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Mrs. Namita Dhar Vs. Dr. Amalendu Sen - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 1708 of 1973
Judge
Reported inAIR1977Cal187
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 and 151 - Order 11, Rule 21
AppellantMrs. Namita Dhar
RespondentDr. Amalendu Sen
Appellant AdvocateNarendra Nath Biswas, Adv.
Respondent AdvocateAsoke Kumar Sen Gupta, Adv.
Cases Referred(Maharani Nilimaprova v. Kadambini Dasi). Mr. Biswas
Excerpt:
- .....code of civil procedure.2. the facts of the case may briefly be stated as follows :--the opposite party filed a money suit against the petitioner. after the petitioner filed written statement the opposite party filed an application for direction to make discovery of documents that might be relied on by the petitioner. the petitioner through her husband made discovery of documents in her possession or power on 21st of april, 1972 stating therein that the most important document had already been filed in court. thereafter on the application of the opposite party for further discovery of documents, an order was passed on june 29, 1972 directing the petitioner to make further discovery on oath by way of supplying further particulars regarding the discovery made on behalf of the petitioner......
Judgment:

N.C. Mukherji, J.

1. This Rule arises on an application under Section 115 of the Code of Civil Procedure and is directed against an order striking out defence on defendant's failure to comply with an order for making further discovery and an order refusing to vacate the said order by re-consideration of the matter under Section 151 of the Code of Civil Procedure.

2. The facts of the case may briefly be stated as follows :--

The opposite party filed a Money Suit against the petitioner. After the petitioner filed written statement the opposite party filed an application for direction to make discovery of documents that might be relied on by the petitioner. The petitioner through her husband made discovery of documents in her possession or power on 21st of April, 1972 stating therein that the most important document had already been filed in Court. Thereafter on the application of the opposite party for further discovery of documents, an order was passed on June 29, 1972 directing the petitioner to make further discovery on oath by way of supplying further particulars regarding the discovery made on behalf of the petitioner. As the petitioner being a lady and not being familiar with Court affairs and the petitioner's husband having left Calcutta in August 1972 and then was attacked with Jaundice and could not return to Calcutta in due time no steps could be taken on behalf of the petitioner. On 25th of August 1972 the learned Subordinate Judge rejected the written statement and fixed the suit for ex parte hearing on September 13, 1972 although there was no application on behalf of the opposite party for rejecting the written statement. On September 13, 1972 an application was filed by the petitioner praying for vacating the order dated 25th of August 1972. The said application was rejected. Being aggrieved, the petitioner has come up before this Court.

3. Mr. Narendra Nath Biswas, learned Advocate appearing on behalf of the petitioner, in the first place submits that the learned Court below was wrong in rejecting the written statement as no application was filed on behalf of the opposite party, and that being so, the Court cannot pass an order rejecting the written statement suo motu under Order 11, Rule 21 of the Code, In support of his contention Mr. Biswas places before us a Bench decision of this Court reported in ILR (1963) 2 Cal 309, (Braja Behari Sen v. Arun Cocmar Bose). At page 313 it has been held that 'to dismiss a suit for failure of the plaintiff to comply with an order for inspection is not automatic in its operation. Under Order 11, Rule 21 the Court can act on the application of a party and not suo motu'. It was also held that 'the Court does not impose the penalty under Order 11, Rule 21 except in clear cases and where the party refusing inspection is contumacious or has deliberately disobeyed the order of the Court with full knowledge thereof'. Mr. Biswas submits that in this case no application was filed and, moreover, circumstances were not such that the extreme penalty should have been imposed by the Court.

4. Mr. Ashoke Kumar Sen Gupta, learned Advocate appearing on behalf of the opposite party, submits that in this revisional application the petitioner cannot challenge the order which was passed under Order 11, Rule 21. Assuming that the said order was passed illegally the petitioner ought to have preferred an appeal against the said order, instead he filed an application under Section 151 of the Code and the learned Court below rightly held that as the order challenged was appealable the application under Section 151 was not maintainable. The learned Court below relied on the decision reported in 98 Ind Cas 70 = (AIR 1927 Cal 158), (Asutosh Ghose v. Indu Bhusan Ghose). It is a Bench decision of our Court and it has been laid down

'An order under Order 11, Rule 21. Civil P. C. dismissing a suit for failure to answer interrogatories being appealable, a Court has no power to review such an order in the exercise of its inherent power under Section 151, Civil P. C. A Court cannot invoke an inherent jurisdiction where there is a provision in the Code which, if applied, will meet the justice of the case, however desirable it may deem that an order should be passed under Section 151, Civil P. C.'

In this connection Mr. Sen Gupta also relies on a decision reported in AIR 1947 All 343, (Chander Bhan Singh v. Lallu Singh). It was held in this case that 'An order under Section 151 cannot be made where there is a specific remedy provided by the Code applicable to the circumstances of the case. Order 43, Rule 1 gives a party a right to appeal from an order passed under Order 11, Rule 21 and if he fails to avail himself of that remedy the order under Order 11, Rule 21 cannot be set aside under Section 151'. Mr. Sen Gupta in support of his contention relies on the Supreme Court decision reported in : [1971]1SCR207 , (Nainsingh v. Koonwarjee). In this case it has been held that 'If no appeal is preferred against an appealable order, its correctness is no more open to examination'. It was further laid down that 'Under the inherent power of Courts recognised by Section 151, Civil P. C., a Court has no power to do that which is prohibited by the Code. 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'. In short, Mr. Sen Gupta contends that assuming that the order rejecting the written statement was not a proper order even then the same cannot be challenged in an application under Section 151 of the Code as the order was an appealable one. It may be noted that Mr. Sen Gupta, however, submits that the Court may pass an order under Order 11, Rule 21 suo motu. He submits that Rule 21 has two parts. The first part says about the liability of the plaintiff to have his suit dismissed and the liability of the de-fendant to have his defence struck out, and the second part provides that 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. Mr. Sen Gupta wants to say that when a liability has been provided in the first part of Rule 21 it means that the Court can pass an order suo motu. The second part only provides that a party interrogating or seeking discovery or inspection may file an application for getting an order from the Court. On reading Rule 21 cerefully we do not accept this submission of Mr. Sen Gupta and we hold that a Court cannot pass an order suo motu under Order 11, Rule 21. We therefore find that the order passed by the learned Court below in striking out the defence was not a proper order. But in this case the only point that requires to be decided is whether the said order can be challenged in this revisional application when without preferring an appeal an application was filed under Section 151 of the Code.

5. Mr. Biswas contends that it is true that the order rejecting the written statement was an appealable order, but that appeal lay to the District Judge and not to this Court and that being so, the petitioner can very well challenge the said order in this Court under Section 115 of the Code. In support of his contention he refers to a decision reported in AIR 1944 Cal 309, (Maharani Nilimaprova v. Kadambini Dasi). Mr. Biswas refers to Section 115 of the Code which provides 'The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto'. In the case referred to above it has been held 'The precise meaning of the word 'thereto' has given rise to some controversy, but it seems to us that it can only refer to the High Court and not to a Court subordinate to the High Court', and their Lordships held that in such a case where an appeal lies not to the High Court but to the lower Court and the petitioner in-stead of preferring an appeal to the lower Court files an application under Section 115 of the Code, that application can be entertained by the High Court. But the facts of the present case are completely different. In this case the petitioner did not come up to this Court against the order striking out the written statement. But he filed an application under Section 151 of the Code which was completely misconceived. That being so, this decision does not help the petitioner. For the facts and circumstances of the case stated above and relying on the decisions referred to above we are of the opinion that the learned Court below was correct to hold that an application under Section 151 was not maintainable. In the circumstances we find nothing to interfere.

6. In the result, the application fails and the Rule is discharged. There will be no order as to costs.

B.C. Ray, J.

I agree.


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