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"14. 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 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 XI, Rule 21, unless the Court is satisfied that the plaintiff was wilfully withholding information 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 : Denvillier v. Myedrs, (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.

8. The aforesaid position of law was laid down by the Apex Court in respect of Order 11, Rule 21 of the Code of Civil Procedure. Order 11, Rule 21 reads thus:

"21. Non-compliance with 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.
Amendments: Objects and Reasons. -- Clause 64-Sub-clause (iv). --Under Rule 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 the suit dismissed for want of prosecution; and if a defendant, to have his defence, if any, struck off, and be placed in the same position as if he had not defended. The rule further provides that a party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect. The rule is being amended to provide for the passing of the order after giving notice to the plaintiff or defendant, as the case may be, and after giving him a reasonable opportunity of being heard. [Statement of Objects and Reasons (Bill)-Gazette of India, Ext. dt. 8-44974, Pt. II, S.2, p. 316] Sub-clause (v).-- New Sub-rule (2) is being inserted to provide that a fresh suit would be barred when a suit is dismissed under this rule."

The consequence of dismissal of suit or striking out the defence in Order 11, Rule 21 is visited as the case may where the party fails to comply with the order to answer interrogatories or for discovery or inspection of documents. Under Order 39, Rule 11 (1) of the Code of Civil Procedure the consequence of dismissal of suit or striking out the defence follows where there is default in compliance of order of the Court or breach of an undertaking by the plaintiff or the defendant, as the case may be. The provision of Order 11, Rule 21 having been held to be directory in M/s Babbar Sewing Machine Co. by the three Judge Bench of the Supreme Court, we have no hesitation in holding that for the selfsame reasons Sub-rule (1) of Rule 11 of Order 39 of Code of Civil Procedure as introduced in Maharashtra by Bombay Amendment has to be held directory and the discretion exercisable by the Court in passing the order under Sub-rule (1) of Rule 11 of Order 39 has to be in consonance and in conformity with the legal position laid down by the Supreme Court in M/s Babbar Sewing Machine Co. In other words, the power of dismissal of suit or striking out the defence, as the case may be, under Order 39, Rule 11(1) of Code of Civil Procedure should be exercised for adequate reasons; where the defaulting party fails ultimately in complying with the order of the Court or the undertaking; where the default is wilful and the conduct of the defaulting party contumacious and that results in causing substantial or serious prejudice to the opposite party.