1. This suit was dismissed by me on June 30, 1931, under the provisions or Order XI, Rule 21, of the Civil Procedure Code, on account of the plaintiffs' default in giving inspection of the documents disclosed in their list of documents to the defendant in accordance with the order made to that effect by theCourt. The plaintiffs now apply to set aside the order of dismissal. A preliminary objection is raised by Mr. Setalvad on behalf of the defendant, and he says that the order of dismissal cannot be set aside by a motion, as there is no provision in the Code or in the Rules of the High Court, 1930, to that effect and that the only remedy open to the plaintiffs is either by an application for review of judgment or by an appeal. Now, it is undoubtedly true that there is no specific provision made either in the Civil Procedure Code or in the Rules under which an order of dismissal made under Order XI, Rule 21, can be set aside. It is equally true that an appeal lies against such an order under Order XLIII, Rule 1 (f), and that in a proper case the party affected by such an order may apply for a review under Order XLVII. On the facts of this case, however, an application for review of judgment cannot be maintained. The plaintiffs' case is that they were unable to comply with the order for inspection of documents on account of certain circumstances which they have set out in their affidavit and it is not their case that since the order of dismissal they have discovered new and important matter or evidence which after the exercise of due diligence was not within their knowledge or could not be produced by them when the order was made. The only remedy apparently left to them is by way of an appeal. Now that is a costly remedy and the question is whether that is the only remedy open to them or whether as contended by Mr. Coltman they cannot get the relief they seek by an application under the inherent jurisdiction of the Court under Section 151 of the Civil Procedure Code. The point raised is not, as far as I know, covered by any direct authority, nor have counsel been able to refer me to any authority on the point.
2. The plaintiffs were not present when the order was made, and it was made ex parte; but it is clear that the provisions of Order IX, Rule 13, do not apply to the case. The question then is whether an application to set aside an order made under the provisions of Order XI, Rule 21, can lie underSection 151 of the Code.
3. Order XXVII, Rule 15, of the Rules of the Supreme Court, runs as follows:-
Any judgment by default, whether under this order or under any other of these rules, may be set aside by the court or a judge, upon such terms as to costs or otherwise as such court or judge may think fit, and where an action has been set down on motion for judgment under Rule 11 of this Order (corresponding to Order VIII, Rule 10, of our Code) such setting down may be dealt with by the court or a judge in the same way as if judgment by default had been signed when the case was set down.
4. This order applies in cases of default of the plaintiff or the defendant in delivering their pleadings to the opposite party respectively and to various other kinds of defaults of the parties, and the heading of the Order is 'Default of Pleading.' Rule 15, however, applies not only in cases of any judgment by default under Order XXVII, but under any other Order of the Rules of the Supreme Court, and would, therefore, apply to cases of default under Order XXXI which relates to Discovery and Inspection, and corresponds to Order XI of the Civil Procedure Code. Under the notes to Order XXVII, Rule 15, in the Annual Practice, 1931, among the cross-references given, Order XXXI, Rule 21, which corresponds to our Order XI, Rule 21, is separately mentioned. It is clear, therefore, that an application of the kind I have before me would be entertained in England under Order XXVII, Rule 15.
5. The following passage occurs in the notes under Order XXVII, Rule 15, in the Annual Practice, 1931 :-
Any Judgment by Default'.-'Apart from express rules there is an inherent power in the Court to prevent an abuse of its proceedings.
6. In Haigh v. Haigh (1885) 31 Ch. D. 478 the defendant to an action disobeyed an order to produce documents for inspection. Her defence was struck out and judgment given against her in default of a defence. There was evidence that her solicitor had explained to her the effect of the order for production and the consequence of disobeying it. The defendant took out a notice under Order XXVII, Rule 15, for setting aside the judgment and for extending the time for production of the documents. The Court held the default was wilful and refused to set aside the judgment. The point to note is that it was not contended and indeed it could not be contended having regard to the language of Order XXVII, Rule 15, that the Court could not entertain the motion.
7. In Khajah Assenoolla Joo v. Khajah Abdool Aziz ILR (1883) Cal. 923 an order was made for striking out the defence of the defendants who had neglected to comply with an order for production and inspection of documents. The defence was struck out, but Mr. Justice Pigot in making the order under Section 136 of the Code of 1882- which corresponds to Order XI, Rule 21, of the Code of 1908- intimated that the party against whom the order was made might come in and ask to set aside the order made on showing good grounds for such an application.
8. I am unable to see why the provisions of Order XXVII, Rule 15, of the Supreme Court, should not, on general principles of justice, equity and good conscience, be applied to the present application, and to cases where on account of default of discovery and inspection the suit is dismissed or defence struck out under Order XI of the Code. To hold otherwise would drive litigants in such cases of default to an appeal, a costly remedy which in some case may prove to be a hardship,-and may amount to a denial of justice. I, therefore, hold that an application to set aside an order made under Order XI, Rule 21, can be made to the Court under its inherent jurisdiction under Section 151 of the Code, and I overrule the preliminary objection. [The rest of the judgment is not material for purposes of this report.]