S.B. Kapoor, J.
1. This regular second appeal raises an interesting legal point which is so unique that no direct authority could be cited by the learned counsel for the parties.
2. The suit from which this appeal has arisen was instituted as far back as the year 1959. The plaintiff prayed for a declaration that the order elated the 1st August, 1957, passed by the State Bank of Patiala posting him as an Accountant in its Branch at Narnaul defrading him from the post of Manager ol Kasauli Branch was illegal, mala fide and ultra vires. In addition to claiming some house-rent allowance, he also prayed for a declaration that the withholding of the plaintiffs promotion from 1-1-1952 was illegal, mala fide and an act of discrimination and that he was entitled to promotion to that grade from the aforesaid date. The plaintiff also challenged the order of his premature compulsory retirement dated the 7th June, 1958. contending that it was void and that the plaintiff still continued to be in service. A money claim as regards arrears of salary and future salary, which would accrue to him, was also made. The defendant was initially the State of Punjab and subsequently the State Bank of Patiala was also joined. The defendants re-sisted this suit and at many as 15 issues were framed.
3. In the course ol trial of the suit an application was made by the plaintiff for the issue of interrogatories to the defendants and the trial Court ordered the issue of notice of the application to the other side on the 14th July, 1960. However, the interrogatories were not answered and on the 22nd August, 1960. the plaintiff filed an application praying that the defence of the defendants be struck off for the defendants' non-compliance. Eventually, by an order dated the 8th August, 1961, the trial Court struck off the defence of the defendants on the ground that reply to the interrogatories had not been put in though several adjournments had been granted for the purpose. The defendants appealed against that order and (vide his order dated the 20th February, 1962), the Additional District Judge, Ambala (at Patiala), dismissed the appeal and held that it was not competent in his Court. The defendants then approached the High Court which by its judgment dated the 8th April, 1962, allowed the appeal and set aside the order striking off their defence subject, however, to the payment of Rs. 100 as conditional costs. These costs in the High Court were even not paid before the due date and so the trial Court by its order dated the 18th May, 1962, held that its earlier striking off the defence of the defendants subsisted. This order was again challenged in the High Court in appeal as well as Letters Patent Appeal but with no success. The copy of the judgment of the Letters Patent Bench dated the 27th February. 1963, has been placed on the record.
4. On the case being remitted to the trial Court, the defendants prayed for an opportunity to cross-examine the plaintiff's witnesses but this was not permitted on the ground that their defence had been struck off. The trial Court by its order dated the 3rd August, 1964, held that the defendants were barred even from addressing arguments to it.
5. Ultimately, considering the evidence already on the record, the trial Court in its elaborate judgment dated the 3rd October, 1964, held that 'the order of the compulsory retirement of the plaintiff is illegal unconstitutional, mala fide, void and not binding on the plaintiff and that the plaintiff continues to be in the service of the Bank. It is further heid that the plaintiff is entitled to be promoted to the Manager's grade of Rs 250-15-340/EB -20-440 with effect from 1-1-1952 and that his promotion had been withheld illegally A decree for Rs. 3,690 is passed in favour of the plaintiff against the defendants. The defendants shall pay proportionate costs of the suit in addition The defendants shall pay interest on the sum of Rs. 3,599 at the rate of 6 per cent from 30-12-1959 till realisation'
6. Against this order the defendants ap pealed to the District Judge and Shri Surinder Singh, Additional District Judge, Ambala (Camp Patiala), by his order dated the 27th September, 1965, held on the objection of the plaintiff that once the defence of the appellantshad been struck off by the High Court, their appeal on the merits was incompetent and theappellants were not even entitled to urge any-thing in their favour by making a reference to the evidence produced by the plaintiff himself. This is the order impugned in the present second appeal.
7. The order striking ol the defence for failure of the defendants to answer the interrogatories was one made under Order11, Rule 21, of the Code of Civil Procedure, which is as follows:-
'Order 11, Rule 21.-Where any party fails to comply with any order to answer interrogatories, or for discovery, or inspection ol 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 ana an order may be made accordingly.'
(7) Now, this rule does not say in so mam terms that the defendants would not even be permitted to address arguments to the that Court on the evidence already on the record, but, of course, with this point I am not here concerned. In any case it does not say anything at all about the right of the defendants to be heard in appeal. There is a specific provision in Clause (f) of Rule 1 of Order 43 ol the Code laving down that an appeal under the provisions of Section 104 ol the Code shall tie against an order under Rule 21 of Order 11 of the Code. The defendants have, of course, exhausted that remedy long ago and the legal question for consideration and the sole question which arises for determination in this appeal is whether the defendants have now a right to be heard in an appeal against the decree eventually made in the suit.
8. 'Decree' is defined in Clause (2) ol Section 2 of the Code as follows: -
' 'Decree means the formal expression ol an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, out shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.'
9. Under Section 96 of the Code, save where otherwise expressly provided in the body of the Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. Under Sub-section (2), an appeal may lie from an original decree passed ex parte, and under Sub-section (3), no appeal shall lie from a decree passed by the Court with consent of parties. Section 105 of the Code is also material and is as follows;-
' 105 (1). Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal
(2) Notwithstanding anything contained in Sub-section (1) where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.'
10. The contention advanced by Mr, Sibal, on behalf of the defendants-appellants, is that in view of the provisions of Section 105 read with the provisions previously discussed, the appellants are competent to file this appeal. He has relied on Carikapati Veeraya v. N. Sub-biah Choudhry, AIR 1957 SC 540, in which it has been held that the right of appeal is a vested right and it can only be taken away by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. This case is not of much bearing on the point under issue. For deciding whether an appeal to the District Court was competent, it is necessary to consider the scope and implication of Rule 21 of Order 11 of the Code. So far as the plaintiff is concerned, his failure to comply with any order to answer interrogatories, or for discovery or inspection of documents renders him liable to have the suit dismissed for want of prosecution. The suit being at an end a decree follows dismissing the suit and whether the plaintiff appeals under Section 96 of the Code or under Clause (f) of Rule 1 of Order 43, obviously the only point which he can agitate is whether the order under Order11, Rule 21, of the Code was a proper one or not to be made in the circumstances of the case and whether the Court acted properly in exercise of its judicial discretion in dismissing this suit for want of prosecution. But if it is the defendant who is in default for non-compliancc with the order made under Order11. Rule 21, the suit is not to be automatically decreed. All that the rule lays down is that he is to be placed in the same position as if he had not defended and the Court has then to consider the plaintiff's case on the merits-disregarding any defence which may have been offered by the delendants by written statement or otherwise - it has to give a finding on the various issues raised and a decree in favour of the plaintiff would follow only if the Court finds in exercise of its judicial discretion that the material issues have been estab-lished in favour of the plaintiff and against the defendants. Suppose, till the stage or the decree the defendant has not filed any appeal under Clause (f) of Rule 1 of Order 43 of the Code against the order of the Court striking off his defence it cannot be said that he is debarred from filing an appeal against the decree itself and in that decree raising in view of Section 105 of the Code, the error or irregularity in the interlocutory order made under Rule 21, Order11, of the Code He may, however, choose not to press that point and may confine hisattack to the insufficienoy of the evidence produced by the plaintiff on the record to prove any material issue in the case. No provision in the Code could be pointed out which would debar the defendant from doing so.
11. If the provisions of Rule 21 of Order 11 are interpreted in the strict sense in which they have been by the Court below, viz., that by the passing oi such an order the mouth of the defendant is shut for ever so far the case is concerned, several anomalies may arise. For instance, the trial Court might have through inadvertence or partisanship committed an error of jurisdiction either territorial or pecuniary while passing its decree on failure of the de-dendant to comply with an order striking out his defence, or again the Court might have decreed the plaintiff's claim in excess of the claim in the plaint, e.g., while the suit was for a declaration which may have given the plaintiff a decree for possession, or if the suit was for judicial separation, the Court might have granted a decree for divorce. It would he anomalous, unjust and even unthinkable that in such circumstances the defendant should not be able to approach the superior Court for redress and I do not see how in view of the provision of Section 96 of the Code of Civil Procedure his right to appeal could be shut out.
12. As mentioned above, there is no direct authority bearing on the point. On be-half of the plaintiff reliance is principally placed on Idannessa Bihi v. Syed Abdul Wadad, AIR 1959 Cal 462, which the lower Appellate Court has followed. That appeal arose from a suit lor rejection in which during the pendency of the suit an application under Section 11 (4) of the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950, was filed on be-half of the landlady (the appellant in the case) for a direction to the tenant to pay arrears of rent and also to pay current rent month by month according to the provisions of that section. That application was allowed. Before the suit came up lor final hearing, the tenant committed some defaults in payment of current rent and on the application made by the plaintiff, the trial Court made an order striking out the defence of the tenant against ejectment. Thereafter the defendant failed to appear and the suit was decided ex parte. The lower appellate Court held that there was no default of the description found by the trial Court and that the tenant was not disentitled to get protection from eviction. A conditional order was made for pay-ment of rent which was complied by the tenant and the lowci Appellate Court dismissed the suit of the plaintiff. The argument addressed to the High Court on behalf of the plaintiff was that the defendant was precluded by statute from urging as a around of defence that he was not a defaulter and, accordingly, the same ground could not be urged by was of attack in the appeal. This contention was upheld by the High Court. It was observed that it was only after showing that his defence had been improperly on erroneously struck out that a defendant could urge that defence in appeal hy way of challenge against the ex parte decree passed by the trial Court. The emphasis inthe judgment all the time was on the consideration that it was not competent to the tenantto press his case against eviction in appeal before the lower Appellate Court. It was not held in that case that if the trial Court had acted in excess of its jurisdiction or that the decree passed by it was void on same ground. such as being passed on a statute which had been repealed, that ground could not be taken in appeal by the defendant. In other words, the principle laid down in that case applies to its own particular facts and cannot he stretched to support the conclusion that the appeal in the present case would per se he incompetent.
13. Another case cited on behali of the plaintiff and relied upon by the lower Appellate Court is S. B. Trading Co., Ltd. v, Olympic Trading Corporation, Ltd.. AIR 1952 Cal 685. All that was held in the case was that when the defence of the tenant is struck out under the provisions oi Sub-section (4) of Section 14 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, the defendant has no right to cross-examine the plaintiff's witnesses as to the facts establishing the claim to eject-ment. That case can also be distinguished on the same ground as AIR 1959 Cal 462 (supra).
14. On behalf oi the plaintiff D. Rule Gel-latly v. J. R. W. Cannon, AIR 1953 Cal 409 was also referred to. This is also a case under the same provision ot the West Bengal Premises Rent Control (Temporary Provisions) ct, 1950. The tenant had submitted to the order made under Section 14 (4) of the Act by making payment ot rent month by month and after committing default in payment. he turned round and tried to avoid the result ot his default by setting up a plea that Section 14 (4) did not apply to his case as he was not a tenant. It was held that he could not he permitted to do so
15. Then reference on behalf of the plaintiff was made to Hamkarandas Radbaval-abh v. Bhagwandas Dwarkadas, AIR 1965 SC 144 at p. 1145. It was held in that case that as an express provision is made under Rule 4, Order 37 of the Code a Court is empowered to set aside a decree passed under the provisions of that Order If a case does not come within the ambit ot Rule 4, there was no scope to resort to Section 151 for setting aside such a decree. It was argued that on the same analogy since express provision was made by Clause (f) of Rule 1 ot Order 13 and Rule 21 of Order 11 of the Code for an appeal against the order ol striking oft the defence, the same order could not be challenged in dp-peal. That argument as discussed above, it not correct and this is in view of the combined result ol Sections 96 and 105 of the Code. The only exception to the provisions of Sub-section (1) of Section 105 appears to be the one given in Sub-section (2) thereof, that is when a party aggrieved by the order of remand, from which an appeal lies does not appeal therefrom, he shall then be precluded from disputing its correctness. An appeal against an order of remand is mentioned in Clause (n) of Rule 1 of Order43. However, no such exception in found in Section 105,so far as order under Rule 21, Order 11, is concerned.
16. There seems no reason why a defendant against whom in the courie of hearing of the suit an order striking out the defence is made, tor non-compliance with direction to answer interrogatories, or tor discovery or inspection of documents, should have his right of appeal be placed in a worse position Hum a defendant who chooses not to appear at all (see Rule 6(1) of Order 9), or absents himself during the course of hearing (see Rule 12 ot Order 9), or fails to comply with any specific provision ot the Code directing him to file a written statement (see Rule 10 of Order 8) or does not comply with the direction ot the Court made under Rule 3 of Order 17. The right of appeal is not shut out in these cases. An order pronouncing judgment against a party who de faults to comply with the direction made under Rule 10, Order 8, is appealable, vide Clause (b) ot Rule 1 ot Order 43. Similarly, an order under Sub-section (2) ot Section 96 specifically provides that an appeal may lie from an original decree passed ex parte and under Clause (d) of Rule 1 of Order 43, an order under Rule 13 of Order 9, rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte, is also appealable. A person aggrieved by an order made under Rule 3 of Order 17 has also a remedy by way of appeal, as held in Patina Lal Mandwari v. Mt. Bishen Dei, AIR 1946 All 353 (FB) and Pitamber Pra sad v. Sohan Lal. AIR 1957 All 107
17. For all reasons given above, the con elusion is that the view ot the lower Appellate Court as to the appeal before it being per se incompetent is not correct. The appeal is accordingly allowed but in the circumstances of the case with no order as to costs. The parties are directed to appear before the lower Appel late Court on 5th December 1966.