# • ) ' , _.,1' • BABBAR SEWING MACHINE CO v. TRILOK NATH MAHAJAN

- **Citation:** [1979] 1 S.C.R. 57
- **Court:** Supreme Court of India
- **Decided:** 1978-08-07
- **Case number:** Civil Appeal No. 2126 of 1968
- **Bench:** Jaswant Singh, D. A. Desai, A. p; SEN
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1-babbar-sewing-machine-co-v-trilok-nath-mahajan-7597
- **Pages:** 11

## Headnote

Defence in a suit, striking out of for non-compliance with order for discovery-Civil Procedure Code 1908, (Act V) Order XI rule 21
read
with
Section 151, Scope of-Right to cross examine, whether lost.
The plaintiff-respondent claiming to be an assignee of a debt under a deed
dated 27th April, 1965, filed a suit against the defendant-appellant for recovery
of a certain sum alleged to be due to M/s Chitrai Multipurpose Cooperative
Society, the assignor. On an interlocutory application moved by the respondent
·under Order XI rules 14 and 18 C.P.C. for the production of certain documents,
despite the objection by the appellant the Trial Court directed their production.
The appellant produced all the documents in his possession on 7 -2-67, but he
was pern1itted to take back the account books as they were required to be
produced before the Income Tax Officer on that day with the direction that he
should produce them on 23-Z.67. On 23-2-67, when the appellant appeared
in the Court with his books the trial judge directed him to produce them on
16-3-67 and in the meanwhile allow the,ir inspection to the res~dent with three
days' notice. The appellant accordingly sent a letter dt. 25-2-67 asking the
respondent to take inspection of the account books on 27-2·67 at 6 p.m. in the
'office of his Counsel. On his failure to do so, the appellant sent onee agam
a registered letter dt. 1-3-1967 asking the respondent to inspect the records
on 9-3-67 in his lawyer's office between 7 p.m. and 9 p.m. The respondent. never
sent any reply to the notice. Nor did he avail of the, opportunity of inspecting
the account books at the office of the appellant's lawyer on 9-3-67. On 16-3-67,
the Trial Court passed an order saying that the appellant should produce the
books within four days in the Court to enable the respondent's counsel to
inspect them before 29-3-67 i.e. the date fixed for evidence. After the examination of three witnesses of the respondent, the trial Court asked the respondent's
Counsel to apply under Order XI rule 21 to strike out the defence of the appellant. On 31-3-67 the respondent filed an application accordingly which was vehemently opposed by the appellant.
The appellant also moved both the District
Court and the High Court for transfer of the suit to some other Court of c<Ylllpeteot jurisdiction. The High Court declined to interfere. Thereupon the trial
Court passed an order on 23-5-67 striking out the defence of the appellant and
oo 21-6-67 refused permission to the appellant's counsel to cross-examine the
re8poodent's witnesses. The revision filed by the appellant in the High Court
WllS rejected on 14-8-1968.
Allowing the appeal by special leave, the Court
HELD : I. The penalty imposed by Order XI, rule 21 is of a highly penal
1tature 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
5-520SCl/78
A
B
c
D
E
F
G
H
.
58
SUPREME COURT REPORTS
[1979] 1 S.C.R.
A
dO\\'Il therein.
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
wilful attempt to <lisregard the order of the Court is established.
[62E, 63EJ
2. The test laid down is whether the default is wilful. In the case of the
plaintiff, it entails in the dismissal of the· suit and, therefore, an order of dismissal
ought not to be made under Order Xl, rule 21, unless the Court is satisfied that
B
the plaintiff was wilfully withholding the documents which the defendant soughl
to discover. In such an event, the plaintiff must take the conseQ.uence 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 defendant, he is visited with the penalty
that his defence is liable to be struck out and to be placed id the same' position
as if he had oot defended the suit. [63 B-D)
c
3. The po,ver for dismissal of a suit or striking out of the d

## Text

•
)
' ,.._.,1'
•
BABBAR SEWING MACHINE CO.
v.
TRILOK NATH MAHAJAN
August 7, 1978
[JASWANT SINGH, D. A. DESAI AND A. p; SEN, JJ.J
Defence in a suit, striking out of for non-compliance with order for discovery-Civil Procedure Code 1908, (Act V) Order XI rule 21
read
with
Section 151, Scope of-Right to cross examine, whether lost.
The plaintiff-respondent claiming to be an assignee of a debt under a deed
dated 27th April, 1965, filed a suit against the defendant-appellant for recovery
of a certain sum alleged to be due to M/s Chitrai Multipurpose Cooperative
Society, the assignor. On an interlocutory application moved by the respondent
·under Order XI rules 14 and 18 C.P.C. for the production of certain documents,
despite the objection by the appellant the Trial Court directed their production.
The appellant produced all the documents in his possession on 7 -2-67, but he
was pern1itted to take back the account books as they were required to be
produced before the Income Tax Officer on that day with the direction that he
should produce them on 23-Z.67. On 23-2-67, when the appellant appeared
in the Court with his books the trial judge directed him to produce them on
16-3-67 and in the meanwhile allow the,ir inspection to the res~dent with three
days' notice. The appellant accordingly sent a letter dt. 25-2-67 asking the
respondent to take inspection of the account books on 27-2·67 at 6 p.m. in the
'office of his Counsel. On his failure to do so, the appellant sent onee agam
a registered letter dt. 1-3-1967 asking the respondent to inspect the records
on 9-3-67 in his lawyer's office between 7 p.m. and 9 p.m. The respondent. never
sent any reply to the notice. Nor did he avail of the, opportunity of inspecting
the account books at the office of the appellant's lawyer on 9-3-67. On 16-3-67,
the Trial Court passed an order saying that the appellant should produce the
books within four days in the Court to enable the respondent's counsel to
inspect them before 29-3-67 i.e. the date fixed for evidence. After the examination of three witnesses of the respondent, the trial Court asked the respondent's
Counsel to apply under Order XI rule 21 to strike out the defence of the appellant. On 31-3-67 the respondent filed an application accordingly which was vehemently opposed by the appellant.
The appellant also moved both the District
Court and the High Court for transfer of the suit to some other Court of c<Ylllpeteot jurisdiction. The High Court declined to interfere. Thereupon the trial
Court passed an order on 23-5-67 striking out the defence of the appellant and
oo 21-6-67 refused permission to the appellant's counsel to cross-examine the
re8poodent's witnesses. The revision filed by the appellant in the High Court
WllS rejected on 14-8-1968.
Allowing the appeal by special leave, the Court
HELD : I. The penalty imposed by Order XI, rule 21 is of a highly penal
1tature 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
5-520SCl/78
A
B
c
D
E
F
G
H
.
58
SUPREME COURT REPORTS
[1979] 1 S.C.R.
A
dO\\'Il therein.
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
wilful attempt to <lisregard the order of the Court is established.
[62E, 63EJ
2. The test laid down is whether the default is wilful. In the case of the
plaintiff, it entails in the dismissal of the· suit and, therefore, an order of dismissal
ought not to be made under Order Xl, rule 21, unless the Court is satisfied that
B
the plaintiff was wilfully withholding the documents which the defendant soughl
to discover. In such an event, the plaintiff must take the conseQ.uence 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 defendant, he is visited with the penalty
that his defence is liable to be struck out and to be placed id the same' position
as if he had oot defended the suit. [63 B-D)
c
3. The po,ver for dismissal of a suit or striking out of the defence under
D
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 inexciisable -delay
which may cause substantial or serious prejudice to the opposite party. Tbe
rule must be worked with caution and may be made use of as a last resort. [63D,
FJ
, ·lfi
Denvillier v. Myers, (1883) WN 58, Bans/ii Singh v. Pa/it Singh, 7 C.L.J.
295, Haigh v. Haigh, L.R. (1886) Cb.D. 478, Twycroft v. Grant, 1875 W.N.
201, Reg v. Senior, [1889) (1) QBD 283; quoted with approval.
Khajah A.vsenoolla Joo v. Khajah Abdool Aziz.
l.L.R. 9 .Cal. 923
and
Allal1abad Bank Ltcl. v. Ganpat Rai, I.LR. 1 Lah. 209; approved.
4. It is a travesty of justice that the trial Court should have, in the fae!.s
E
and circumstances of the Ca6e, passed an order striking out the defence of the
defendant under Order XI, rule 21 and that the High Court should have declined
to set it aside. (620-E]
F
G
H
5. Applying the principle governing the Court's exercise of its
discretion.
under Order XI, rule 21, in the instant case, there was no wilful default on the
part of the defendant of the Court's order under Order XI, rule 18(2) for the
pnxluction of documents for inspection, and consequently, the order passed by
the trial court on 23 May, 1967, striking out the llefence of the defendant
must be vacated, and the trial must proceed a.fresh from the stage \Vhere the
defendant was not permitted to participate. (66C-E]
6. A perusal Of Order XI, rule 21 shows that where a defence is to be
struck oft in the circumstances mentioned therein, the -order would be that the
defendant 'be placed in the same position as if he has -not defended'. This
indicates that once the defence is struck .off'under Order XI, rule 21, the _position
\\'ould be as ii the defendant had not -defended Mld accordingly the suit wOUld
proceed cx-parte. If the Court proceeds e:x-parte against the defendant uilcier
Order IX, rule 6(a), the defendant is still entitled to cross-examine the witnesses
examined by the plaintiff. If the plaintiff' makes out a pri1na facle case the court
maiy pass a decree for the plaintiff. If the plaintiff fails to make:, out a primir
facie case, the Court may dismiss the plafntiff's suit.
Every Judge in de:lling
wlth an cx-parte case has to take care that the plaintiff's case is, at least, prima
facie proved.
[66E-G]
Sangram Singh v. Election Tribunal, (1955] (2) S.C.R. 1 referred to.
•
\
•
•
•
)
:. .. ·l--i
·- .
BABBAR MACHINE co. v. MAHAJAN (Sen,!.)
59
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2126 of 1968.
A
Appeal by Special Leave from the Judgment and Order dated
14-8-1968 of the Punjab and Haryana High Court in Civil Revision
'No. 430 of 1967.
In person (C.K. Babbar) for the Appellant.
B
Harbans Singh for the Respondent.
The Judgment of the Court was delivered by
'¥
SEN, J.-This appeal by special leave in directed against the order
•
I
.of the Punjab and Haryana High Court dated 14 August, 1968 upholdc
ing an order of the trial court dated 23 May, 1967 striking out the
defence of the defendant under Order XI, rule 21 read with section
151 of the Civil Procedure Code, 1908 and directing that the defen-
·dant cannot be permitted to cross-examine the plaintiff's witnesses.
The suit out of which this appeal arises was brought by the resD
pondent Trilok Nath Mahajan, as plaintiff, against the appellant-defen-
·dant M/s.
Babbar Sewing Machine Co., on 9th March, 1966 for
recovery of a certain sum alleged to be due to M/s. Chitra Multipurpose Co-operative Society ( Jogyatia) Ltd., Ludhiana which remained
unpaid towards the price of sewing machines sold on credit from time
to time, claiming to be an assignee under a deed dated 27 April, 1965.
The transaction sued upon was of the year 1959, a.nd the suit was obviously barred by limitation.
The plaintiff, however, pleaded that the
defendant had acknowledged his liability by his letter dated 8 March,
1963 forwarding cheque No. 01194 dated 7 March, 1963 for Rs. 50/-
,drawn on the Punjab National Bank Ltd., Yamunanagar.
The defen-
·dant disputed the plaintiff's claim and pleaded, inter-alia, that he does
not owe anything to the said society and as such the suit was
not
maintainable; that there was no privity of contract between the parties
nor does any relationship of a creditor and debtor exists between them.
He further pleaded that the suit was barred by limitation.
He a1so
pleaded that the trial court had no jurisdiction to try the suit.
On 11 November, 1966, the plaintiff moved an application urtder
Order XI, rules 14 and 18 for production and inspection of the folfow-
:ing documents :
(a) Cash book, day book and ledger for the year 1-4-1959
E
F
G
to 31-3-1960 and 1-4-1960 to 31-3-1961.
fl
{b) Cash book and ledger for the years 1-4-1961
to
31-3-1966.
B
c
_,. r /
- '\(' '\
60 - · .... <
'.-·-.----:-/ '_,.<- ·,
·, _
SUPREME COURT REPORTS
[1979] 1 s.c.R:.
\\ (c) All the original bills issued in favour of the defendant
by Mis. Cl:iitra Multipurpose
·Cooperative Society
Jogyana· Ltd., including Bill No. 22 dated 13-5-1960,
Bill No. 43 dated 2-8-1960, Bill No.
49
dated
14-9-1960, Bill No. 53 dated 26-9-1960.
(d) Original letters wriiten by the plaintiff to the defendant
and letters addressed by M/s __ Chitra
Multipurpose
Cooperative Society Jogyana Ltd., to defendant.
(e) Counterfoils of cheque book in use on 7-3-1963.
(f) The oiiginal cheque No. 01194 dated 7-3-1963.
(g) Bank pass book from 1-4-1962 to 31-3-1964 with
counterfoils of the cheque books with which the respondent (T.N. :Mahajan) firm had an account.
Despite objection by the defendant, the trial court by its order
dated 11 January, 1967, directed their production on 30 January, 1967
D
holding that they were relevant fot the determination of the contro-
. versy between the parties.
·
E
F
G
H
•
On 30 January, 1967, when the suit came up for hearing, the
court adjourned the suit to 7 February, 1967, for prpduction of
the
documents.
In compliance with the court's order, on 7 February,
1967, the defendant produced all the documents in his possession viz,
account books for the years 1959-60 to 1965-65 but he was permitted
by the trial court t;:J take back the account hooks as they were required
to be produced before the Income Tax Officer, Yamunanagar on that
day, with the direction that he should produce the same on 23 February, 1967.
On 23 February, 1967 the defendant appeared in the
court with his books but the trial judge directed him to produce them
on 16 March, 1967 and in the meanwhile ·allow their inspection to
the plaintiff with three days' notice.
The defendant accordingly sent
a letter dated 25 February, 1967 asking the plaintiff to take insp_ection
of the account books on 27 February, 1967.
On 28 February, 1967,
th~ plaintiff made an application that the defendant had not produced
the documents for inspection but this_ was apparently WJ;dng, as
is
evident from the registered notice dated 1 March, 1967, sent by
the
defendant to the following effect :
"After the last date of hearing on 23.2.1967 I wrote you
a letter from Yamuria Nagar on 25.2.1967 informing you that
I shall be present in the office of my counsel Sh. H. L. Soni
· on 27th February, 1967 at 6 p.m. for affording you the inspection of the documents.
I reached at my counsers office
at the scheduled informed time but you did not turn up_ I -
•
J
•
•
,
'
BABBAR MACHINE co. v. MAHAJAN (Sen, !.)
61
kept waiting for you uptil
8.30 p.m. on that day.
Later
A
I contacted }!Our lawyer Shri S. R. Wadhera but he expressed
his inability to contact you.
Now I would be reaching Ludhiana again on the 9th
March, 1967 and shall be available in my lawyer's Shri H. L.
Soni's office from 7 p.m. to 9 p.m. and you will b_e free to
B
inspect the documents at the afore-mentioned venue and during the above-noted time.
Three days' clear notice is being given to you.
Please
be noted to this effect."
Admittedly, the plaintiff never sent any reply to the notice.
Nor c
did he avail of the opportunity of inspecting the account books at the
office of the defendant's lawyer on 9 March, 1967.
On 16 March, 1967 the trial court passed an order saying that
the defendant should produce the books within four days in the court
to enable the plaintiff's counsel to inspect them before 29 March,
1967 i.e. the date fixed for evidence, failing which the defence of the
defendant would be struck off.
On 29 March, 1967 three witnesses
of the plaintiff were examined. After the examination of these witnesses. the trial court asked the plaintiff's counsel that he si\ould apply
under Order XI, rule 21 to strike out the defence of the defendant.
D
·On 31 March, 1967, the plaintiff accordingly made an application
E
under Order XI, rule 21 read with section 151 of the Code asserting
that the defendant had failed to comply with the order of the court as
regards production of documents inasmuch as he had not produced
them for inspection.
The defendant opposed the application stating that there was no
failure on his part to produce the documents ordered.
It was stated
that all the documents as were .capable of identification had been
produced in the court.
It was alleged that the plaintiff had already
inspected the documents that were specifically set out in the application.
It was also alleged that the plaintiff had not once but thrice
or even four times inspected the documents to his entire satisfaction
except tlmt he was prevented from making fishing, roving and searching enquiries into the entries which had no relevance to the suit transaction. It was, therefore; urged that the striking out o.f the defence
would not be warranted by law.
Feeling apprehensive that he would not get a fair trial at the hands
F
G
of the trial Judge, the defendant applied to the District Judge, LudhiH
ana for the transfer of the suit on 10 April, 1967.
While the Distrid
Judge was sei~ed of the transfer application, the defendant moved the
62
SUPREME COURT REPORTS
(J.979] I S.C.R.
A
High Court for transfer of the suit to some other court 1of competent
jurisdiction.
The High Court by its order dated 15 May, 1967 declined to interfere.
B
c
D
E
F
G
H
On 23 May, 1967, the trial court paS>ed an order under Order XI,
rule 21 striking out tli'e defence of the defendant stating that he was
placed in the same position as if he had not defended the suit and
adjourned the suit t1'.l 21 June, 1967, for examination of the remaining
witnesses of the plaintiff.
On 21 June, 1967, the court did not allow
the defendant's counsel to cross-examine plaintiff's witnesses h9lding
that in view of the fact that his defence has been struck off, he had no
right to participate and, therefore, could not cross-examine the witnesses produced in the court.
The defendant filed a revisi,on before
the High Court which was rejected on 14 Augus:, 1968.
In this appeal, two questions are involved : firstly, whether the
trial court was justified in strikfr!g out the defence of the defendant
under Order XI, rule 21 of the C.P.C., 1908, and secondly, whether
the High Court was right in observing that in view of the clear language of Order XI, rule 21 the defendant cannot be permitted to crossexamine the plaintiff's witnesses.
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 defendl!nt under Order XI, rule 21 and that the High
Court should have decliried to set it aside.
The penalty imposed by
Order XI, rule 21 is of a highly penal nature, and oughConly 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,
Order XI, rule 21 of the Code of'Ci:ivil Procedure reads :
"21.
Where any party fails to comply with any order to
answer interrogatories, or for discovery of 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 effed, and an order may be made accordingly,''
Section 136 of the Code of Civil Prpcedure, 1882, corresponding
to Order XI, rule 21 of the C.P.C. 1908, was based upon Order XXX~,
rule 20, now replaced by Order XXIV, rule 16 framed under the Judi-
• '
,J
'
I
BAllBAR MACHINE co. v. MAHAJAN (Sen, J.)
63
cature Act.
The practice of the English Courts is, and it has always
A
been, to make the order a conditional one, and to grant a little further
time for compliance. In practice this provision is virtually obsolete(!).
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 1JI 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 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. (2 )
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 whete the defaulting party fails to attend tile hearing or is guilty of _prolonged o'r inordinate and inexcusable delay wnich 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 wilful 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 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. I, p. 581, Khajah Assenoolla Joo v.
Khajah Abdool Aziz(3),
Banshi Singh v. Palit Singh('),
Allahabad Bank Ltd.
v.
Ganpat
Rai('), Haigh v. Haigh( 6 ) and Twycroft v. Grant(').
(I) Halsbury's Laws of England, 4th Ed., Vol. 13. p, 32.
(2) (1883) WN 58.
(3) I.L.R. 9 Cal. 923.
(4) 7 C.L.J. 295.
(5) l.L.R. 11 Lah. 209.
(6) L.R. (1886) Ch. D. 478.
(7) 1875 W.N. 201.
B
c
D
E
F
G
H
64
SUPREME COURT REPORTS
[1979] 1 S.C.R.
A
In H a1gh v Haigh (supra) Pearson J. observed :
B
c
"I have no hesitation in saying that I have the strongebl
disinclination, as I believe every other Judge has, that any
case should be decided otherwise than upon its merits.
But
this order was introduced to prevent plaintiffs and defendants
from delaying causes by their negligence or wilfulness.
So
great was my anxiety to relieve this lady from the consequence of her wrong headedness if, by any possibility, I
could on proper terms, that I he'sitated to refuse to make the
order asked for, and I have looked into all the cases I could
find on the subject to see ·that the practice of the Court has
been on this order.
And I can find no case in the books
where it has been applied, where a man knowingly and wilfully has allowed judgment to go by default."
In Twycroft v. Grant (supra) Lush J. interpreting corresponding
Order XXXI, rule 20 of the Judicature Act, held that he would only
D
exercise the powers conferred by the rule in the last resort.
In
England, the party against whom such an order is made wonld, it
seems, be entitled to come in and ask that the order might be set aside
on showing sufficient grounds for such an application.
In Khaiah Assenoolla Joo v. Klwiah Abdool Aziz (si1pra), Pigot
J. therefore made an order striking out the defence of the defendant
E
under section 136 of the C.P.C. 1882 in conseqnence of non-compliance with the earlier order for production of certain documents, and
at the same time mentioned that the party against whom the order
was made might come in and seek to set it aside on showing good
grounds for the application.
F
G
H
It is settled law that the provisions of Order XI, rule 21, should
be applied only in extreme cases where obstinacy o.r 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 Russel C.J. in Reg. v.
Senior(!) and affirmed by Cave L. C. in Tamboli v.
G.I.P.
Railway(2), "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."
In this case, there was no default, much Jess any wilful default, on
the part of the defendant, to comply with any order of tl1e court under
Order XI, rule 18(2). In obedience of the order of the court dated
(1) [1899] (1) Q.B.D. 283.
(2) I.L.R. 52 Born. 169 (P.C.).
'
•
•
\
' '
I
BABBAR MACHINE co. v. MAHAJAN (Sen, !.)
65
11 January, 1967, the defendant came all the way from Yi:munanagar
to Ludhiana on 27 February, 1967 and was waiting at his lawyer's
office from 6.00 p.m. to 8.30 p.m. when the plaintiff or his counsel
did not turn up.
Thereafter the defendant sent a registered notice
dated 1 March, 196 7 offering inspection of the documents
at his
lawyer's office on 9 March, 1967, but the plaintiff did not avail of the
opportunity of inspecting the documents.
The defendant had filed
an affidavit that the rest of the documents were not in bis possession
and could not be produced.
The account books for the years 19062, 1962-63 and 1963-64 had to be produced by the defendant before
the Income Tax Officer, Yamunanagar on 31 January, 1967, then. 7
February, 1967 and 16 March, 1967. An affidavit to this effect was
also filed. It is somewhat strange that the trial court should have
fixed the dates which were the dates fixed by the Income Tax Officer.
In view of the notice dated 1 March, 1967, there can be no doubt
that the defendant had tried to comply with the order of the court by
offering inspection on 27 February, 1967.
There is no dispute that
27 February, 1967 was the date mutually agreed upon between the
counsel for the parties. The only controversy is about the scheduled
time.
Th'e time fixed according to the plaintiff's application dated
28 February, 1967 was 2.30 p.m. at his lawyer's office while
that
according to the defendant's notice dated 1 March, 1967 it was 6.30
p.m. in his lawyer's office. · The plaintiff has not examined his counsel, S.R. Wadhera, nor is there any affidavit by Wadhera.
From the
material on record it is amply clear that the appointed scheduled time
and place for inspection of the defendant's account books was
6.30
p.m. at his lawyer's office.
The plaintiff was afforded another opportunity of inspection of the· account books on 9 March, 1967 at the
office of the defendant's lawyer from 7.0 p.m. to 9.0 p.m.
In the
dtcumstances, the trial court was not justified in holding that there
was any non-compliance. of its order under Order XI, rule 18(2).
It is common ground that the account books for the years 195960 and 1960-61 were lying in court. The suit transactions are of the
year 1959. Nothing prevented the plaintiff from inspecting
these
books.
As regards the account books for the years
1961-62 to
1964-65, they were required to be produced before the Income Tax
Authorities at Yamunanagar on 20 March, 1967 and on subsequent
dates. It is not clear what relevance these books could have to the
controversy between the parties uuless the plaintiff wanted to find some
entries to show that there was carry forward of the entries relating to
the suit transaction in the acCOlDlt books for the years 1959-60 to the
subsequent years so as to bring his claim within time.
Apparently,
there were no such entries in the acc91.mt books for the years 1959-60
·'
A
B
c
D
E
F
G
H
66
SUPREME COURT REPORTS
[1979] 1 S.C.R.
A
and 1960-61.
As regards the bank pass book of the
defendant's
account with the Punjab National Bank Ltd., for the period 1 April,
1962 to 31 March, 1963 and 1 April, 1963 to 31 March, 1964 and
the counterfoil of cheque No. 01194 dated 7 March, 1963, alleged t<>
be drawn by the defendant in plaintiff's favour, the defendant has
sworn an affidavit that he had no account with Punjab National Bank
B
Ltd., Yamunanagar during that perioo nor he had issued any such
cneque as alleged.
In view of this, the order of the trial court dated
23 May, 1967, striking out the defence of the defendant was wholly
unjustified.
c
D
E
F
G
H
The principle governing the court's exercise of its discretion under
Order XI, rule 21, as already stated, 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, when the party is guilty of such contumacious
conduct or there is a wilful attempt to disregard the order of the court
that the trial of the suit is arrested. Applying this test, it is quite clear
that there was no wilful default on the part of the defendant of the
court's order under Order XI, rule 18(2) for the production of uocuments for inspection, and consequently, the order passed by the trial
court on 23 May, 1967, striking out the defence of the defenuant must
be vacated, and the trial must proceed afresh from the stage where the
defendant was not permitted to participate.
It was further contended that the High Court was
in error in
observing that 'in view of the clear language of Order XI, rule 21' the
defendant has no right to cross-examine the plaintiff's witnesses.
A
persual of Order XI, rule 21 shows that where a defence is to be
struck off in the circumstances mentioned therein, the order would be
that the defendant 'be placed in the same position as if he
has
not
defended'.
This indicates that once the defence is struck off under
Order XI, rule 21, the pooition would be as if the defendant had not
defended
and
accordingly
the
suit would proceed ex-pane.
In
~angram Singh v~ Election Tribunal(') it was held that if the court
proceeds ex-parte against the defendant under Order IX, rule 6(a),
the defendant is still entitled to cross-examine the witnesses examined
by the plaintiff. If the plaintiff makes out a prima facie case the
court may pass a decree for the plaintiff. If the plainti!I fails to make
out a prima facie case, the court may dismiss the plaintiff's suit.
Every Judge in dealing with an ex-parte case has to take care that the
plaintiff's case is, at least, prima, facie proved. But, as we set aside
the order under Order XI, rule 21, this contention does not survive for
onr consideration,
We,
therefore,
refrain from
expressing
any·
opinion on the question.
(I) [1955] (2) S.C.R. I.
•
•
/
..
BABBAR MACHINE co. v. MAHAJAN (Sen, /.)
6 7
For the reasons given, the order passed by the trial court dated
A;
23 May, 1967 striking out the defence of the defendant under Order
XI, rule 21 read with section 151 of the C.P.C., and its subsequent
order dated 21 July, 1967 are both set aside and it is directed to proceed with the trial according to, law.
There shall be no order as to
costs .
S.R.
Appeal ailowed.