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Balmer Lawrie and Company Ltd. Vs. Assam Brook Estates Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 422 of 1974
Judge
Reported inAIR1979Cal64
ActsCode of Civil Procedure (CPC) , 1908 - Section 151 - Order 11, Rule 21 - Order 43, Rule 1
AppellantBalmer Lawrie and Company Ltd.
RespondentAssam Brook Estates Ltd. and anr.
Appellant AdvocateSujit Sinha, Adv.
Respondent AdvocateRuma Pal, Adv.
DispositionApplication dismissed
Cases Referred(Monohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal
Excerpt:
- .....order against the defendant no. 2 for filing its affidavit of documents and for striking out the defence in default. the notice of that application was duly received by the defendant no. 2. on 6-7-78, in presence of the said defendant's advocate on record the learned master passed the following order:-- 'order made in terms of prayers (a), (b) end (c) of the summons save and except that the defendant no. 2 do file its affidavit of documents within a fortnight from date. assessed costs of rs. 44/- to be paid to the plaintiff before filing the affidavit.' 2. the prayer (c) of the petition referred to in the said order was as follows :-- 'in default of filing the affidavit within the time allowed by this hon'ble court, the defence of the defendantno. 2 be struck out and the suit be placed.....
Judgment:
ORDER

Pratibha Bonnerjea, J.

1. This is an application by the defendant No. 2 for stay of hearing of the suit, leave for filing the affidavit of documents, for an order, restoring the defence in the suit etc. The plaintiff had instituted the suit against the defendants Nos. 1 and 2 for recovery of Rs. 7,941.70, interests and costs. The suit was settled with the defendant No. 1. The defendant No. 2 filed its written statement denying the plaintiff's claims. On 29-3-77, the learned Master passed an order directing the plaintiff and the defendant No. 2 to file their respective affidavit of documents by 2-5-77. None of the parties complied with the said order. The plaintiff, thereafter, filed its affidavit of documents on 2-2-78. On 26th June 1978, the plaintiff took out an application before the learned Master for an order against the defendant No. 2 for filing its affidavit of documents and for striking out the defence in default. The notice of that application was duly received by the defendant No. 2. On 6-7-78, in presence of the said defendant's Advocate on Record the learned Master passed the following order:--

'Order made in terms of prayers (a), (b) end (c) of the summons save and except that the defendant No. 2 do file its affidavit of documents within a fortnight from date. Assessed Costs of Rs. 44/- to be paid to the plaintiff before filing the affidavit.'

2. The prayer (c) of the petition referred to in the said order was as follows :--

'In default of filing the affidavit within the time allowed by this Hon'ble Court, the defence of the defendantNo. 2 be struck out and the suit be placed in the list of undefended suit forhearing.'

3. The defendant No. 2 did not file the affidavit of document in time end as such the defence was struck out and the suit was placed in the undefended list The defendant No. 2 thereafter took out the present application. In the petition it has been alleged that its Advocate on record duly communicated the order dated 6th July 1978 to the defendant No. 2 who by its letter dated 10-7-1978 informed the said Advocate on record that the petitioner did not want to disclose any document. The petitioner has a representative in Calcutta by the name of Sri Pannalal Dutta Roy. It was alleged in the petition that the Advocate on record informed this Calcutta representative on 13-7-78 that the affidavit of documents would be made ready and he would be informed about the same. The affidavit was in fact made ready on 11-8-78 long after the expiry of the time. All that the defendant No. 2 had to do was to intimate the plaintiff's Advocate on Record that no document would be disclosed and that should have been done before the expiry of time. But nothing was done, the default clause became operative on expiry of 28-7-78, the defence was struck off and the suit was transferred to the undefended list.

4. Mr. Sujit Sinha, appearing on behalf of the petitioner, submitted that the plaintiff's application before the learned Master was e composite application for discovery and for striking out the defence in default. According to him, no such composite application would lie under Order 11, Rule 21 of C. P. C. after the Civil Procedure Code was amended in 1976 and as such the learned Master had no jurisdiction to pass the order dated 6-7-78. If so, the petitioner, should have preferred an appeal under Ch. 6. Rule 15 of the O. S, Rules or under Order 43, Rule 1 (f) of C. P. C. Admittedly no such step was taken by the petitioner. Moreover, the petitioner did not take any objection to the maintainability of the petition before the learned Master in spite of receipt of the notice of the said application in time. The order dated 6-7-78 was passed in presence of its Advocate on record. Mr. Sinha, thereafter submitted, that unless there was a wilful default by the petitioner in carrying out the order of discovery, the defence should not be and/or could not be struckout. He relied on AIR 1932 Bom 271 at p. 272 end (1885) 31 Ch D 478 in support of his aforesaid contentions. Nobody will dispute this proposition. But Mrs. Ruma Pal, appearing on behalf of the respondent, submitted that the facts of this case would prove glaring wilful default on the part of the petitioner. The order of 6-7-78 came to its knowledge within 10-7-78 but no step was taken by the petitioner up to 11-8-78 knowing fully well the consequence of the default clause in the order. The petitioner has an Advocate on record in Calcutta and a Calcutta representative. In spite of all these advantages, the petitioner could not file its affidavit in time, nor informed the plaintiff's Advocate on record in time that the defendant No. 2 would not disclose any document. If the defendant was informed in time the order dated 6-7-78 could have been suitably modified by mentioning the matter before the learned Master. The aforesaid facts amounted to wilful default and in support of her contention she also relied on AIR 1932 Bom 271 -- the very same case relied on by Mr. Sinha. According to Mrs. Pal the facts of the said case are similar to that of this present case. In that case, the party was held to be guilty of wilful default and Ms defence was struck out. Mrs. Pal invited my atten-tion to page 272 of the report.

'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 27, 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 tha judgment.'

5. I accept the submission of Mrs. Pal and hold that the petitioner is guilty of wilful default.

6. Mr. Sinha thereafter, submitted that the Court has jurisdiction under Section 151 of the Code of Civil Procedure as well as under Chap. XXXVIII, Rule 46 of the O. S. Rules to extend time to file the affidavit of document by treating this application as a fresh application and the order passed would also be treated as a fresh order under Order 11, Rule 18 of the C. P. C.

7. I am unable to accept the abovesubmission of Mr. Sinha. The order dated6-7-78 was an appealable order under Order 43, Rule 1 (f) but the petitioner did notprefer any appeal therefrom. The resultis that the order has become final andbinding on the petitioner. The inherentpower of Court cannot be invoked forneutralising the effect of the order dated6-7-78. In : [1971]1SCR207 (Nain Singh v. Koonwargie) it has beenheld as follows :--

'Inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. In other words the Court cannot make use of the special provisions of Section 151 of the Code where a party had his remedy provided elsewhere in the Code and he neglected to avail himself of the same. Further the power under Section 151 of the Code cannot be exercised as an appellate power.'

8. Mr. Sinha is asking the Court to use the inherent power to restore the defence and extend time for filing affidavit of documents, unless the Court sits on appeal over the order dated 6-7-78, none of the prayer in the petition can be granted. Mr. Sinha, in fact is asking the Court to use the inherent power as at) appellate power which is completely disapproved by the Supreme Court.

9. In : AIR1962SC527 (Monohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal) the Supreme Court held at page 537:--

'Inherent jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 of the Code, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provisions should normally be regarded as exhaustive.'

Any order passed on this application In terms of the prayer in the petition will have the effect of setting aside the order dated 6-7-78 and would amount to exercising inherent power as an appellate power. In view of this I have no jurisdiction to entertain this application as the same is misconceived. In the premises, this application is dismissed with costs.


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