1 IN THE HIGH COURT OF BOMBAY AT GOA APPEAL FROM ORDER NO. 113 OF 2007 AND CIVIL APPLICATION NO. 306 OF 2007 M/s. Ratnadeep Builders Represented by its sole proprietor Mr. Madhav Narayan Naik Kundaikar Businessman, residing at House No.295, Dassolwada, Kundai, Ponda-Goa. ... Appellant versus Shri Baburao Tukaram Mangale s/o Tukaram Mangale, married, major of age, service, r/o Shapur, Ponda-Goa. ... Respondent Mr. J. Godinho, Advocate for the Appellant. Mr. V. Menezes, Advocate for the Respondent. CORAM : N. A. BRITTO, J. DATE : 22ND FEBRUARY, 2008. ORAL JUDGMENT Admit. By consent heard forthwith. 2. This appeal is directed against Order dated 25-10-2007 of the 2 learned Civil Judge, Senior Division at Ponda by which the defence of the Appellant(hereinafter referred to as Defendant) has been struck out in the light of the provision of Rule 11, Order 39, C.P.C. which reads as follows:- “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”. 3. There is no dispute now that the provision of the aforesaid Rule has been held to be directory by the Division Bench of this Court in Ramavatar S. Modi v. Mulchand S. Modi(2004(2) MLJ 1). The Judgment relied upon by the trial Court in the case of Smt. Asha Madhusudan Joshi v. Ashok H. Bhide(2003(1) ALL MR 1035) has been held not to be laying down a correct proposition of law. 3 4. There is also no dispute at present that by virtue of Ad-interim Order dated 9-3-1994 the Defendant was restrained from transferring the possession of the suit flat and yet the Defendant disobeyed the said order and upon an application filed by the Plaintiff under Order 39, Rule 2-A the trial Court by Order dated 30-12-2000 held that the Defendant had violated the order of that Court. The Order dated 30-12-2000 had directed the Defendant No.1 to recover the possession of the flat from the said Mahabaleshwar Phadte within a period of sixty days. The said order has attained finality in that, it was not challenged by the Defendant at any time. Thereafter, the Plaintiff filed an application dated 15-3-2001 which was disposed of by Order dated 19-8-2002. By this Order, the Court had directed the Defendant to ask Mahabaleshwar Phadte to vacate the suit flat and give vacant possession of the same to the bailiff of the Court who was thereafter required to attach the suit flat and lock and seal the same by keeping one key with the Defendant and the duplicate with the Nazir of the Court till the suit was finally decided on merits. 5. Ultimately, the suit flat came to be attached pursuant to an application filed by the Plaintiff under Section 151 on 19-8-2002. 6. Learned Counsel on behalf of the Defendant submits that as the suit flat was in possession of the Defendant, the Defendant was unable to comply the Orders dated 30-12-2000 and 19-8-2002. He further submits that he had issued a letter to the Defendant dated 28-2-2001 but the said Mahabaleshwar Phadte did 4 not comply with the same. Learned Counsel therefore submits that there was no wilful default on the part of the Defendant in not complying with the said Order dated 30-12-2000 and in support of the same learned Counsel has placed reliance on a Judgment of this Court in Shaikh Samsul Hudda and others v. M/s. Khayber Properties and Investment Pvt. Ltd. (2003(2) ALL MR 495) wherein it is stated that the default in terms of Rule 11, Order 39, C.P.C. has to be a deliberate or intentional action or inaction on the part of the Plaintiff. Above all, it must be a case, to the satisfaction of the Court, fit and appropriate to invoke the powers of the said Rule. It is also stated that before imposing the penalty under Rule 11 of Order 39 of the Code, it is necessary for the Court to arrive at the finding about default and/or non compliance of the order of the Court by the party, and such default either being deliberate, intentional or wilful. 7. As can be seen from Order dated 30-12-2000 the Defendant was required to recover the possession of the flat from Mahabaleshwar Phadte within a period of sixty days. All that the Defendant did was to write a letter dated 28-2-2001 just two days before the expiry of the period, to the said Mahabaleshwar Phadte. A bare perusal of the said letter shows that it was written half heartedly. The Defendant did not even require the said Mahabaleshwar Phadte to hand over the possession of the flat to him, as directed by the Court. In case it was not possible for the Defendant for any reason to obtain the possession of the said flat from the said Mahabaleshwar Phadte there is no reason why he 5 could not seek the assistance of the Court to obtain the possession of the flat, as was done by the Plaintiff, by his application dated 15-3-2001, but on the contrary the Defendant opposed the application filed by the Plaintiff. It is therefore obvious that the Defendant not only breached the first Order dated 9-3-1994 but ensured that the second Order dated 30-12-2000 was also not complied with. No doubt the provisions of Sub-Rule(1) of Rule 11 of Order 39 are directory in nature. Looking at the conduct of the Defendant in disobeying the first order, inaction in not complying with the second order and on the contrary opposing its non compliance, shows that there was persistent default in non compliance of the orders and therefore the striking of the defence by Order dated 25-10-2007 could not be faulted. 8. There is no merit in this appeal. Consequently, the same is hereby dismissed with costs. N. A. BRITTO, J. RD