1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.799 OF 2009 ALONGWITH CIVIL APPLICATION NO.1116 OF 2009 Hanumanta Genba Sutar & Anr. ...Appellants V/s. Babu Bala Chavan, Decd., Thru’ Shobha Babu Chavan & Ors. ...Respondents Mr. Vijay Patil for the Appellants. Mr. K.K. Singhavi, Sr. Advocate, i/b. Mr. S.S. Patwardhan for the Respondents. CORAM : SMT. NISHITA MHATRE, J. RESERVED ON : 23 RD FEBRUARY, 2010. PRONOUNCED ON : 1 ST APRIL, 2010. JUDGMENT : 1. The present Appeal from Order has been preferred against the order passed by the Civil Judge, Senior Division, Pune in Special Civil Suit No.895 of 1988. By this order, the trial Court has allowed the application filed by Defendant No.1(b) and dismissed 2 the Suit under Order 39 Rule 11(1) of the Code of Civil Procedure (for short “the CPC”). 2. The Suit was filed by the appellants-plaintiffs in the year 1988 for execution and registration of the Sale Deed in favour of Appellant No.1. The Defendant No.3 had agreed to sell the suit land to Appellant No. 1 and Respondent No.3 herein for a sum of Rs.40 lacs and on this basis they had filed the present Suit. 3. On 15th June, 1989, an order was passed granting interim injunction till the application for interim relief at Exhibit-5 was decided. It appears that Defendant Nos.1 and 2 submitted an application on 8th November, 1989 contending that they did not want to contest the application at Exhibit-5. An application was later filed at Exhibit-30 by Respondent Nos.4 to 7 herein and the predecessor of Respondent Nos.8(a) to 8(f) contending that they had purchased the suit lands from the original Defendant Nos.1 and 2 by a registered Agreement of Sale and, therefore, they were necessary parties. That application was allowed by the 3 trial Court on 24th April, 1991. The trial Court directed the Plaintiffs to amend the plaint by impleading the Applicants as Defendant Nos.4 to 8. The amendment was directed to be carried out on or before 5th June, 1991. 4. After seven years, the Appellant No.1 realized that the amendment had not been carried out, within the time stipulated by the trial Court. The Appellant No.1, therefore, preferred an application at Exhibit-40 on 19th November, 1998 for extension of time to carry out the amendment. That application was rejected on 27th November, 1998 on the ground that the plaintiff was indolent. Being aggrieved by the order passed by the trial Court, Civil Revision Application No.177 of 1999 was filed by the Appellant No.1 before this Court. The Civil Revision Application was dismissed by this Court by passing the following order: “This civil revision application has been filed on behalf of the petitioner challenging the order 4 dated 27.1.1999 by which the application made by the petitioner to implead the defendants as intervenors has been rejected. So far as this revision application is concerned, the same cannot be entertained at this stage as the order that was passed for impleading the intervenors was dated 24th April, 1991. They waited till November, 1998. The petitioner made no effort whatsoever to join the intervenors as party defendants to the suit. This lapse on the part of the petitioner cannot be tolerated nor exonerated nor can the same be allowed on compensatory costs. Hence so far as this civil revision application is concerned, the same stands rejected.” 5. Thus, the question of extending the stipulated time for amending the plaint pursuant to the order passed by the trial Court on 24th April, 1991 was a closed chapter. The Suit had to proceed on the basis of the unamended plaint. The Respondent Nos.4 to 8 were not added as party Defendants to the plaint. 6. An application was filed by Appellant No.2 to join him as a co-Plaintiff under Order 22 Rule 10 of the CPC. That application was allowed by the trial Court on 30th July, 1999. The Appellants then filed an 5 application on 24th April, 2008, for striking out the defence of the Defendants under Order 39 Rule 11 of the CPC. The Appellants claimed that the Defendants had, intentionally and fraudulently, flouted the order passed by the trial Court on 15th June, 1989. That application was allowed and the defence of Defendant Nos.1 and 2 was struck of. 7. On 16th August, 2008, Respondent Nos.4 to 7 filed an application at Exhibit-158 for a direction to the Plaintiffs to comply with the orders passed below Exhibit-30, i.e. the order directing the Plaintiffs to amend the plaint. Significantly, Exhibit-30 had been filed by them earlier. However, the application was rejected as the trial Court was of the view that a third party could not file such an application. The application was rejected on 18th September, 2008. 8. An application at Exhibit-163 was filed on 8th September, 2006 by Defendant No.1(b) under Order 39 Rule 11 of the CPC for dismissal of the Suit. This application was opposed by the Plaintiffs. The 6 application was allowed by the trial Court on 17th October, 2008 and the Suit was dismissed under the provisions of Order 39 Rule 11(1) of the CPC, as the Plaintiffs had not complied with the order directing them to implead Respondent Nos.4 to 7 as party Defendants for over 17 years. A Writ Petition was preferred by the Appellants before this Court on 8th December, 2008, being Writ Petition No.1220 of 2009. Since the remedy of an Appeal from Order was available to the Appellants, the Writ Petition was permitted to be converted to the present Appeal from Order. 9. The main contention of Mr. Patil appearing for the Appellants was that the order passed under Exhibit-163 dismissing the Suit under Order 39 Rule 11 of the CPC is a drastic order and absolutely uncalled for in the circumstances of the present case. The learned Counsel submitted that it is now well settled in view of the several judgments of this Court that recourse to the provision of Order 39 Rule 11 of the CPC should be taken as a last resort. He submitted that it is not necessary that for every default, the 7 trial Court should exercise its powers under Order 39 Rule 11 of the CPC. According to the learned Advocate these provisions can be invoked only if there is a breach of an order passed under Order 39 itself. He submitted that the scheme of Order 39 leaves no manner of doubt that the orders which are envisaged under Rule 11 of Order 39 are those which are passed under the other Rules of Order 39, especially under Rules 1 and 2. He then urged that no prejudice would be caused to the Respondents if the appellants are permitted to carry out the amendment. According to the learned Counsel, it is only the ministerial act of physically carrying out the amendment, which has remained to be performed. The learned Counsel pointed out that the trial Court has already permitted the amendment and, therefore, it ought not to have dismissed the Suit. He then submitted that a party can be visited with the drastic consequences of an order under Order 39 Rule 11 of the CPC only when the breach of an order is deliberate or contumacious. The learned Counsel urged that the Appellants had not carried out the amendment 8 only through oversight and there was no deliberate or contumacious attempt on the part of the Appellants to defeat any order of the Court. He, therefore, submitted that the Suit be restored to file. 10. Mr. Singhvi, the learned Counsel for Respondent No.1(b), pointed out that the Appellants had been absolutely negligent in conducting the matter. He submitted that after 17 years, the trial Court had considered it unnecessary to continue the Suit when its orders had been flouted by the Appellants. He submitted that the trial Court has exercised the discretion available to it under Order 39 Rule 11 of the CPC and, therefore, there was no need for this Court to interfere in the matter. According to Mr. Singhvi, the submission on behalf of the Appellants that the provisions of order 39 Rule 11 of the CPC can be invoked only if there is a breach of any order passed under Order 39, does violence to the provisions. He pointed out that the Rule does not restrict its operation to orders passed only under Order 39 of the CPC. He relied on the judgment of the 9 Division Bench of this Court in the case of Appeal No. 274 of 1979 and other connected Appeals decided on 22nd/23rd/24th/25th and 29th July, 1980. The learned Counsel also relied on the judgment of the Supreme Court in the case of The Corporation of Calcutta and Anr. v/s. Liberty Cinema, reported in AIR 1965 SC 1107. The learned Counsel then submitted that there are several judgments of this Court where the defence has been struck of under Order 39 Rule 11 of the CPC because orders passed under various provisions of the CPC had not been complied. He therefore submitted that the provisions of Rule 11 need not be confined to those orders which are passed under Order 39 of the CPC. 11. In order to appreciate the submissions of Counsel, it would be advantageous to set out the provisions of Order 39 Rule 11 of the CPC, which read as under :- 10 “11. Procedure on parties defying orders of Court, and committing breach of undertaking to the Court.- (1) Where the Court orders any party to a suit or proceeding to do or not to do a thing during the pendency of the suit or proceeding, or where any party to a suit or proceeding gives any undertaking to the Court to do or to refrain from doing a thing during the pendency of the suit or proceeding, and such party commits any default in respect of or contravenes such order or commits a breach of such undertaking, the Court may dismiss the suit or proceeding, if the default or contravention or breach is committed by the plaintiff or the applicant, or strike out the defences, if the default or contravention or breach is committed by the defendant or the opponent. (2) The Court may, on sufficient cause being shown and on such terms and conditions as it may deem fit to impose, restore the suit or proceeding or may hear the party in defence, as the case may be, if the party that has been responsible for the default or contravention or breach as aforesaid makes amends for the default or contravention or breach to the satisfaction of the Court; 11 Provided that before passing any order under this sub-rule notice shall be given to the parties likely to be affected by the order to be passed.” 12. Considering the aforesaid provision and the facts and circumstances obtaining in this case, in my opinion, the impugned order need not be set aside. The Appellant No.1 was directed to amend the plaint by an order passed on 24th April, 1991. The amendment was to be carried out within two weeks i.e. by 5th June, 1991. The Appellant No.1 failed to do so. He realized only after seven years that the amendment had not been carried out and, therefore, sought extension of time to do so. That was refused by the trial Court. The High Court confirmed the order, observing that the lapse on the part of the petitioner, i.e. the Appellant No.1, could not be tolerated, nor exonerated, nor could it be allowed with compensatory costs. Once this application had been rejected, in my opinion, the trial Court has passed the impugned order as a natural corollary after the order of this Court in the Civil Revision Application. The trial 12 Court had refused permission to extend the time to carry out the amendment in 1998. The High Court had confirmed the order. Therefore, even assuming that Mr. Patil’s submission that only the ministerial act of amending the plaint was incomplete is correct, the Appellants were not entitled to a reprieve. Moreover had the suit proceeded, it would have certainly prejudicially affected the rights of those parties who were to be added as Defendants in the array of parties before the trial Court. The Appellant No.1 did not care to amend the plaint even after he sought liberty to add Appellant No.2 as a co-Plaintiff. Therefore, in my view, the trial Court has not exceeded the jurisdiction vested in it by law while dismissing the Suit under Order 39 Rule 11 of the CPC. 13. It is true that the consequences of an order passed under Order 39 Rule 11 of the CPC are drastic, as observed in the case of Zilla Parishad, Aurangabad & Anr. v/s. Punarjanma Rewinders & Electricals, reported in 2006 (6) Mh.L.J. 661. Therefore, the power must be used sparingly. However, the Division Bench of 13 this Court in the case of Ramavatar Surajmal Modi v/s. Mulchand Surajmal Modi, reported in 2004 (Supp.2) Bom.C.R. 298, has observed in paragraph 7 as follows :- “7. Rule 11 of Order 39 as introduced by the Bombay amendment provides for a procedure on parties defying orders of the Court and/or committing breach of any undertaking to the Court. We are concerned with the question whether sub-rule (1) of Rule 11. Order 39 leaves no discretion on the Court and that it obliges the Court to visit the defaulting party with the penalty prescribed therein irrespective of the circumstances that default is not willful or the conduct of the party responsible for the default is not contumacious or there is reasonable explanation for default. The meaning and intention of the rule making authority must govern, and these are to be ascertained not only from the phraseology of the provision but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other. Inter alia the courts have applied the test whether the object of the provision will be defeated or furthered by holding the provision mandatory or directory. Let us not forget that the dismissal of suit or proceeding or striking out the defence of a defendant for non- compliance of the Court’s order or 14 breach of an undertaking is serious and grave consequence. By making provision of serious penalty of dismissal of suit or striking out the defence against the party responsible for default, the rule making authority did not intend to leave no discretion to the Court. The object of the provision of Order 39, Rule 11(1) is not defeated if it is held to be directory as the Court can in its discretion for adequate reasons visit the defaulting party with the penalty envisaged therein. On the other hand if the provision is held mandatory, the Court “shall” be left with no discretion and peremptorily shall have to dismiss the suit where the plaintiff is responsible for the default or to strike off the defence when the defendant is guilty of default even though the default is not found willful or conduct of such party not obstinate or contumacious. In our considered view, the provision in sub-rule (1) merely vests power in the Court to dismiss the suit or proceeding where the default is by the plaintiff and strike off the defence of the defendant where the defaulter is the defendant. It does not obligate to do so in every case of default. This is further fortified by the provision contained in sub- rule (2) which gives a discretion to the Court that even after the order contemplated under the sub-rule (1) of Rule 11 has been passed, upon sufficient cause being shown by the party responsible for the default or contravention or breach and such party makes amend for the default or 15 contravention or breach to the satisfaction of the Court, the Court may restore the suit or hear the defence on such terms and conditions it deems fit. It the Court has power to restore the party to the same position even after the adverse order has been passed under sub-rule (1) of Rule 11 if the case is made out under sub-rule (2), the provision of sub- rule (1) has to be held to be directory and not imperative. The provision in the nature of sub-rule (2) leaves no manner of doubt the intention of the rule making authority that the provision of sub- rule (1) of Rule 11 is directory and that by such provision power has been vested in the Court to dismiss the suit or proceeding where the plaintiff is in default or striking off the defence of the defendant, where defendant is responsible for the default. Unfortunately, neither in Ratnakar D. Patade nor in Smt. Asha M. Joshi, the learned Judges adverted to sub-rule (2) of Rule 11 and its effect.” 14. The Court also observed further in paragraph 8 of the said judgment, which reads as under : “8. .......................... The consequence of dismissal of suit or striking out the defence in Order 11, Rule 21 is visited as the case may where the party fails to comply 16 with the order to answer interrogatories or for discovery or inspection of documents. Under Order 39, Rule 11(1) of the Code of Civil Procedure the consequence of dismissal of suit or striking out the defence follows where there is default in compliance of order of the Court or breach of an undertaking by the plaintiff or the defendant, as the case may be. The provision of Order 11, Rule 21 having been held to be directory in M/s. Babbar Sewing Machine Co. by the three Judge Bench of the Supreme Court, we have to hesitation in holding that for the selfsame reasons sub-rule (1) of Rule 1 of Order 39 of Code of Civil Procedure as introduced in Maharashtra by Bombay Amendment has to be held directory and the discretion exercisable by the Court in passing he order under sub-rule (1) of Rule 11 of Order 39 has to be in consonance and in conformity with the legal position laid down by the Supreme Court in M/s. Babbar Sewing Machine Co. In other words, the power of dismissal of suit or striking out the defence, as the case may be, under Order 39, Rule 11(1) of Code of Civil Procedure should be exercised for adequate reasons; where the defaulting party fails ultimately in complying with the order of the Court or the undertaking; where the default is willful and the conduct of the defaulting party contumacious and that results in causing substantial or serious prejudice to the opposite party.” 17 15. Order 39 Rule 11 Sub-Rule (2) of the CPC provides that the Court may, on sufficient cause being shown and on such terms and conditions as it may deem fit to impose, restore the Suit or proceeding or may hear the party in defence, as the case may be. The party that has been responsible for the default or contravention or breach as aforesaid must make amends for the default or contravention or breach to the satisfaction of the Court. This sub-section would come into operation only after the Suit is dismissed and a party applies for restoration of the Suit before the appropriate Court. In the present case, the order in question before me is one passed under Order 39 Rule 11 Sub-rule (1) of the CPC, which vests the power in the trial Court to dismiss the Suit, if a party contravenes an order of the Court. 15A. In my opinion, the trial Court has, after considering the provisions of law, exercised its discretionary jurisdiction and held that the Suit should be dismissed. As observed earlier, this would be a natural consequence to the refusal by the trial 18 Court as well as this Court to permit extension of time to add the third parties as party Defendants. Had the Suit been allowed to continue, it would have to be dismissed for non-joinder of necessary parties, as admittedly the original Defendants had sold the property to third parties. In my view, therefore, the trial Court has not committed any error by dismissing the Suit. 16. The contention of Mr. Patil that, the provisions of Order 39 Rule 11 of the CPC can be exercised only when there is a breach of any order passed under Order 39 of the CPC, is untenable. A bare perusal of the aforesaid provision of law would indicate that the violated orders which are envisaged are not restricted to those passed under that Order 39 but to any order passed by the Court or undertaking given by the parties. Mr. Singhavi relies on the decision in the case being Appeal No.274 of 1997 and other connected matters. The Division Bench of this Court has observed while interpreting Section 105-B of the Mumbai Municipal Corporation Act, that the words used in any 19 Section must be given their natural meaning. On reading Order 39 Rule 11 of the CPC, there is nothing to suggest that only those orders which are passed under Order 39 of the CPC would be governed by Rule 11. To accept the submission of Mr. Patil in this regard would be to do violence to the language of the provisions of Order 39 Rule 11 of the CPC. The legislative intent was not to curtail or restrict the ambit of this provision of law. Therefore, this submission of the learned Advocate is without merits. 17. In my opinion, therefore, the impugned order is not erroneous. It has been passed due to the consistent default of the Appellants over 17 years to have the plaint amended. The trial Court has also considered the fact that this Court had not set aside its earlier order refusing to extend the time for performing the clerical act of carrying out the amendment. 18. The Appeal from Order is dismissed. 20 19. In view of the above, Civil Application No.1116 of 2009 pending in the Appeal from Order does not survive and the same is dismissed as infructuous.