1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CIVIL REVISION APPLICATION NO.53 OF 2010. ( Shantaram Kawadu Rajurkar @ Chandekar and ors. ..vs.. Narayan Sitaram Chandekar and ors.) ......................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ......................................................................................................................................................... Mr.A.Shelat Adv. for the applicant. Mr.Rohit Joshi, Adv. for resp.3 and 4. CORAM : R. K.DESHPANDE, J. DATED : 19th OCTOBER, 2010. 1. This Civil revision application challenges the order dated 14/6/2010 passed by the learned 10th Civil Judge (Jr.Dn.), Chandrapur, rejecting application (Exh.173) filed by the plaintiff for striking out the defence of defendant no.1-A and defendant nos.2 to 6 in Reg.Civil Suit No.145 of 1992. 2. By an order dated 19th of August, 2003, passed below Exh.164 in Reg.Civil Suit No.145 of 1992, the learned 3rd Jt.Civil Judge (JD), Chandrapur permitted the defendant to carry out minor repairs to the suit house, provided the basic structure of the house should not be changed. The plaintiff filed an application Exh.173 under Order 39 Rule 11 of C.P.C. for striking out the defence, on the ground that while carrying out 2 the minor repairs the basic structure of the house has been changed. This application has been rejected by the Trial Court by impugned order. 3. The Trial Court has recorded the finding that by demolishing mud wall, pakka walls in brick masonry in cement mortar are constructed and it has resulted into change in basic structure. However, it was further held that it is quite possible that carrying out minor repairs was not possible without demolishing the old mud wall, which was in dilapidated condition. The application has been rejected on the ground that there was no deliberate act or any intention to disobey or commit breach of the order passed by the court on 19/8/2003. Hence, the application has been rejected. 4. Shri Shelat, learned counsel appearing for the applicant, points out that the Trial Court while recording the finding that there was change in the basic structure, has committed an error in rejecting the application on the ground that there was no intention on the part of the defendant in carrying out the repairs in the basic structure. 5. Learned counsel for the respondent has relied upon the decision of the Division Bench of this court reported in 2004(2) Mh.L.J. 1 (Ramavatar Surajmal Modi ..vs.. Mulchand Surajmal Modi) to urge that unless the court finds 3 that there is willful default, the application should not be rejected as it results in causing substantial or serious prejudice to the opposite party. The relevant portion of the judgment is contained in para no.8 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 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 a 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 no hesitation in holding that for the selfsame reasons sub-rule (1) of Rule 11 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 4 the Court in passing the 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.” 6. After going through the order passed by the Trial Court, it is apparent that the court has recorded the finding that there was no intention on the part of the respondent. This is the relevant consideration under the provisions of Order 39 Rule 11 of C.P.C., as has been held by the Division Bench of this court in the judgment cited supra. In view of this, I do not find any jurisdictional error committed by the Trial Court in recording the said finding. 5 7. In the result, there is no substance in the revision. The same is, therefore, dismissed. JUDGE pzc