Andhra HC (Pre-Telangana)
Kuchimanchi Subba Rao And Ors. vs Kanchana Prabhakara Rao (Died) Per ... on 1 March, 2006
Equivalent citations: 2006(3)ALD744, 2006(3)ALT12, AIR 2006 (NOC) 930 (A.P.) = 2006 (3) ANDH LD 12(AP)
ORDER V.V.S. Rao, J.
1. The petitioners are defendants in O.S. No. 83 of 1991 on the file of the Court of Senior Civil Judge, Amalapuram. The suit was filed by the first respondent herein for specific performance of agreement of sale of plaint schedule property. The first petitioner/ first defendant is contesting the suit and denying the execution of agreement of sale. The plaintiff filed I.A. No. 1194 of 1999 under Order XI Rule 1 of Code of Civil Procedure, 1908 (CPC) seeking leave of the trial Court to serve interrogatories on the first defendant. The said application was allowed on 29-12-1999. After receiving the interrogatories third defendant filed an affidavit presumably under Rule 8 of Order XI of CPC in answer to interrogatories. This was filed on behalf of the first defendant who was statedly elderly and aged person having defect in hearing. Be that as it is, alleging that the interrogatories have not been answered by the first defendant, first respondent moved an application purportedly under Order XI Rule 21 of CPC praying the trial Court to strike off the defence of first defendant in O.S. No. 83 of 1991. This application was opposed by the defendants inter alia contending that the affidavit filed by third defendant on behalf of the first defendant is due and proper compliance and proper answering of the interrogatories. This objection was overruled and by impugned order dt. 14-8-2000 the Court of Senior Civil Judge, Amalapuram, struck off the defence of the first defendant. Aggrieved by the same, present Civil Revision Petition is filed. While the Civil Revision Petition was pending before this Court, first petitioner/first defendant passed away and a Memo is filed by petitioners 2 and 3 to the effect that they are legal representatives representing the estate of the deceased first petitioner.
2. The learned Counsel for the petitioners raised various contentions. However, having regard to the core question as to whether it is competent for the trial Court to strike off the defence under Order XI Rule 21 of CPC without there being an order to the first defendant to answer the interrogatories served on him under Order XI Rule 11, the defence can be struck off. It is not necessary to advert to various other questions raised in the matter. Indeed, the question is also no more res Integra. Before referring to two relevant binding precedents, it is necessary to notice the scheme of Order XI of CPC.
3. The procedure for discovery and inspection is ordered in Order XI, Rules 1 to 11 and Rules 21 to 23 deal with interrogatories, whereas Rules 12 to 20 deal with procedure for discovery of documents. Insofar as interrogatories are concerned, the law provides for three stages. In the first stage, the plaintiff or the defendant has to obtain leave of the Court for delivering interrogatories in writing on a defendant or defendants or the plaintiff or plaintiffs, as the case may be. Such interrogatories had to be separately served on each person requiring to answer. After obtaining permission from the trial Court, the interrogatories are to be served in Form No. 2 in Appendix-C on the person who is required to answer. The person receiving interrogatories is required to answer by way of an affidavit (see Rule 8 of Order XI). In second stage, if a person on whom interrogatories are served does not comply with by filing affidavit in answer to interrogatories, the plaintiff or the defendant who obtained leave of the Court to serve interrogatories has to again file another application under Order XI Rule 11 of CPC. Such application can be filed when the person omits to answer interrogatories or answers interrogatories insufficiently. At that stage, the Court can compel the person to answer interrogatories by passing an order either requiring to answer the interrogatories by affidavit or by vis-a-vis (sic. viva voce). In case such an order is not complied with, the same would result in penal consequences which can either be dismissal of the suit or striking off the defence. That is the final stage, which is provided under Order XI Rule 21 of CPC, which reads as under:
Order XI Rule 21. Non-compliance with the order for discovery:- (1) 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 on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard.
(2) Where an order is made under Sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action.
4. The above rule can be enforced only when a party fails to comply with an order to answer interrogatories. Granting of leave under Rule 1 does not amount to passing order to answer interrogatories. At the first stage the Court merely grants leave to party to serve interrogatories to other party and no order as such is passed compelling to answer the interrogatories. Therefore, as a condition precedent for exercising power under Order XI Rule 11 of CPC there ought to have been order under Rule 11. Further, while passing an order either dismissing suit or striking off defence the trial Court is bound to issue notice to the parties and afford a reasonable opportunity of being heard.
5. In Koduri Krishna Rao v. State of A.P. dealing with Order XI Rule 21 of CPC a Division Bench of this Court held that the trial Court can invoke penal provisions of Rule 21 only if there had been an order to answer interrogatories or discovery or for inspection of documents under Rules 11, 12 and 18 of Order XI. In Babbar Sewing Machine Co. v. Tirlok Nath , the Supreme Court held that no order striking out defence should 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 relevant observations of the Supreme Court (see placitum) are as under:
An order striking out the defence under Order 11, Rule 21 should (sic. should 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, to produce the documents. Even assuming that in certain circumstances the provisions of Order 11, 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 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 Order 11 Rule 21, unless the court is satisfied that the plaintiff was wilfully withholding information by refusing to answer interrogatories or by withholding the documents which he 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. 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 11 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.
6. In this case, the sequence of events would show that first respondent filed I .A. No. 1194 of 1999 on 8-11-1999. The trial Court passed order on 29-12-1999 granting leave to the first respondent to serve interrogatories on first defendant and subsequently closed the said application being I.A. No. 1194 of 1999 by docket order dt. 15-2-2000. Subsequently, the first respondent did not move any application under Order XI Rule 11, but straightaway filed an application being I .A. No. 269 of 2000 on 6-4-2000. Without noticing the legal position, the trial Court passed orders on 14-8-2000 striking off the defence of the first defendant. Therefore, the impugned order suffers from grave error apparent on the face of record and the same cannot be sustained.
7. The Civil Revision Petition is accordingly allowed. I .A. No. 269 of 2000 on the file of the Court of the Senior Civil Judge, Amalapuram, stands dismissed.