adhered to and when law prescribed a particular thing to be done in a particular manner then that thing has to be done in that manner only and none other. In support of his submissions, counsel for the plaintiff has relied upon two judgments 'Bijender Singh & Ors Vs. Union of India & Ors, 222(2015) DLT 616(DB) and Sanjay Kapur & Ors. Vs. Prashant Kapur & Anr., 222(2015) DLT 633.

I have given my thoughtful consideration to the issues raised by both the parties in respect of their contentions. It is well settled principle of law that stringent provisions of order XI Rule 21 CPC should be applied in extreme cases where there is contumacy on the part of the parties or a willful attempt to disregard the order of the court is established. Hon'ble Delhi High Court in CS (OS) 1804/2008 dated 12th September, 2013 in case Sh. Shravan Kumar Gupta Vs. Sh. Tara Chand Gupta & Ors. Observed­ "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 willful. 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 Suit no. 346/07 Anil Gupta Vs. Mahender Sagar 3/5 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.

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 willful attempt to disregard the order of the court is established.

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 willful 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 Suit no. 346/07 Anil Gupta Vs. Mahender Sagar 4/5 v. Grant 1875 W.N. 201."

In the present case although the defendant has filed interrogatories but admittedly with delay and there has been some deviation from proper form. It is not the case of the plaintiff that the answer given in the interrogatories are vague, incorrect or obscure. The delay in filing the interrogatories may be condoned as it does not seems to be deliberate and willful. Defendant may also be directed to give same answer which he has already given on oath as prescribed in form 3 in appendix 'C'.

The application of the plaintiff is therefore dismissed. The plaintiff shall have one more opportunity to file interrogatories in the prescribed form 3 in appendix C without any further delay.

The case was at the stage of evidence when this application has come. Therefore, put up again for further cross­examination of plaintiff on 05/07/2016.

Announced in the open Court                                           (SAMAR VISHAL)
On 03.05.2016                                                     CJ­10(Central)/Delhi




Suit no. 346/07                 Anil Gupta Vs. Mahender Sagar                       5/5