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Arya Insurance Co. Ltd. Vs. Lala Channoolal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 350 of 1954
Judge
Reported inAIR1957All400
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 11, Rule 21 - Order 43, Rule 1 - Order 47, Rule 7
AppellantArya Insurance Co. Ltd.
RespondentLala Channoolal
Appellant AdvocateM.N. Shukla, Adv.
Respondent AdvocateB.R. Avasthi, Adv.
DispositionPetitions dismissed
Excerpt:
civil - striking out defense - order11 rule 21 and order 43 rule 1 of code of civil procedure, 1908 - fail to comply with order - notice not necessary - court is empowered to strike out written statement - no provision for appeal against refusal of review. - - the defendant still failed to comply with the order, with the result that the court suo motu granted further time and itfinally passed an order on plaintiff's application no......of february, 1954 civil revision no. 350 of 1954 is directed against the order of the district judge passed on 13th february, 1954, and civil revision no. 351 of 1954 is directed against the order of the munsif passed on 19th december, 1953.4. after hearing learned counsel for the applicant i am of opinion that no case has been made out to revise the orders in question. the defendant wasobviously a contumacious party and in spite of enough time having been granted, he did not comply withthe order of answering interrogatories and of making discovery of document. order xi, rule 21 empowers a court to strike out the written statement of a defendant and to place the defendant in the same position as if he had not defended the suit, if the defendant fails to comply with an order to answer.....
Judgment:
ORDER

Roy, J.

1. These two civil revisions by the defendant arise out of two different orders passed in the same suit. The suit was instituted by Chhannoo Lal, the plaintiff-opposite-party, for recovery of certain sum as salary. Under the provisions of Order XI of the Code of Civil Procedure the defendant, on an application by the plaintiff dated the 22nd of August, 1953, was called upon to answer certain interrogatories and to make discovery of certain papers. Twelve days time was initially granted to comply with the order. On the 5th of September,1953, time was extended by twenty days on defendant's application, which was again extended on 23rdSeptember, 1953, by three weeks. The defendant still failed to comply with the order, with the result that the court suo motu granted further time and itfinally passed an order on plaintiff's application No. 63-C dated 31st October, 1953, to the following effeet:

'Defendant has not filed either answer or objection. The defence of the defendant is struck o(f. Suit be heard ex paite on the date fixed'.

This order was passed without notice to the defendant on 31st October, 1953, under the provisions of Order XI Rule 21 of the Civil Procedure Code. That rule says that where any party fails to comply with any Order to answer interrogatories, or for discovery or inspection of document, 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. The rule nowhere requires that notice of the application is to be given to the opposite side.

2. On. 14-11-1953 the defendant made an application in review before the trial court praying for the setting aside of the order of the 31st of October, 1953, and an affidavit was filed to the effect thai on 28th September, 1953, a functionary of the defendant company had left for Bombay on an urgent work and that was the reason why the order had not been complied with. The Munsif dismissed the application in review on 19th December, 1953, holding that the application and the affidavit did not disclose what kind of urgency made the defendant company forget that the reply to the interrogatories had to be Sled within three weeks of 23rd of September, 1953. more especially in a case where the time was extended suo motu by the court and yet the defendant did not choose to find out what was happening in the case.

3. On the 23rd of December, 1953, the defen-dant filed an appeal against the order dated 31st October, 1953, under the provisions of Order XLIII, Rule 1(f) of the Code of Civil Procedure; and along with the memorandum of appeal he filed an application before the appellate judge under Section 14 of the Limitation Act praying that the delay in filing the appeal may be condoned. On that application the following order was passed:--

'The order appealed against was passed on 31st October, 1953, but its copy was applied for on 21st of December, 1953, long after the period of appeal, Appellant was duly represented by counsel so that it makes no difference whether appellant belongs to Banaras or Kanpur. Hence the delay cannot be condoned. Appeal rejected as time barred.'

This order was passed on the 13th of February, 1954 Civil Revision No. 350 of 1954 is directed against the order of the District Judge passed on 13th February, 1954, and Civil Revision No. 351 of 1954 is directed against the order of the Munsif passed on 19th December, 1953.

4. After hearing learned counsel for the applicant I am of opinion that no case has been made out to revise the orders in question. The defendant wasobviously a contumacious party and in spite of enough time having been granted, he did not comply withthe order of answering interrogatories and of making discovery of document. Order XI, Rule 21 empowers a court to strike out the written statement of a defendant and to place the defendant in the same position as if he had not defended the suit, if the defendant fails to comply with an order to answer interrogatories or for discovery or inspection of document; and such a step can be taken by the Court when the party interrogating or seeking discovery or inspection applies to the court for an order to that effect.

Occasions may arise where an order of that nature may be passed by a court after issuing notice to the party. But notice is not in every case necessary; and Order XI, Rule 21 does not specifically provide for notice. The order that was passed by the Munsif on the 31st of October, 1953, striking out the defence was passed after several opportunities had been given to the defendant to answer the interrogatories and to make discovery of the documents. It has been urged on behalf of the applicant that the matter necessitated the looking up of a number of records at the head office of the defendant and that that was the reason why the delay was caused.

It has been further urged that the Secretary of the defendant company had gone away at Bombay on an important business of the company and that that was additional reason why default had been made. It does not, however, stand to reason that in the case of a limited insurance company the insurance company was not in a position to inform the court when the order dated 23rd of September, 1953. expired that certain additional factors intervened which necessitated the extension of further time. The court did not proceed to dispose of the matter in a hurry. The court, as I have already observed, suo motu granted further time when finally the order on the 31st of October, 1953, was passed.

The appeal was obviously filed beyond time and the reason which was set out by the defendant-appellant for the condonation of delay under Section 14 of the Limitation Act did not commend itself to the judge when the judge rejected the appeal as time barred. It has been contended by the applicant that the judge did not consider the question as to whether the time that was taken by the appellant in prosecuting the application for review should have been excluded or not. The judge in his order did not of course mention that point specifically, but that alone will not justify the applicant to have the order passed by the judge revised. The judge was of the opinion that the delay cannot be condoned under Section 14 of the Limitation Act, and that sets the appeal at rest.

5. So far as the review is concerned, the Code, does not provide for an appeal against refusal of a] review. It provides for an appeal under Order XLIII, Rule 1 (w) from an order granting a review; and an order is appealable in such a case on the ground specified in Order XLVII, Rule 7 (1) of the Code. An order passed in review rejecting the review may, how-ever, be brought into question in revision; but the scope of revision lies within a very narrow compass, for in such a case the applicant has got to justify Ins contention that in the exercise of its jurisdiction the court of first instance in refusing review, acted illegally or with material irregularity.

No such illegality or material irregularity has been found. If the court in rejecting the review was ofthe view that the ground set out by the applicantwas not proper and not acceptable, it would not beopen to a revisional court to come to a contrary conclusion on that point. Under the circumstances I amof opinion that there is no force in these two revi-sional petitions and they are dismissed with costs.


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