Gujarat High Court
Jayantibhai Ramdas Patel vs Prerak S/O Rakesh Mahendrakumar Desai ... on 13 September, 2017
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/15396/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15396 of 2017
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JAYANTIBHAI RAMDAS PATEL
Versus
PRERAK S/O RAKESH MAHENDRAKUMAR DESAI MINOR & 23
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Appearance:
MR RASHESH SANJANWALA, SENIOR ADVOCATE WITH MR MRUGEN K
PUROHIT, ADVOCATE for the Petitioner
MR MEGHA CHITALIYA AGP for the Respondents No. 3 - 5
MR ASIM J PANDYA, CAVEATOR for the Respondent No. 1
MR DC DAVE, SENIOR ADVOCATE FOR MR UDAYAN P VYAS,
CAVEATOR for the Respondent No. 8
NOTICE SERVED BY DS for the Respondents No.2-4,6-7,9-10,13,18-24
NOTICE UNSERVED for the Respondents No. 11 - 12 , 14 - 17
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 13/09/2017
ORAL ORDER
1. As it was pointed out that the Hon'ble Supreme Court has directed to decide the suit within time bound period, the present petition is heard in priority after issuing notice for final disposal.
2. The petitioner is the defendant no.1 of the Special Civil Suit No.516 of 2008 filed by the respondent nos.1 and 2 herein. The respondent nos.1 and 8 have appeared through their learned advocates. However, though served with the notice, respondent nos.2, 6, 7, 9, 10, 13, 22 and 24 have not appeared. The other respondents have refused to accept the notice.
3. For the sake of convenience, the respondents no.1 and 2 shall be referred as "plaintiffs", the petitioner shall be referred as "defendant no.1" and rest of the respondents shall be referred as co-
Page 1 of 30HC-NIC Page 1 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER defendants.
4. The plaintiffs claim to be grandsons of deceased Mahendrabhai Parsottambhai Desai who passed away on 31.01.1995 and whose lands were acquired under the Land Acquisition Act, 1894 (the Act). It is their say that the land acquired were ancestral land and as per the Hindu Law, they have got right, interest and share in the lands of their grandfather as co-parceners since their birth. It appears that the defendant no.1 claims to be legatee of the Will alleged to have been executed by the deceased Mahendrabhai Parsottambhai Desai and got probate issued in his favour which was later on revoked at the instance of some of the heirs of deceased Mahendrabhai Parsottambhai Desai and then review application was preferred by the defendant no.1 and settlement was stated to have been reached between the parties therein. Alleging such proceedings as fraudulent and invalid and alleging that the Will of deceased Mahendrabhai Parsottambhai Desai was false and fabricated and claiming to be entitled to undivided share in the co-parcenery properties and consequently, for share in the compensation awarded for the lands under the Land Acquisition Act, the plaintiffs have filed Special Civil Suit No.516 of 2008 for partition of their shares in the lands and in the compensation awarded under the Land Acquisition Act, for declaration that deceased Mahendrabhai Parsottambhai Desai had no right or authority to execute Will for co-parcenery properties and that the plaintiffs, defendants no.5 to 12, their heirs and defendants no.18 and 23 are entitled to 100% compensation awarded in the Land Acquisition Compensation Case No.18 of 2007. They have prayed to declare that probate proceedings, revenue proceedings etc. are null and void and to declare that on the basis of any order passed in such proceedings or the settlement arrived in such proceedings, the defendant no.1 is not entitled to get compensation and the compensation received by him should be ordered to be returned to the Government and to pass decree for disbursement of the Page 2 of 30 HC-NIC Page 2 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER compensation amongst plaintiffs and other co-parceners / heirs.
5. It appears that the plaintiffs had also filed Special Civil Application No.2159 of 2009 against the action of the Special Land Acquisition Officer in disbursing some compensation in favour of the defendant no.1. There was another petition filed being Special Civil Application No.2923 of 2009 wherein also the action of the Special Land Acquisition Officer was challenged in making final award and in disbursing the compensation as unlawful and unjust. In the said petition, amongst other directions issued, the defendant no.1 was directed to return - repay the compensation amount received by him to the Land Acquisition Officer. It appears that the matters were then taken to the Hon'ble Supreme Court and the Hon'ble Supreme Court after taking note of pendency of the civil suits between the parties and the reference under Section 30 of the Land Acquisition Act, directed to decide the same expeditiously.
6. In the proceedings of Special Civil Suit No.516 of 2008, the plaintiffs filed application Exhibit 105 on 12.03.2009 to direct defendant no.1 to produce Will dated 22.05.1995 of deceased Mahendrabhai Parsottambhai Desai, the probate obtained in Probate Application No.224 of 2001 and details of bank account regarding disbursement of the amount under the award. It is not in dispute that before application Exhibit 105 was filed, the defendant no.1 had filed his written statement. The defendant no.1 also filed reply to application Exhibit 105 stating that he had received Will from the Court but there was no question of producing the same as the application was not bona fide made. Learned 11th Additional Senior Civil Judge, Vadodara partly allowed such application and ordered defendant no.1 to produce original Will and probate under Order XI Rule 14 of the Civil Procedure Code, 1908 ("the Code") or to file an affidavit.
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7. After the above order, the plaintiffs filed application Exhibit 146 on 08.07.2009 to direct the defendant no.1 to immediately produce the original Will, and the original probate certificate or in alternative to strike out his defence and to proceed with the suit exparte as if the defendant no.1 has not filed written statement / reply. The defendant no.1 then filed affidavit Exhibit 149 stating that he had produced the original Will in the proceedings of the probate application and, thereafter, he was not given the original Will by learned Senior Civil Judge, Vadodara and, therefore, the original Will was not with him. After the above said affidavit, the learned advocate for defendant no.1 filed an application / pursis Exhibit 154 stating that in context of the order made by the Court for production of the Will and the probate, he talked to the defendant no.1 on the declaration made by him that he had not received Will from the Court, and requesting to grant seven days time to get proper explanation and information and for making efforts to find out the Will, to be produced before the Court if available.
8. Learned 10th Additional Senior Civil Judge, Vadodara however passed order dated 23.11.2009 on the application Exhibit 146 directing defendant no.1 to produce the original Will in the Court by 11.12.2009 with further order to close the right of his defence and to proceed with the suit if fails to produce the Will.
9. After the above order was made by the learned Judge, the defendant no.1 filed application Exhibit 172 under Section 151 of the Code stating that he has already filed his defence before Court and consequence of non-compliance of the order passed under Order XI Rule 14 of the Code cannot result in striking of defence. In the said application, the following prayers were made :-
Page 4 of 30HC-NIC Page 4 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER a. The hearing of the matter in a regular and usual course of manner may kindly be ordered and directed to be caused and completed and consequently the defendant no.1 herein may kindly be considered to and be entitled for all the rights of defense in the present proceedings for all the purposes and in every respect all through as envisage by Code of Civil Procedure, 1908.
b. Any other just and proper relief which Your Honour deems fit may be granted considering the facts and circumstances of the case in favour of the defendant no.1 in the interest of truth substantial justice legality and above all to preserve the sanctity of the principle that "procedural law cannot be permitted to pollute the substantive law.
10. The learned Judge, however, rejected such application vide order dated 14.01.2010 on the ground that the order made below application Exhibit 146 could be challenged in the appeal and he has no power to interfere with his own order. The defendant no.1, thereafter, filed Special Civil Application No.15178 of 2010 seeking to set aside the orders made below application Exhibit 105, application Exhibit 146 and application Exhibit 172. This Court partly allowed the petition vide order dated 30.06.2017 and quashed and set aside the order passed below application Exhibit 172 and remitted the matter to the learned Judge for fresh consideration. Following are the observations made in para-21 to 24, 26 and 27 of the above referred order.
21. The perusal of the order dated 19.06.2009 below Exhibit-105, whereunder, the petitioner was directed to either produce original Will and Probate or to file an affidavit reveals that in paragraph No.4 the learned trial Judge has very clearly stated that the Will and Probate are relevant documents, and therefore, they should be ordered to be produced under Order 11 Rule 14. This order is not appellable under Order 43 Rule 1.
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22. The learned trial Judge while passing the order dated 23.11.2009 below Exhibit-146 without perusing the order passed below Exhibit-105, has recorded the order that the petitioner was directed to produce the original Will and Probate, and though, the probate is produced, the petitioner has failed to produce the original Will. Though, it transpires from the Rojkam of Misc. Application No.224 of 2001 that the original Will was return to the petitioner. According to the learned trial Judge, the defence of the petitioner can be struck of Under Order 11 Rule 21 for non production of the Will, but, as a last chance, the petitioner was directed to produce the Will by 11.12.2009 failing which that his defence stand struck of. Therefore, Exhibit- 172 application preferred by the petitioner to permit him to contest the suit on merit by considering his defence came to be rejected essentially on the ground of earlier order passed below Exhibit-105 and Exhibit-146 were not challenge before the higher forum and the Court had passed the order had no jurisdiction to interfere with his own orders.
23. The reading of order below Exhibit-105 makes it manifestly clear that while passing the order the trial Court, conscious of the provisions, namely, Order 11 Rule 14 to invoke its jurisdiction for directing the petitioner to produce the original Will and Probate.
24. The various decisions relied upon by Mr. Sanjanwala, learned senior counsel makes it very clear that the defence cannot be struck of for non-compliance of order passed nor Order 11 Rule 14. It is only when there is non-compliance of Order as envisaged under Order 11 Rule 21 the defence can be struck of. The learned trial Judge while considering the Exhibit-172 application of the petitioner without examining the orders passed below Exhibit-105 and Exhibit-146 has merely dismissed the application for permitting the petitioner to contest the suit on merit only on the ground of order passed below Exhibit-105 and Exhibit-146 are not for attain finality and the Court has no jurisdiction to interfere with its own order. In my opinion, the reasons adopted by the learned trial Judge for dismissing the Exhibit-176 cannot be countenanced. I am, therefore, of the view that instead of delving upon this preliminary objections raised by the learned advocates for the respondent as regards the maintainability of the present petition without expressing any opinion an orders passed by the learned trial Judge below Exhibit-105 and Exhibit-146, it would be apposite to refer Exhibit-172 to the Page 6 of 30 HC-NIC Page 6 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER Trial Court for fresh consideration.
25. xxx xxx xxx
26. Since this Court is informed that the Supreme Court has expedited the trial Court of the suit, the learned trial Judge is expected to decide the Exhibit-176 application on or before 17th July, 2017 and the learned advocates for the parties are requested to cooperate with the learned trial Judge.
27. It is made clear that this Court has not expressed any opinion on merits of Exhibit-172 application and the learned trial Judge shall decide it independently in accordance with law without being influenced by this order. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.
11. The application Exhibit 172 was then taken up for fresh consideration by learned 6th Additional Senior Civil Judge, Vadodara as directed by this Court, and after fresh consideration of the application learned Judge has rejected the application Exhibit 172 vide order dated 05.08.2017. It is this order which is under challenge in the present petition filed under Article 227 of the Constitution of India.
12. Learned senior advocate Mr.Rashesh Sanjanwala appearing with learned advocate Mr.Mrugen Purohit for defendant no.1 submitted that undisputably, the defence of the defendant no.1 to the suit was ordered to be struck-off for non-compliance of the order made below application Exhibit 146 for production of the document under Order XI Rule 14 of the Code. Mr.Sanjanwala submitted that on account of non-availability of the original Will with defendant no.1, it was not possible for defendant no.1 to comply with the order made under Order XI Rule 14 of the Code. Mr.Sanjanwala submitted that striking off the defence of the defendant no.1 for non-production of the document pursuant to the order made under Order XI Rule 14 of Page 7 of 30 HC-NIC Page 7 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER the Code is not the consequence provided in Order XI Rule 21 of the Code. Mr.Sanjanwala submitted that the parties to the suit have rival claims to the suit lands and there is a history of earlier litigations and just to see that the suit remained undefended by defendant no.1, the plaintiffs mischievously resorted to the provisions of the Code which are not applicable to take away the defence of the defendant no.1 under the guise that defendant no.1 is responsible to present falsehood before the Court. Mr.Sanjanwala submitted that it was stated on behalf of the plaintiffs, before the Hon'ble Supreme Court that the right from 2001 onwards, the Will was not in the custody of the defendant no1, but was in the custody of one Shri Champalal Jayvantrai Seth who later on sought impleadment as party in the proceedings before the Hon'ble Supreme Court claiming to be stakeholder in the matter. Mr.Sanjanwala submitted that striking off the defence is drastic measure and cannot be taken de-hors the provisions of the Order XI Rule 21 of the Code and if it is found that the defence could not be struck-off in exercise of Order XI Rule 21, the Court which makes such order has inherent powers under Section 151 of the Code to remedy it. Mr.Sanjanwala submitted that in earlier round of litigation of Special Civil Application No.15178 of 2010, when this Court in clear term recorded that for non-compliance of the order made under Order XI Rule 14 of the Code, the defence cannot be struck-off under Order XI Rule 21 of the Code, the learned Judge ought to have granted the prayer made in the application Exhibit 172 permitting the defendant no.1 to take defence to the suit. Mr.Sanjanwala submitted that the learned Judge, however, committed serious error in not allowing the application Exhibit 172 though the learned Judge has jurisdiction under Section 151 of the Code to allow defendant no.1 to continue to take defence in the suit. Mr.Sanjanwala has relied on the following judgments.
(1) Shri Baba Shiva Sambhu and another Vs. Raj Mohan Deb Page 8 of 30 HC-NIC Page 8 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER Natha and others, reported in AIR 1966 Tripura 16;
(2) Amarsinh Vs. Chaturbhuj and other, reported in AIR 1957 Rajasthan 367;
13. Learned advocate Mr.Asim Pandya appearing for plaintiff no.1 submitted that the petitioner who came with falsehood was rightly denied the right to defend the suit. He submitted that the orders passed below application Exhibit 105 and application Exhibit 146 were not either interfered with or set aside by this Court in earlier round of litigation and, therefore, those orders could not be allowed to be nullified or set at naught by ingenious prayer with clever drafting in application Exhibit 172. Mr.Pandya submitted that the powers under Section 151 of the Code cannot be used and rightly not used by the learned Judge to upset earlier judicial orders when the Code provides for legal remedy against those orders. Mr.Pandya submitted that the cardinal principle is that when law provides that a particular thing is to be done in a particular manner, it should be done in that manner only and in no other manner and, therefore, no fault could be found with the impugned order made by the learned Judge. Mr.Pandya submitted that the discretionary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India may not be exercised in favour of the petitioner whose case rests on total falsehood and who is guilty of committing criminal offence. Mr.Pandya submitted that the entire Order XI of the Code is a composite scheme providing for interrogatories, discovery, inspection and ultimately, the production of the documents and, therefore, the order for production of document made under Order XI Rule 14 of the Code could be said to be an order made in under Order XI, Rule 12 and 13 and, therefore, it cannot be said that the defence of the defendant no.1 could not have been struck off under Order XI Rule 21 of the Code. Mr.Pandya submitted that the powers under Article 227 of the Constitution are limited to correct jurisdictional error but when the trial Court has Page 9 of 30 HC-NIC Page 9 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER passed the orders within its jurisdiction for striking out the defence of the defendant no.1 and has not committed any jurisdictional error in making the impugned order, this Court may not interfere with the impugned order. Mr.Pandya has relied on the following judgments.
(1) Zuari Cement Vs. Regional Director E.S.I.C. Hyderabad and others, reported in AIR 2015 SC 2764.
(2) State of U.P. and Ors. Vs. Roshan Singh, reported in AIR 2008 SC 1190.
(3) National Institute of Mental Health and Neuro Sciences Vs. C. Parameshwara, reported in AIR 2005 SC 242.
(4) S. P. Chengalvaraya Naidu Vs. Jagannath and others, reported in AIR 1994 SC 853.
(5) Dalip Singh vs State Of U.P. & Ors reported in (2010) 2 SCC 114.
(6) Lekhraj Sathramdas Lalvani Vs. N. M. Shah, Deputy Custodian cum Managing Officer, Bombay and others, reported in AIR 1966 SC 334.
(7) Ram Prakash Agarwal and another Vs. Gopi Krishan and others, reported in AIR 2013 SC 296.
(8) Waryam Singh and another Vs. Amarnath and another, reported in AIR 1954 SC 215.
(9) Management of Nilpur Tea Estate, Vs. State of Assam and others, reported in AIR 1996 SC 38.
(10) Sadhana Lodh Vs. National Insurance Co. Ltd. and another, reported in AIR 2003 SC 1561.
14. Learned senior advocate Mr.D. C. Dave appearing with learned advocate Mr.Udayan Vyas for the defendant no.8 submitted that the application under Section 151 of the Code to restore the defence to Page 10 of 30 HC-NIC Page 10 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER the defendant no.1 was not only not maintainable but was totally misconceived inasmuch as when the defence was already struck out for non-compliance of the order made by the Court in the suit proceedings, the remedy is to be taken under the specific provisions of the Code. Mr.Dave submitted that such remedy, though was not taken, however, when the orders made below applications Exhibit 105 and 146 were sought to be challenged before this Court in earlier round of litigation, this Court did not interfere with the same and, therefore, the learned Judge has committed no error in observing that he has no jurisdiction to open the issues which were finally concluded and to make any order in exercise of powers under Section 151 of the Code to restore the defence to the defendant no.1 which was already struck out. Mr.Dave submitted that the litigant who was not vigilant on his right to take proper remedy in law cannot be permitted to invoke inherent powers under Section 151 of the Act. Mr.Dave submitted that this Court while remanding the application at Exhibit 172 for fresh consideration, made it very clear that it was not only not interfering with the orders below applications Exhibit 105 and 146 but directed to decide the application Exhibit 172 independently and in accordance with law and without being influenced by the observations made in the order. Mr.Dave submitted that in view of such clear observation made by this Court in earlier round of litigation, when the learned Judge has decided the application Exhibit 172 in accordance with law, this Court may not interfere with the impugned order and may not grant relief as prayed for in the present petition in exercise of the powers under Article 227 of the Constitution of India.
15. The Court having heard learned advocates for both the sides finds that on application Exhibit 105, the Court below after observing that the documents of the probate and Will being relevant documents should be ordered to be produced under Order XI Rule 14 of the Code, ordered the defendant no.1 to produce original Will and Page 11 of 30 HC-NIC Page 11 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER probate under Order XI Rule 14 of the Code or to file an affidavit. The defendant no.1 then filed affidavit on 18.07.2009 stating that he was not given back the Will by the Court of learned Senior Civil Judge and, therefore, the Will was not with him and as stated above, advocate for defendant no.1 also presented an application stating that if the Will was available, it would be produced as per the order of the Court. Then on the application at Exhibit 146 filed by the plaintiffs for immediate production of the Will and the probate certificate or in the alternative to strikeout the defence of the defendant no.1 and to proceed with the suit ex-parte against the defendant no.1, the order was made to produce the Will by 11.12.2009 and to strikeout the defence of the defendant no.1 and to proceed with the suit if the defendant no.1 failed to produce the Will. Thus, the order for striking out of the defence made on application Exhibit 146 was only for non- production of the Will by the defendant no.1 pursuant to the order made below application Exhibit 105.
16. The Order XI of the Code which encompasses difference stages for the parties to the suit to get the documents which they find relevant for deciding controversy in the suit, also confers the powers under Rule 21 to the Court to strike out the defence of the defendant on defiance shown by the defendant to the orders to answer interrogatories, for discovery or inspection of documents but not for the order made under Order XI, Rule 14 of the Code. At this stage, in the context for exercise of powers for striking out the defence of the defendant, reference to some judgments need to be made.
17. In the case of M/s.Babbar Sewing Machine Company Vs. Trilok Nath Mahajan, reported in (1978) 4 SCC 188, the Hon'ble Supreme Court has held and observed in para-10 to 16 as under:-
10. In this appeal, two questions are involved: firstly, whether the trial court was justified in striking out the defence of the defendant under O. XI, R. 21 of the C. P. C., 1908, and Page 12 of 30 HC-NIC Page 12 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER secondly, whether the High Court was right in observing that in view of the clear language of O. XI, R. 21 the defendant cannot be permitted to cross-examine the plaintiff's witnesses.
11. It is a travesty of justice that the trial court should have, in the facts and circumstances of the case, passed an order striking out the defence of the defendant under O. XI, R. 21 and that the High Court should have declined to act it aside.
The penalty imposed by O. XI, R. 21 is of a highly penal nature, and ought only to be used in extreme cases, and should in no way be imposed unless there is a clear failure to comply with the obligations laid down in the rule.
12. Order XI, Rule 21 of the civil P. C. reads:
"21. Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect, and an order may be made accordingly."
13. Section 136 of the Civil P. C., 1882, corresponding to O. XI, R. 21 of the Civil P. C. 1908, was based upon O. XXXI, R. 20, now replaced by O. XXIV, R. 16 framed under the Judicature Act. The practice of the English Courts is, and it has always been, to make the order a conditional one, and to grant a little further time for compliance. In practice this provision is virtually obsolete.
14. Even assuming that in certain circumstances the provisions of O. XI, R. 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 wilful. 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 O XI, R. 21, unless the court is satisfied that the plaintiff was wilfully withholding in formation refusing to answer interrogatories or by withholding the documents which be ought 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, Page 13 of 30 HC-NIC Page 13 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER (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 O. XI, R. 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.
15. It is well settled that the stringent provisions of O. XI, R. 21 should be applied only in extreme cases, where there is contumacy on the part of the defendant or a wilful attempt to disregard the order of the court is established.
16. An order striking out the defence under O. XI, R. 21 of the Code should, therefore, not be made unless there has been obstinacy or contumacy on the part of the defendant or wilful 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. 1. p 581, Khajah Assenoolla Joo v. Khajah Abdool Aziz, (1883) ILR 9 Cal 923; Banshi Singh v. Palit Singh, (1908) 7 Cal LJ 295; Allahahad Bank Ltd. v. Ganpat Rai. ILR 11 Lah 209: (AIR 1929 Lah 750); Haigh v. Haigh, (1885) 31 Ch D 478 and Twycroft v. Grant, (1975) WN 201.
18. In the case of Modula India Vs. Kamaksya Singh Deo, reported in (1988) 4 SCC 619, though the question as regards the striking out the defence was considered in the context of default of payment of rent under the Rent Act, however, observations in para- 16 of the judgment need to be noticed.
"16. A provision like the one in Section 17(3) is a provision in terrorem. It penalises the defendant for certain defaults of his. As pointed out by the decisions earlier referred to, the court will act with great circumspection before striking out the defence of a tenant under this provision. This Court has interpreted provisions like this in rent acts to say that striking off of defence is not obligatory on the court merely because there is a default and that it is a matter for exercise of great judicial restraint. But it does not necessarily follow that, once the defence is struck off, the defendant is completely helpless and that his conduct of the case should be so crippled as to render a decree against him inevitable. To hold so would be to impose on him a punishment disproportionate to his default. The observations made by this Court, while discussing the Page 14 of 30 HC-NIC Page 14 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER provisions of the Code of Civil Procedure, and the Original Side Rules of the Calcutta High Court which deal with somewhat analogous situations, cannot be lightly brushed aside. Those decisions have enunciated a general equitable principle. We are also of the same view that provisions of this type should be construed strictly and that the disabilities of a person in default should be limited to the minimum should be limited to the minimum extent consistent with the requirements of justice. This should be all the more so in the context of a tenancy legislation, the main object of which is to confer protection on tenants against eviction by the landlord, unless certain statutory conditions are fulfilled. The provisions should not be given any wider operation than could have been strictly intended by the legislature."
18.1 In Shri Baba Shiva Sambhu and another (supra) relied on by Mr.Sanjanwala, the Tripura High Court has held and observed in para - 6 as under:
6. Now, from the terms of O. 11, R. 21 set forth above, if is clear that even assuming that the plaintiff had been 'called upon by the Court to produce certain documents in original and that he had failed to do so as the documents were lying with the Settlement Department, it cannot he postulated that R. 21 is at all attracted into application. Refusal to produce certain documents (see O- 11 R. 14) is not a lapse within the meaning of R. 21 at all and, therefore, the penal consequences prescribed thereunder could not have been imposed. There is ample authority for holding that an order for production of documents under R. 14 is not one of the orders contemplated under this rule and, therefore, any disobedience thereto could not be punished under O. 11 R. 21. See Lyalpur Sugar Mills and Co. v. R.C.G. Sahai Cotton Mills and Co., AIR 1922 All. 235; Subbayyar v. Ramanathan Chettiar, AIR 1924 Mad 582; Subramania Ayyar v. Bomer Cooty Haji, AIR 1933 Mad 870; Manohar Das v. Darbara Singh, AIR 1933 Lah 248;
Tafazzul v. Shah Mohammad, AIR 1949 All 261; Shamalnl Guruprasad v. Ganpatlal, AIR 1954 Madh B 65.
19. In the case of Ismail Pillai Mohammed Haneefa Vs. Mohammedali Vaidyan Ibrahim Kunju Vaidyan reported in AIR 2007 Kerala 276, the Kerala High Court has held and observed in paras-8, 9, 11, 13 as under:-
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8. The provisions of Rule 21 has to be exercised with care and caution and is to be the last resort. A plaint shall not be thrown out or the defence struck off without adequate reasons. The test laid down under Rule 21 is whether the default is wilful. If it is on the part of the plaintiff it entails in the dismissal of the suit. Such an order ought not to be made unless Court is satisfied that he was wilfully withholding information, refusing to answer the interrogatories or withholding the documents which he ought to discover. In such an event, plaintiff must take the consequence of having his suit dismissed. On the other hand, if it is the case of the defendant his defence is liable to be struck off and he is to be placed in the same position as if he had not defended the suit. But it is settled legal position that Court should exercise the stringent provisions only in extreme cases, where there is contumacy on the part of the defendant or a wilful attempt to disregard the order of the Court. If there was no default much less any wilful default on the part of the defendant to comply with the order of the Court, Court is not to exercise the stringent power. Apex Court in Babbar Sewing Machine Company's case (AIR 1978 SC 1436, para 20) (supra) held:-
"It is settled law that the provisions of O. XI, R. 21, should be applied only in extreme cases where obstinacy or contumacy on the part of the defendant or a wilful attempt to disregard the order of the Court is established. As pointed out by Lord Russell, C.J. in Reg. v. Senior, (1899) 1 QBD 283 and affirmed by Cave L.C. in A. B. Tamboli v. G.I.P. Railway, ILR 52 Bom 169 : (AIR 1928 PC 24) "Wilfully" means that "the act is done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the act goes with it".
9. Apex Court considered the consequence of striking off the defence under Rule 21 of Order XI and whether a defendant has a right to cross-examine the witness examined on the side of the plaintiff or to lead evidence when his defence is struck off in Modula India's case (AIR 1989 SC 162) (supra). Their Lordships held that while it is true that in a broad sense the right of defence takes in within its canvass all aspects including the demolition of the plaintiff's case by cross- examination of his witnesses, it would be equally correct to say that cross-examination of plaintiff's witnesses really constitutes a finishing touch which completes the plaintiff's case. It was held (at p. 175 of AIR) :-
"It is a well established proposition that no oral testimony can Page 16 of 30 HC-NIC Page 16 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER be considered satisfactory or valid unless it is tested by cross- examination. The mere statement of the plaintiff's witnesses cannot constitute the plaintiff's evidence in the case unless and until it is tested by cross-examination. The right of the defence to cross-examine the plaintiff's witnesses can, therefore be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiff's evidence cannot be acted upon.
It was also held that granting of permission to the defendant to cross-examine the witness is one thing and leading evidence in support of his own case is different. Their Lordships held (at pp. 175-176 of AIR) :-
"We therefore think that the defendant should be allowed his right of cross-examination and arguments. But we are equally clear that this right should be subject to certain important safeguards. The first of these is that the defendant cannot be allowed to lead his own evidence. None of the observations or decisions cited have gone to the extent of suggesting that in spite of the fact that the defence has been struck off, the defendant can adduce evidence of his own or try to substantiate his own case".
10. xxx xxx xxx
11. The crucial question then is whether on the facts of this case trial Court was justified in striking off the defence under Rule 21 of Order XI of Code of Civil Procedure. To attract Rule 21, the party shall fail to comply with an order to answer the interrogatories or for discovery or inspection of documents. I.A. 837 of 1987 was filed for a direction to the appellant to produce the document. It was not an application either to answer any interrogatories as provided under Rule 1 or for discovery of document as provided under Rule 12 of Order XI of Code. Even though Rule 11 was shown in that application, it is only an application filed under Rule 14 of Order XI. The power provided under Rule 21 can be invoked only within the ambit of the said section. Such an order could be passed only if the Court had earlier passed an order under Rule 2 or 11 to answer the interrogatories, or an order under Rule 12 to make discovery on oath of the documents or an order for inspection of documents under Rule 15 of Order XI of the Code. An order passed by the Court to the defendant to produce such document in his possession is only an order under Rule 14 of Order XI. Its non-compliance will not visit the stringent order Page 17 of 30 HC-NIC Page 17 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER provided under Rule 21 of Order XI of the Code. Rule 14 of Order XI reads :-
"Production of documents :- It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just".
12. xxx xxx xxx
13. An identical question was considered by a learned single Judge of Madras High Court in Chinnappan's case (AIR 1989 Mad 314) (supra). Learned Single Judge, analysing the various provisions of Rule 11 held that the application directing the party to produce the document, as in the present case, is not an application contemplated under Rule 12 of Order XI or Rule 1 of Order XI and therefore the defence could not have been struck off under Rule 21. The same position was followed by another Single Judge of Allahabad High Court in Praveen Kumar's case (AIR 1994 All 153) (supra) I agree with the view expressed by the learned Judges in those decisions. Learned Munsiff on the facts of the case should not have struck off the defence for the non-production of the document directed to be produced as per order in I.A. 837 of 1987. At best, Court could have drawn adverse inference for the non-production of the document as directed. Hence the decree and judgment passed by Courts below are set aside.
20. This Court after expressing in its judgment and order dated 30.06.2017 passed in Special Civil Application No.15178 of 2010, that the defence of the defendant no.1 could not be struck off for non-compliance of the order passed under Order XI Rule 14 and finding that the learned Judge considered and decided the application Exhibit 172 without examining the orders passed below applications Exhibit 105 and 146, decided to remit the matter to learned Judge for fresh consideration of application Exhibit 172. It is true that it was also observed by this Court that the learned Judge was to decide the application Exhibit 172 independently, in accordance with law and Page 18 of 30 HC-NIC Page 18 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER without being influenced by the said judgment and order. But the question arises whether on fresh consideration of the matter, the learned Judge could have permitted the defendant no.1 to defend the suit. The learned senior advocate Mr.Sanjanwala submitted that since, the right to defend the suit is a basic and important right, it was within the inherent powers of the learned Judge to restore such right, especially, when this Court had clearly opined in earlier judgment that the defence of the defendant no.1 could not be struck off for non-compliance of the order passed under Order XI Rule 14. On the other hand, learned advocate Mr.Pandya and learned senior advocate Mr.Dave would submit that when there are specific provisions in the Code to take particular remedy in particular manner, resort to Section 151 of the Code is not permissible nor even the High Court would confer such jurisdiction to the lower Court.
21. In the case of Roshan Singh (supra), relied on by learned advocate Mr.Pandya, the Hon'ble Supreme Court has held and observed in paras-1 to 8 as under:
1. Leave granted.
2. Challenge in these appeals is to the judgment of the learned Single Judge of the Allahabad High Court allowing the Civil Misc. Writ Petitions 17464 of 1984, 8825 of 1995 and 19050 of 1995. Challenge in the first writ petition was to the order passed by the Prescribed Authority under the U.P. Imposition of Ceiling on Land Holdings Act, 1954 (in short the Act) and the appellate order passed by the Appellate Authority.
3. Background facts in a nutshell are as follows :
After issuance of notice under Section 10(2) of the Act an area of 17 Bighas 10 Biswas and 2 Biswansis of land of the respondent- Roshan Singh was declared as surplus. Thereafter consolidation operation commenced. Proceedings under Section 107 of the Act were initiated on 28-3-1974 and the Page 19 of 30 HC-NIC Page 19 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER respondent-Roshan Singh was granted opportunity to file his response to the notice. The objection was filed on 25-5-1974 and by order dated 14-1-1980 the Prescribed Authority after determining the surplus gave opportunity to the respondent to indicate the choice of land to be retained. The respondent did not indicate any choice. Therefore by order dated 8-4-1982, 17 Bighas 10 Biswas and 2 Biswansis of land was declared as surplus. Thereafter, possession of the surplus land was taken.
There is a provision for appeal under Section 12 of the Act. But the respondent-Roshan Singh did not prefer any appeal. On the other hand on 17-2-1984 an application titled under Section 151 of the Civil Procedure Code, 1908 (in short CPC) was filed. Stand taken was that in the consolidation proceedings different area was indicated and, therefore, holding was reduced. Objections were filed by the functionaries of the State on 23-3-1984 and 30-3-1984. Considering the objections the Prescribed Authority by order dated 3-4-1984 rejected the claim of the respondent-Roshan Singh. An appeal was preferred by him i.e. Revenue Appeal No.24 of 1984 in the Court of III Additional District Judge, Banda, U.P. The appeal was dismissed on 21-8-1984. Civil Writ Petition No.17464 of 1984 was filed before the Allahabad High Court. Subsequently, the surplus land was distributed. These were challenged in Civil Writ Petition No.8825 of 1995 and 19050 of 1995. The first writ petition was allowed by a learned Single Judge with the following observations :
"Having heard Sri V.K.S. Chaudhary, learned Senior counsel appearing on behalf of the petitioner and Smt. Archana Srivastava, learned Standing Counsel for the respondents, this Court is of the view that as the reduction of area made during the consolidation operation is made for public purposes, the petitioner is entitled to the benefit of said reduction. The submission made by the learned counsel for the petitioner has got force and therefore, the writ petition deserves to be allowed."
4. It is to be noted that the above quoted portion was the only basis on which the writ petition was allowed. Two orders were also allowed following the decision rendered in the first case.
5. Learned counsel for the appellants submitted that the approach of the High Court is clearly erroneous. Firstly, petition under Section 151 was not maintainable when statutorily an opportunity and/or forum is provided which was not availed. Further the proceedings under the Act and the Consolidation Act operate in different fields and, therefore, Page 20 of 30 HC-NIC Page 20 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER even if the area was different same was on the basis of the parameters under the Consolidation Act and a belated attempt to re-open concluded issues by resorting to Section 151 was clearly impermissible.
6. Learned counsel for the respondent submitted that there cannot be two different areas; one under the Act and the other the Consolidation Act. Therefore, the High Court was justified in its view.
7. The principles which regulate the exercise of inherent powers by a court have been highlighted in many cases. In matters with which the CPC does not deal with, the Court will exercise its inherent power to do justice between the parties which is warranted under the circumstances and which the necessities of the case require. If there are specific provisions of the CPC dealing with the particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter, the inherent powers of the Court cannot be invoked in order to cut across the powers conferred by the CPC. The inherent powers of the Court are not to be used for the benefit of a litigant who has remedy under the CPC. Similar is the position visa-vis other statutes. The object of Section 151, CPC is to supplement and not to replace the remedies provided for in the CPC. Section 151, CPC will not be available when there is alternative remedy and same is accepted to be a well-settled ratio of law. The operative field of power being thus restricted, the same cannot be risen to inherent power. The inherent powers of the Court are in addition to the powers specifically conferred to it. If there are express provisions covering a particular topic, such power cannot be exercised in that regard. The section confers on the Court power of making such orders as may be necessary for the ends of justice of the Court. Section 151, CPC cannot be invoked when there is express provision even under which the relief can be claimed by the aggrieved party. The power can only be invoked to supplement the provisions of the Code and not to override or evade other express provisions. The position is not different so far as the other statutes are concerned. Undisputedly, an aggrieved person is not remediless under the Act.
8. The conclusions of the High Court are not only cryptic but also without indication of any basis. As rightly contended by learned counsel for the appellant long after the period provided for preferring an appeal under Section 12 of the Act, Page 21 of 30 HC-NIC Page 21 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER the application under Section 151, CPC was filed.
22. In the case of National Institute of Mental Health and Neuro Sciences (supra), relied on by learned advocate Mr. Pandya, the Hon'ble Supreme Court has held and observed in paras- 12 as under :
12. In the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal reported in (AIR 1962 SC 527), it has been held that inherent jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed by section 151, CPC, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. In the present case, as stated above, section 10, CPC has no application and consequently, it was not open to the High Court to bye-pass section 10, CPC by invoking section 151, CPC.
23. From the case of Zuari Cement (supra), Mr.Pandya relied on paras-14 and 15 wherein following observations are made.
14. As per the scheme of the Act, appropriate Government alone could grant or refuse exemption. When the statute prescribed the procedure for grant or refusal of exemption from the operation of the Act, it is to be done in that manner and not in any other manner. In State of Jharkhand and others v. Ambay Cements and another (2005) 1 SCC 368 : (AIR 2005 SC 4168), it was held that "It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way". In Babu Verghese and others v. Bar Council of Kerala and others (1999) 3 SCC 422 :
(AIR 1999 SC 1281), it was held as under:
"31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor (45 LJCH 373) which was followed by Lord Roche in Nazir Ahmad v. King Emperor, (AIR 1936 PC 253) who stated as under:Page 22 of 30
HC-NIC Page 22 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER "[W]here a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P. (AIR 1954 SC 322) and again in Deep Chand v. State of Rajasthan (AIR 1961 SC 1527). These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh (AIR 1964 SC
358) and the rule laid down in Nazir Ahmad case (AIR 1936 PC
253) was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law."
15. Where there is want of jurisdiction, the order passed by the court/tribunal is a nullity or non-est. What is relevant is whether the Court had the power to grant the relief asked for. ESI Court did not have the jurisdiction to consider the question of grant of exemption, order passed by the ESI Court granting exemption and consequently setting aside the demand notices is non-est. The High Court, in our view, rightly set aside the order of ESI Court and the impugned judgment does not suffer from any infirmity warranting interference.
24. But it does not appear from the above judgments that the Court cannot remedy the wrong done to the party in exercise of inherent powers under Section 151 of the Code. When valuable right of a party to defend the suit is taken away by applying the provisions whereunder such right could not have been taken away, it is always open to the Court to exercise inherent powers under Section 151 of the Code to do substantial justice especially, when non-exercise of such powers is likely to result into miscarriage of justice. In the case of K. K. Velusamy Vs. N. Palanisamy reported in (2011) 11 SCC 279, the Hon'ble Supreme Court has summarised the principles for exercise of powers under Section 151 of the Code in para-12 as under:
12. The respondent contended that section 151 cannot be used for re-opening evidence or for recalling witnesses. We are not able to accept the said submission as an absolute proposition. We however agree that section 151 of the Code Page 23 of 30 HC-NIC Page 23 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER cannot be routinely invoked for reopening evidence or recalling witnesses. The scope of section 151 has been explained by this Court in several decisions (See : Padam Sen v. State of UP, AIR 1961 SC 218; Manoharlal Chopra v. Seth Hiralal, AIR 1962 SC 527; Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993; Ram Chand and Sons Sugar Mills (P) Ltd. v.
Kanhay Lal, AIR 1966 SC 1899; Nain Singh v. Koonwarjee, 1970 (1) SCC 732 : (AIR 1970 SC 997); The Newabganj Sugar Mills Co.Ltd. v. Union of India, AIR 1976 SC 1152; Jaipur Mineral Development Syndicate v. Commissioner of Income Tax, New Delhi, AIR 1977 SC 1348; National Institute of Mental Health and Neuro Sciences v. C Parameshwara, 2005 (2) SCC 256 : (AIR 2005 SC 242); and Vinod Seth v. Devinder Bajaj, 2010 (8) SCC 1) : (2010 AIR SCW 4860). We may summarize them as follows :
(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is 'right' and undo what is 'wrong', that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive, section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co-extensive with the need to exercise such power on the facts and circumstances.
(c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may be exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.
(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature.
Page 24 of 30HC-NIC Page 24 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER
(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.
(f) The power under section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.
24.1 At this stage, it is appropriate to refer the decision of the Hon'ble Supreme Court in the case of Paramount Enterprises Limited and others Vs. S. D. Surie, reported in (2014) 14 SCC 542 wherein it is held and observed in para-3 to 8 as under:
3. An application (IA No.516 of 1994) was made by the original plaintiff seeking amendment in the plaint in 1994 whereby an alternative prayer for partition was sought to be added. The application was granted on 26-5-2006. As per the order passed by the Court on 26-5-2006, the amended plaint was to be filed within two weeks therefrom and Defendants 1 to 8 were permitted to file their amended written statement within four weeks of the filing of the amended plaint. The fact of the matter is that within two weeks from 26-5-2006, the amended plaint was not filed and it was filed on 7-2-2007. The explanation for delay in filing the amended plaint is that Defendant 9 was impleaded and some error crept in the order passed by the Court on 26-5-2006 which was corrected on 2-2- 2007.
4. Be that as it may, Defendants 1 to 8 did not file the amended written statement within the time granted by the court and also for some time thereafter. On 8-4-2008, the trial Judge closed the right of Defendants 1 to 8 in filing their written statement to the amended plaint.
5. As application (IA No.3637 of 2009) was made by Defendants 1 to 8 under Section 151 of the Code of Civil Procedure, 1908 for recalling the order dated 8-4-2008. The trial Judge in the High Court allowed the above application on 8-9-1009 and directed that the amended written statement by Page 25 of 30 HC-NIC Page 25 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER Defendants 1 to 8 be taken on record on their paying costs of Rs.50,000 to the plaintiff within three weeks therefrom.
6, The order dated 8-9-2009 was challenged by the present Respondents 1 to 4 in an intra-court appeal. The Division Bench of the High Court allowed the appeal on 19-9-2011 and set aside the order dated 8-9-2009. It is from this order that the present appeal has arisen.
7. The issue regarding the maintainability of intra-court appeal was raised by the present appellants (Defendants 1 to 8 ) before the Division Bench of the High Court. The Division Bench was, however, not impressed by the objection on two grounds: (i) the impugned order was in the nature of a review of the order dated 8-4-2008. An order granting review is an appealable order under Order 47 Rule 7 CPC and thus appeal was maintainable, and (ii) the order dated 8-4-2008 sought to negate valuable rights that had accrued and vested in the appellants when Defendants 1 to 8 did not prefer an appeal against the order dated 8-4-2008 closing its right to file a written statement to the amended plaint.
8. Even if it be assumed that the order dated 8-4-2008 was appealable but that did not preclude Defendants 1 to 8 to make an application for recalling the order under Section 151 of the Code of Civil Procedure, 1908, as they were gravely prejudiced by closure of their right of filing amended written statement. The trial Judge of the High Court was persuaded to recall the order dated 8-4-2008 in the interest of justice. Once the inherent power was exercised by the trial Judge under Section 151 of the Code of Civil Procedure, 1908, we are afraid in an intra-court appeal, there was no justification for interference in the just order that advanced the cause of justice.
25. Learned advocate Mr.Pandya, however, submitted that the order for production of the documents under Order XI of the Code is part of the composite scheme pertaining to interrogatories, discovery, inspection and production of the documents and, therefore, non- compliance of the order made for production of the documents could be subject to Order XI, Rule 21 in the scheme of Order XI for discovery, inspection and production of the documents and for filing of the affidavit as required by Rule 13 of Order XI of the Code. The Court, however, finds that such contention cannot be accepted in view of the clear language used under Order XI Rule 21 of the Code.
Page 26 of 30HC-NIC Page 26 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER The legislature if so intended would have clearly provided in Order XI Rule 21 that the production of the documents under Order XI Rule 14 of the Code would even take within its sweep the interrogatories, discovery, inspection for the purpose of exercise of powers under Order XI Rule 21 of the Code but what is not clearly provided in Order XI Rule 21 cannot be read into it and, therefore, striking out of defence of the defendant no.1 under Order XI Rule 21 of the Code could be said to have been passed only on the ground of non- production of the documents under Order XI Rule 14 of the Code. When the powers under Order XI Rule 21 could not be exercised for striking out the defence for non-compliance of the order for production of the documents under Order XI Rule 14 and when this Court remitted the matter for fresh consideration of the application at Exhibit 172 after finding that the defence of the defendant no.1 could not have been struck out for non-production of the documents under Order XI Rule 14, there was no conferment of power to learned Judge but it was left to the learned Judge to decide whether to exercise inherent powers under Section 151 of the Code to permit the defendant no.1 to defend the suit by allowing his written statement to be on record. The Court finds that the learned Judge could have exercised inherent powers even after making the order for striking out the defence of the defendant no.1 when the order of striking out the defence was not in accordance with the provisions of the Order XI Rule 21 of the Code. The Court finds that since the order of striking out the defence of the defendant no.1 could not stand scrutiny of law and learned Judge having failed to exercise powers under Section 151 to restore defence to the defendant no.1, this Court deems it fit and proper to exercise the powers under Article 227 of the Constitution to quash the order below application at Exhibit 172 and to restore the right of defence to the defendant no.1 in the suit proceedings on noticing the below mentioned facts.
26. The application Exhibit 105 was made on 12.03.2009 seeking Page 27 of 30 HC-NIC Page 27 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER production of the documents of Will and the probate of defendant no.1 by stating that they are relevant documents. Though in reply to such application, the defendant no.1 has stated that he received the Will from the Court, however, in his affidavit, he stated that he was not returned the Will and it was not with him. The statement made by the defendant no.1 that he had not received Will from the Court could be taken as false. However, the facts which are not possible to be disputed by the plaintiffs are that the father of plaintiff no.1 namely Rakeshbhai Mahendrabhai Desai had made an application before the Hon'ble Supreme Court in Civil Application No.3224 of 2010, the copy whereof is produced at Annexure - E at page No.83 for seeking permission to place on record the alleged original Will dated 22.08.1995 of late Shri Mahendrabhai Desai and other additional documents and subsequent development and in such application, he made following averments in para-8.
8. It is submitted that the original alleged Will, which was received by the Appellant from the probate Court, and he claims to have misplaced the same, has been handed over to the answering respondent by one Shri Champalal J. Seth on 17.09.2016, Shri Champalal J. Seth has also given an affidavit that the original alleged Will was handed over to him by the appellant in 2001 and that this alleged Will is not of late Shri M. P. Desai but as a result of fabricated signature done in the year 2001, 6 years after the death of late Shri M. P. Desai.
27. Shri Champalal Seth who is referred in para-8 of above application then made an application to be joined as party in the above referred Civil Appeal before the Hon'ble Supreme Court claiming to be the stakeholder, and necessary and proper party in the above proceedings. He then filed affidavit in the said proceedings wherein he has stated in para-3 as under:
3. That after taking probate from the court in the year 2001, Shri Jayantibhai Ramdas Patel had handed over this false and bogus will to me and till 17.9.16 this bogus Will was under my Page 28 of 30 HC-NIC Page 28 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER custody.
28. Thus, from the averments made in para-8 of the application by the father of the plaintiff no.1 before the Hon'ble Supreme Court and from the statement made by Shri Champalal Seth in para-3 of his affidavit before the Hon'ble Supreme Court, undisputed position emerges is that right from 2001 onwards, the Will was in the custody of Shri Champalal Seth till 17.09.2016 as stated by Shri Champalal Seth in his affidavit who claims to be the stakeholder by alleging that the Will was false and bogus. When the above were the facts presented before the Hon'ble Supreme Court and still if the defendant no.1 is to be denied his right to defend the suit on the ground of non- production of the document which was not in his custody as per the knowledge of the plaintiffs, when the application Exhibit 105 was filed, the matter could not be left unresolved for the defence of the defendant no.1 simply on the ground that the orders passed below Exhibit 105 and 146 attained finality. The Court, therefore, in the facts of the case finds that interference by this Court under Article 227 of the Constitution of India is called for to quash the impugned order made by the learned Judge and resultantly to allow the application Exhibit 176.
29. However, learned advocate Mr.Pandya has relied on the judgment in the case of Waryam Singh and another Vs. Amarnath (supra), in the case of Sadhana Lodh (supra) and in the case of Ram Prakash Agarwal (supra), so as to submit that the Hon'ble Supreme Court has ruled that if no jurisdictional error is committed by the Court below, the powers under Article 227 could not be exercised, especially, when the Court below has rightly applied the law and dismissed the application at Exhibit 172. The extent of power under Article 227 of the Constitution of India is not limited only to correct the jurisdictional error, but when the Court below fails to exercise the jurisdiction to do substantial justice, the powers under Article 227 Page 29 of 30 HC-NIC Page 29 of 30 Created On Sun Oct 01 11:14:22 IST 2017 C/SCA/15396/2017 ORDER could certainly be exercised. The Court finds that the trial Court could have remedied the wrong done to the defendant no.1 by exercising its power under Section 151 of the Code. Having not done so, it failed to exercise the jurisdiction vested with it. The other judgments cited by the learned advocates since not relevant are not discussed. In view of the above, the impugned order is, therefore, required to be quashed and set aside and the application at Exhibit 172 is required to be allowed and the defence available to the defendant no.1 in the suit is required to be restored.
30. In the result, the impugned order is quashed and set aside and the application at Exhibit 172 is allowed and the defence available to the defendant no.1 in the suit is restored. The written statement filed by defendant no.1 shall continue to be on record of the suit and the defendant no.1 shall be permitted to take all his defences in the proceedings of the suit. The petition stands finally disposed of, at notice stage
31. Learned advocate Mr.Pandya and learned senior advocate Mr.Dave request that the Court may suspend / stay the present order for a period of six weeks. Learned advocate Mr.Sanjanwala, however, strongly opposed such request. The Court in the facts of the case finds that the request made by and on behalf of respondent no.1 and respondent no.8 cannot be accepted. Hence, rejected.
(C.L.SONI, J.) vijay Page 30 of 30 HC-NIC Page 30 of 30 Created On Sun Oct 01 11:14:22 IST 2017