1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2204 OF 2009 IN SUIT NO.960 OF 2006 Shailaja Arvind Dabholkar & Anr. ...Plaintiffs Vs. Bhagirathibai Chandrasekhar Kale & Ors. ...Defendants Mr.A.C. Mahimkar for Plaintiffs Mr. Omprakash Panday i/b. Panday & Co., for Defendants 1&2 CORAM : SMT.ROSHAN DALVI, J. DATED : 18TH July 2009 P.C. : 1.Defendants 1 and 2 have taken out this Notice of Motion for dismissal of the suit under Order 39 Rule 11 of the C.P.C upon the case of contravention of the order dated 28th July, 2006 by the Plaintiffs and defying the said order and committing default in respect of it. 2.The order dated 28th July, 2008 allows the Plaintiffs Chamber Summons No.858 of 2008 in terms of prayers (a) and (b) thereon. Under that Chamber Summons the Plaintiff No.1 had desired to transpose Plaintiff No.2 as Defendant No.4 since the two Plaintiffs in this partition suit were not 2 ad idem in respect of the reliefs claimed in the suit. The order dated 28th July, 2008 allowing Chamber Summons No.858 of 2008 was, therefore, merely an enabling order. The said order further provides that the order would not effect the right of Plaintiff No.2 in any manner even as a party Defendant. The Chamber Summons does not specify the time during which the amendment was to be carried out. 3.It is argued on behalf of Plaintiffs that under a High Court Rules the amendment is required to be carried out within 2 weeks of the order. The amendment was not carried out. 4.The Defendants contend that failure to carry out the amendment was a default and a defiance of the said order. The Plaintiffs, therefore, contravened the said order and breached it. Hence, the Defendants have applied for dismissal of the suit. 5. It has been the Plaintiffs case in a further Chamber Summons taken out by the Plaintiffs, which is now registered as Chamber Summons No.1038 of 2009, that the amendment could not be carried out because the papers were not in the department and the order was not ready. Consequently the 3 Plaintiff made a further application in August, 2008 by a praecipe for extension of time. The matter did not appear on board and the amendment remained to be carried out. The Plaintiff No.1 further contends that no prejudice can be caused to Plaintiff No.2 upon transposition. 6.The relief is claimed under Order 39 Rule 11 of the C.P.C. Order 39 Rule 11 of C.P.C runs thus:- 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 4 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. 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. - (1-10-1983) 7.This is a Bombay High Court amendment. Its purport and import must be first understood. Its purport is to punish the party which contravenes or defies the order of a Court or commits breach of an undertaking given to the Court. Upon such a contemptuous attitude, the party would not be required to be further heard in the suit and hence, upon an application taken out under Order 39 Rule 11 of the C.P.C the Court may dismiss the suit or strike out the defence as required. A reading of the Rule 11 shows that it applies to substantive orders of the Court like the orders of injunction, preventive or mandatory. Under such orders of injunction, the Court would order a 5 party to do or not to do a thing during the pendency of the suit or proceeding. The Court may accept the undertaking of the party to do or refrain from doing a thing. Hence, if the party defaulted in carrying out the order of the Court or contravened the order of the Court or breached the undertaking given by the party to the Court the severe consequence of punishing the party by putting an end to the litigation against such party would result. 8.Under Sub-rule 2 of Order 11, upon sufficient cause being shown or on further terms and conditions as deemed fit, such a suit or proceeding may be restored and the party in default of breach may be heard. 9.The order dated 28th July, 2008 is not an order of the Court ordering the Plaintiff No.1 to do or not to do anything. The order does not even accept the undertaking of Plaintiff No.1 to do or refrain from doing anything. It only allows Plaintiff No. 1 to carry out the amendments as denied by her. There is, therefore, no default of the Plaintiff or contravention of the order by a simplicitor failure to carry out amendments to the plaint which is to transpose Plaintiff No.2 as Defendant 6 No.4. Similarly there is no breach of any undertaking. 10.Besides upon the application of Plaintiff No.1 by way of the Chamber Summons, now registered as Chamber Summons No.1038 of 2008, the Plaintiff has sought to carry out the amendments upon extension of time being granted by the Court. 11.Extension of time is granted by the Court under various circumstances set out in Section 148 of C.P.C. Failure to carry out amendments, which is only a technical and casual failure, is invariably allowed by extension of time. Consequently such an order, which would be passed under such an application would fall within the umbrella of Sub Section 2 of Rule 11 of Order 39 of the C.P.C. The Court may extend the time upon considering the sufficient cause, if any, of the Plaintiff. In this case the cause shown by the Plaintiff is that the papers were not available and the order was not ready. The application is stated to have been made by a praecipe in August, 2008 which would be within a few weeks of the order dated 28th July, 2008. 12. The default, the breach or the failure of the 7 Plaintiff is, therefore, not contravention or defying the order or defaulting to carry out the order as would require visitation of the consequence as severe as the termination of the suit itself against Plaintiff No.1. 13.The Notice of Motion is entirely misconceived. It is dismissed with costs fixed at Rs.2000/-. (SMT.ROSHAN DALVI, J.)