Civil Appeal No 2126 of 1968
Appeal by Special Leave from the Judgment and order dated 14 8 1968 of the Punjab and Haryana High Court in Civil Revision No 430 of 1967 In person CK Babbar for the Appellant
Harbans Singh for the Respondent
The Judgment of the Court was delivered by SEN J
This appeal by special leave in directed against the order of the
Punjab and Haryana High Court dated 14 August 1968 upholding an order of the trial court dated 23 May 1967 striking out the defence of the defendant under order XI rule 21 read with section 151 of the Civil Procedure Code 1908 and directing that the defendant cannot be permitted to cross examine the plaintiff s witnesses
The suit out of which this appeal arises was brought by the respondent Trilok Nath Mahajan as plaintiff against the appellant defendant Ms Babbar Sewing Machine Co on 9th March 1966 for recovery of a certain sum alleged to be due to Ms Chitra Multipurpose Co operative Society Jogyana Ltd Ludhiana which remained unpaid towards the price of sewing machines sold on credit from time to time claiming to be an assignee under a deed dated 27 April 1965
The transaction sued upon was of the year 1959 and the suit was obviously barred by limitation
The plaintiff however pleaded that the defendant had acknowledged his liability by his letter dated 8 March 1963 for Forwarding cheque No 01194 dated 7 March 1963 for Rs 50 drawn on the Punjab National Bank Ltd Yamunanagar
The defendant disputed the plaintiff s claim and pleaded inter alia that he does not owe anything to the said society and as such the suit was not maintainable that there was no privity of contract between the parties nor does any relationship of a creditor and debtor exists between them
He further pleaded that the suit was barred by limitation
He also pleaded that the trial court had no jurisdiction to try the suit
On 11 November 1966 the plaintiff moved an application under order XI rules 14 and 18 for production and inspection of the following documents a Cash book day book and ledger for the year 1 4 1959 to 31 3 1960 and 1 4 1960 to 31 3 1961
H b Cash book and ledger for the years 1 4 1961 to 31 3 1966 60 c All the original bills issued in favour of the defendant by Ms Chitra Multipurpose Cooperative Society Jogyana Ltd including Bill No 22 dated 13 5 1960 Bill No 43 dated 2 8 19607 Bill No 49 dated 14 9 1960 Bill No 53 dated 26 9 1960
d Original letters written by the plaintiff to the defendant and letters addressed by Ms Chitra Multipurpose Cooperative Society Jogyana Ltd to defendant
e Counterfoils of cheque book in use on 7 3 1963
f The original cheque No 01194 dated 7 3 1963
g Bank pass book from 1 4 1962 to 31 3 1964 with counterfoils of the cheque books with which the respondent TN Mahajan firm had an account
Despite objection by the defendant the trial court by its order dated 11 January 1967 directed their production on 30 January 1967 holding that they were relevant for the determination of the controversy between the parties
On 30 January 1967 when the suit came up for hearing the court adjourned the suit to 7 February 1967 for production of the documents
In compliance with the court s order on 7 February 1967 the defendant produced all the documents in his possession viz account books for the years 1959 60 to 1965 65 but he was permitted by the trial court to  take back the account books as they were required to be produced before the Income Tax officer Yamunanagar on that day with the direction that he should produce the same on 23 February 1967
On 23 February 1967 the defendant appeared in the court with his books but the trial judge directed him to produce them on 16 March 1967 and in the meanwhile allow their inspection to the plaintiff with three days  notice
The defendant accordingly sent a letter dated 25 February 1967 asking the plaintiff to take inspection of the account books on 27 February 1967
On 28 February 1967 the plaintiff made an application that the defendant had not produced the documents for inspection but this was apparently wrong as is evident from the registered notice dated 1 March 1967 sent by the defendant to the following effect After the last date of hearing on 2321967 I wrote you a letter from Yamuna Nagar on 2521967 informing you that I shall be present in the office of my counsel Sh
H L Soni on 27th February 1967 at 6 pm for affording you the inspection of the documents
I reached at my counsel s office at the scheduled informed time but you did not turn up
I 61 kept waiting for you uptil 830 pm
On that day
Later A I contacted your lawyer Shri section R Wadhera but he expressed his inability to contact you
Now I would be reaching Ludhiana again on the 9th March 1967 and shall be available in my lawyer s Shri H L Soni s office from 7 pm to 9 pm and you will be free to inspect the documents at the afore mentioned venue and during the above noted time
Three days  clear notice is being given to you
Please be noted to this effect  Admittedly the plaintiff never sent any reply to the notice
Nor did he avail of the opportunity of inspecting the account books at the office of the defendant s lawyer on 9 March 1967
On 16 March 1967 the trial court passed an order saying that the defendant should produce the books within four days in the court to enable the plaintiff s counsel to inspect them before 29 March 1967 ie the date fixed for evidence failing which the defence of the defendant would be struck off
On 29 March 1967 three witnesses of the plaintiff were examined
After the examination of these witnesses the trial court asked the plaintiff s counsel that he should apply under order XI rule 21 to strike out the defence of the defendant
On 31 March 1967 the plaintiff accordingly made an application under Corder XI rule 21 read with section 151 of the Code asserting that the defendant had failed to comply with the order of the court as regards production of documents inasmuch as he had not produced them for inspection
The defendant opposed the application stating that there was no failure on his part to produce the documents ordered
It was stated that all the documents as were capable of identification had been produced in the court
It was alleged that the plaintiff had already inspected the documents that were specifically set out in the application
It was also alleged that the plaintiff had not once but thrice or even four times inspected the documents to his entire satisfaction except that he was prevented from making fishing roving and searching enquiries into the entries which had no relevance to the suit transaction
It was therefore urged that the striking out of the defence would not he warranted by law
Feeling apprehensive that he would not get a fair trial at the hands of the trial Judge the defendant applied to the District Judge Ludhiana for the transfer of the suit on 10 April 1967
While the District Judge was seized of the transfer application the defendant moved the 62 High Court for transfer of the suit to some other court of competent jurisdiction
The High Court by its order dated 15 May 1967 declined to interfere
On 23 May 1967 the trial court passed an order under order XI rule 21 striking out the defence of the defendant stating that he was placed in the same position as if he had not defended the suit and adjourned the suit to 21 June 1967 for examination of the remaining witnesses of the plaintiff
On 21 June 1967 the court did not allow the defendant s counsel to cross examine plaintiff s witnesses holding that in view of the fact that his defence has been struck off he had no right to participate and therefore could not cross examine the witnesses produced in the court
The defendant filed a revision before the High Court which was rejected on 14 August 1968
In this appeal two questions are involved firstly whether the trial court was justified in striking out the defence of the defendant under order XI rule 21 of the CPC 1908 and secondly whether the High Court was right in observing that in view of the clear language are of order XI rule 21 the defendant cannot be permitted to cross examine the plaintiff s witnesses
It is a travesty of justice that the trial court should have in the facts and circumstances of the case passed an order striking out the defence of the defendant under order XI rule  1 and that the High Court should have declined to set it aside
The penalty imposed by order XI
rule 21 is of highly penal nature and ought only to be used in extreme cases and should in no way be imposed unless there is a clear failure to comply with the obligations laid down in the rule
Order XI rule 21 of the Code of Civil Procedure reads 21
Where any party fails to comply with any order to answer interrogatories or for discovery of inspection of 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 and an order may be made accordingly
 Section 136 of the Code of Civil Procedure 1882 corresponding to order XI rule 21 of the CPC 1908 was based upon order XXXI rule 20 now replaced by order XXIV rule 16 framed under the Judi 63 cature Act
The practice of the English Courts is and it has always A been to make the order a conditional one and to grant a little further time for compliance
In practice this provision is virtually obsoletel
Even assuming that in certain circumstances the provisions of order Xl rule 21 must be strictly enforced it does not follow that a Suit can be lightly thrown out or a defence struck out without adequate reasons
The test laid down is whether the default is wilful
In the case of a plaintiff it entails in the dismissal of the suit and therefore an order for dismissal ought not be made under order XT rule 21 unless the court is satisfied that the plaintiff was willfully withholding information by refusing to answer interrogatories or by withholding the documents which he sought to discover
In such an event the plaintiff must take the consequence of having his claim dismissed due to his default ie by suppression of information which he was bound to give Denvillier vs Myers2 In the case of the defendant he is visited with the penalty that his defence is liable to be struck out and to be placed in the same position as if he had not defended the suit
The power for dismissal of a suit or striking out of the defence under order XI rule 21 should be exercised only where the defaulting party fails to attend the hearing or is guilty of prolonged or inordinate and inexcusable delay which may cause substantial or serious prejudice to the opposite party
It is well settled that the stringent provisions of order XI rule 21 should be applied only in extreme cases where there is contumacy on the part of the defendant or a wilful attempt to disregard the order of the court is established
An order striking out the defence under order XI rule 21 of the Code should therefore not be made unless there has been obstinacy or contumacy on the part of the defendant or wilful attempt to disregard the order of the court
The rule must be worked with caution and may be made use of as a last resort Mulla s CPC 13th Ed
I p 581 Khajah Assenoolla Joo vs Khajah Abdool Aziz3 Banshi Singh vs Palit Singh4 Allahabad Bank Ltd vs Ganpat Rai5 Haigh vs Haigh6 and Twycroft vs Grant7
1 Halsbury s Laws of England 4th Ed Vol 13
p 32
2 3 ILR 4 7 CLJ 29S 5 ILR 6 7 64 In Haigh v Haigh supra Pearson J observed I have no hesitation in saying that I have the strongest disinclination as I believe every other Judge has that any case should be decided otherwise than upon its merits
But this order was introduced to prevent plaintiffs and defendants from delaying causes by their negligence or willfulness
So great was my anxiety to relieve this lady from the consequence of her wrong headedness if by any possibility I could on proper terms that I hesitated to refuse to make the order asked for and I have looked into all the cases I could find on the subject to see that the practice of the Court has been on this order
And I can find no case in the books where it has been applied where a man knowingly and wilfully has allowed judgment to go by default
 In Twycroft vs Grant supra Lush J interpreting corresponding order XXXI rule 20 of the Judicature Act held that he would only exercise the powers conferred by the rule in the last resort
In England the party against whom such an order is made would it seems be entitled to come in and ask that the order might be set aside on showing sufficient grounds for such an application
In Khajah Assenoolla Joo vs Khajah Abdool Aziz supra Pigot J therefore made an order striking out the defence of the defendant under section 136 of the CPC 1882 in consequence of non compliance with the earlier order for production of certain documents and at the same time mentioned that the party against whom the order was made might come in and seek to set it aside on showing sufficient grounds for the application
It is settled law that the provisions of order XI rule 21 should be applied only in extreme cases where obstinacy or contumacy on the part of the defendant or a wilful attempt to disregard the order of the court is established
As pointed out by Lord Russel CJ in Reg
vs Senior 1 and affirmed by Cave L C in Tamboli vs Gl
P Rail way2 wilfully means that the act is done deliberately and intentionally not by accident or inadvertence but so that the mind of the person who does the act goes with it In this case there was no default much less any wilful default on the part of the defendant to comply with any order of the court under order XI rule 182
In obedience of the order of the court dated 1 2 ILR 65 11 January 1967 the defendant came all the way from Yamunanagar to Ludhiana on 27 February 1967 and was waiting at his lawyer s office from 600 pm to 830 pm when the plaintiff or his counsel did not turn up
Thereafter the defendant sent a registered notice dated I March 1967 offering inspection of the documents at his lawyer s office on 9 March 1967 but the plaintiff did not avail of the opportunity of inspecting the documents
The defendant had filed an affidavit that the rest of the documents were not in his possession and could not be produced
The account books for the years 1961 62 1962 63 and 1963 64 had to be produced by the defendant before the Income Tax officer Yamunanagar on 31 January 1967 then 7 February 1967 and 16 March 1967
An affidavit to this effect was also filed
It is somewhat strange that the trial court should have fixed the dates which were the dates fixed by the Income Tax officer In view of the notice dated 1 March 1967 there can be no doubt that the defendant had tried to comply with the order of the court by offering inspection on 27 February 1967
There is no dispute that 27 February 1967 was the date mutually agreed upon between the counsel for the parties
The only controversy is about the scheduled time
The time fixed according to the plaintiff s application dated 28 February 1967 was 230 pm at his lawyer s office while that according to the defendant s notice dated 1 March 1967 it was 63 pm in his lawyer s office
The plaintiff has not examined his counsel SR Wadhera nor is there any affidavit by Wadhera
From the material on record it is amply clear that the appointed scheduled time and place for inspection of the defendant s account books was 630 pm at his lawyer s office
The plaintiff was afforded another opportunity of inspection of the account books on 9 March 1967 at the office of the defendant s lawyer from 70 pm to 90 pm
In the circumstances the trial court was not justified in holding that there WAS any non compliance of its order under order XI rule 182
It is common ground that the account books for the years 195960 and 1960 61 were Lying in court
The suit transactions are of the year 1959
Nothing prevented the plaintiff from inspecting these books
As regards the account books for the years 1961 62 to 1964 65 they were required to be produced before the Income Tax Authorities at Yamunanagar on 20 March 1967 and on subsequent dates
It is not clear what relevance these books could have to the controversy between the parties unless the plaintiff wanted to find some entries to show that there was carry forward of the entries relating to the suit transaction in the account books for the years 1959 60 to the subsequent years So as to bring his claim within time
Apparently there were no such entries in the account books for the years 1959 60 66 and 1960 61
As regards the bank pass book of the defendant s account with the Punjab National Bank Ltd for the period 1 April 1962 to 31 March 1963 and 1 April 1963 to 31 March 1964 and the counterfoil of cheque No 01194 dated 7 March 1963 alleged to be drawn by the defendant in plaintiff s favour the defendant has sworn an affidavit that he had no account with Punjab National Bank Ltd Yamunanagar during that period nor he had issued any such cheque as alleged
In view of this the order of the trial court dated 23 May 1967 striking out the defence of the defendant was wholly unjustified 
The principle governing the court s exercise of its discretion under Order XI rule 21 as already stated is that it is only when the default is wilful and as a last resort that the court should dismiss the suit or strike out the defence when the party is guilty of such contumacious conduct or there is a wilful attempt to disregard the order of the court that the trial of the suit is arrested
Applying this test it is quite clear that there was no wilful default on the part of the defendant of the courts order under order XI rule 182 for the production of documents for inspection and consequently the order passed by the trial court on 23 May 1967 striking out the defence of the defendant must be vacated and the trial must proceed afresh from the stage where the defendant was not permitted to participate
It was further contended that the High Court was in error in observing that in view of the clear language of order X rule 21  the defendant has no right to cross examine the plaintiff s witness
A persual of order XI rule 1 shows that where a defence is to be struck off in the circumstances mentioned therein the order would be that the defendant be placed in the same position as if he has not defended 
This indicates that once the defence is struck of under Order XI rule 21 the position would be as if the defendant had not defendant and accordingly the suit would proceed ex parte
In Sangram Singh vs Election Tribunall it was held that if the court proceeds ex parte against the defendant under order IX rule 6a the defendant is still entitled to cross examine the witnesses examined by the plaintiff
If the plaintiff makes out a prima facie case the court may pass a decree for the plaintiff
If the plaintiff fails to make out a prima facie case the court may dismiss the plaintiff s suit
Every Judge in dealing with an ex parte case has to take care that the plaintiff s case is at least prima facie proved
But as we set aside the order under order XI rule 21 this contention does not survive for our consideration
We therefore refrain from expressing any opinion on the question
1  67 For the reasons given the order passed by the trial court dated A 23 May 1967 striking out the defence of the defendant under order XI rule read with section 151 of the CPC and its subsequent order dated 21 July 1967 are both set aside and it is directed to proceed with the trial according to law
There shall be no order as to costs
SR Appeal allowed


Summary:
The plaintiff respondent claiming to be an assignee of a debt under a deed dated 27th April 1965 filed a suit against the defendant appellant for recovery of a certain sum alleged to be due to M s Chitra Multipurpose Cooperative Society the assignor
On an interlocutory application moved by the respondent under order XI rules 14 and 18 CPC for the production of certain documents despite the objection by the appellant the Trial Court directed their production
The appellant produced all the documents in his possession on 7 2 67 but he was permitted to take back The account books as they were required to Be produced before the Income Tax officer on that day with the direction that he should produce them on 23 2 67
On 23 2 67 when the appellant appeared in the Court with his books the trial judge directed him to produce them on 16 3 67 and in the meanwhile allow their inspection to the respondent with three days  notice
The appellant accordingly sent a letter dt
25 2 67 asking the respondent to take inspection of the account books on 27 2 67 at 6 pm in the office d his Counsel
On his failure to do so the appellant sent once again a registered letter dt
1 3 1967 asking the respondent to inspect the records on 9 3 67 in his lawyer s office between 7 pm and 9 pm
The respondent never sent any reply to the notice
Nor did he avail of the opportunity of inspecting the account books at the office of the appellant s lawyer on 9 3 67
On 16 3 67 the Trial Court passed an order saying that the appellant should produce the books within four days in the Court to enable the respondent s counsel to inspect them before 29 3 67 ie the date fixed for evidence
After the examination of three witnesses of the respondent the trial Court asked the respondent s Counsel to apply under order XI rule 21 to strike out the defence of the appellant
On 31 3 67 the respondent filed an application accordingly which was vehemently opposed by the appellant
The appellant also moved both the District Court and the High Court for transfer of the suit to some other Court of competent jurisdiction
The High Court declined to interfere
Thereupon the trial Court passed an order on 23 5 67 striking out the defence of the appellant and on 21 6 67 refused permission to the appellant s counsel to cross examine the respondent s witnesses
The revision filed by the appellant in the High Court was rejected on 14 8 1968
Allowing the appeal by special leave the Court  HELD 1
The penalty imposed by order XI rule 21 is of a highly penal nature and ought only to be used in extreme cases and should in no way be imposed unless there is a clear failure to comply with the obligations laid 5 520SCI78 58 down therein
The stringent provisions of order XI rule 21 should be applied only in extreme eases where there is contumacy on the part of the defendant or a wilful attempt to disregard the order of the Court is established
62E 63E 2
The test laid down is whether the default is wilful
In the case of the plaintiff it entails in the dismissal of the suit and therefore an order of dismissal ought not to be made under order XI rule 21 unless the Court is satisfied that the plaintiff was wilfully withholding the documents which the defendant sought to discover
In such an event the plaintiff must take the consequence of having his claim dismissed due to his default ie by suppression of information which he was bound to give
In the case of defendant he is visited with the penalty that his defence is liable to be struck out and to be placed in the same position as if he had not defended the suit
63 B D 3
The power for dismissal of a suit or striking out of the defence under order XI rule 21 should be exercised only where the defaulting party fails to attend the hearing or is guilty of prolonged or inordinate and inexcusable delay which any cause substantial or serious prejudice to the opposite party
The rule must be worked with caution and may be made use of as a last resort
63DE Denvillier vs Myers  Banshi Singh vs Palit Singh 7 CIJ 295 Haigh  Twycroft vs Grant  Reg vs Senior 18891 QBD 283 quoted with approval
Khajah
Assenoolla Joo vs Khajah Abdool Aziz ILR and Allahabad Bank Ltd vs Ganpat Rai TLR  approved
It is travesty of justice that the trial Court should have in the facts and circumstances of the case passed an order striking out the defence of the defendant under order XI rule 21 and that the High Court should have declined to set it aside
62D E 5
Applying the principle governing the Court s exercise of its discretion under order XI rule 21 in the instant case there was no wilful default on the part of the defendant of the Court s order under Order XI rule 182 for the production of documents for inspection and consequently the order passed by the trial court on 23 May 1967 striking out the defence of the defendant must be vacated and the trial must proceed afresh from the stage where the defendant was not permitted to participate
66C E 6
A perusal of order XI rule 21 shows that where a defence is to be struck off in the circumstances mentioned therein the order would be that the defendant be placed in the same position as if the has not defended 
This indicates that once the defence is struck off under order XI rule 21 the position would be as if the defendant had not defended and accordingly the suit would proceeds ex parte
If the Court proceeds ex parte against the defendant under order IX rule 6a the defendant is still entitled to cross examine the witnesses examined by the plaintiff
If the plaintiff makes out a prima facie ease the court unable pass a decree for the plaintiff
If the plaintiff fails to make out a prima facie case the Court may dismiss the plaintiff s suit
Every Judge in dealing with an ex parte case has to take care that the plaintiff s case is at least prima facie proved
66E G Santram Singh vs Election Tribunal  referred to