Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ I.A. No. 895/2013 in CS (OS) 1804/2008
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% Reserved on: 29 August, 2013
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Decided on: 12 September, 2013
SH. SHRAVAN KUMAR GUPTA ..... Plaintiff
Through: Mr. Abhay Mani Tripathi, Advocate.
versus
SH. TARA CHAND GUPTA & ORS ..... Defendants
Through: Mr. Shiv Charan Garg, Mr. Shashank
Mittal and Mr. Imran Khan,
Advocates for Defendant Nos. 1 (a), 2
and 3.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
I.A. No. 895/2013 (by Defendant Nos. 1 to 3 u/Order XI Rule 21 CPC)
1. By this application under Order XI Rule 21 CPC the Defendants seek
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dismissal of the suit due to non-compliance of order dated 18 September,
2012 passed by the learned Joint Registrar directing the Plaintiff to reply the
interrogatories.
2. Learned counsel for the Defendant Nos. 1 (a), 2 and 3 contends that
the Defendants/applicants sent a notice for interrogatories vide letter dated
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19 September, 2012 by Registered Post through their counsel which was
duly served on the Plaintiff, however no reply to the said interrogatories
I.A. No. 895/2013 in CS (OS) 1804/2008 Page 1 of 9
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were received within the stipulated period as warranted vide order dated 18
September, 2012. Since the Plaintiff has intentionally not complied with the
direction issued by this Court, the suit is liable to be dismissed. It is further
contended that under Order XI Rule 4 CPC interrogatories are required to be
sent in Form-2 in Appendix–C with such variations as circumstances may
require. A perusal of Appendix-C Form-2 shows that the only requirements
are that the title of the suit has to be given followed by the request for
interrogatories and the interrogatories. It is contended that vide the notice
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dated 19 September, 2012 learned counsel for the Defendants/applicants
clearly mentioned the details of the suit and the order required to be
complied with. The interrogatories sought to be replied were also recited.
Hence necessary compliance under Order XI Rule 4 CPC was made and the
only ground taken by the Plaintiff that the interrogatories were not in proper
format is liable to be rejected. Reliance is placed on Maria Margarida
Sequeira Fernandes and others vs. Erasmo Jack De Sequeira (Dead)
through LRs, 2012 (5) SCC 370 to rely on the directions of the Hon’ble
Supreme Court that the judicial officers and judges should adhere to Section
30 CPC in ascertaining the truth and the lawyers must ensure that the truth
triumphs in the administration of justice.
I.A. No. 895/2013 in CS (OS) 1804/2008 Page 2 of 9
3. Learned counsel for the Plaintiff on the other hand contends that the
notice issued by the learned counsel for the Defendants/applicants was not in
the form prescribed under Order XI Rule 4 and thus the Plaintiff was not
obliged to reply the same. Reliance is placed on Emperor vs. Khwaja Nazir
Ahmad, AIR 32 (1945) PC 18 to contend that if an act is required to be done
in a particular manner as per the statute then it has to be done in the same
manner. Reliance is also placed on Bhikraj Jaipuria vs. Union of India, AIR
1962 SC 113 (Constitution Bench); Babbar Sewing Machine Company vs.
Trilok Nath Mahajan, 1978 (4) SCC 188; Atma Ram Properties (P) Ltd. vs.
Escorts Ltd., 2012 (188) DLT 126 and Shambhu Dutt Dogra vs. Shakti
Dogra and others, 2012 (192) DLT 539 to contend that where a statute
prescribe the manner in which the act is to be performed but does not set out
the consequence of non-compliance, the question whether the provision is
mandatory or directory has to be adjudged in the light of intention of the
legislature as disclosed by the object, purpose and scope of the statute. If the
statute is mandatory, the thing done not in the manner or form prescribed can
have no effect or validity; if it is directory, penalty may be incurred for non-
compliance, but the act or thing done is regarded as good.
4. I have heard learned counsel for the parties.
I.A. No. 895/2013 in CS (OS) 1804/2008 Page 3 of 9
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5. The present application arises from the order dated 18 September,
2012 whereby application being I.A. No. 12359/2010 under Order XI Rule 2
and 14 CPC filed by the applicants/ defendant Nos. 1 (a), 2 & 3 was allowed
and the applicants were permitted to serve the interrogatories on the Plaintiff
in proforma under Order XI Rule 4 CPC within one week vide order dated
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18 September, 2012. Pursuant thereto the learned counsel for the
Defendant/applicants sent the following letter to the Plaintiff:
“By hand/Post
Dated- 19.09.2012
To
Shri Shravan Gupta
S/o Late Shri Tara Chand Gupta
R/o House No. D-163, Second Floor,
Kamla Nagar, Delhi-110007.
NOTICE UNDER ORDER XI RULE 4, OF THE CODE OF
CIVIL PROCEDURE, 1908 FOR GIVING REPLY TO
INTERROGATIONS AND PRODUCTION OF
DOCUMENTS.
Sir,
Under instructions from and on behalf of my
clients (i) Smt. Prasann Devi w/o Late Shri Tara Chand
Gupta, (ii) Shri Satish Kumar Gupta S/o Late Shri Tara
Chand Gupta (iii) Smt. Bimla Gupta W/o Shri Satish
Kumar Gupta. All are residents of House No. D-163,
Kamla Nagar, Delhi-110007, I hereby send you said
notice for giving reply to interrogations as per order
dated 18.09.2012, passed by Shri Girish Kathpalia, Joint
Registrar, High Court of Delhi at New Delhi in CS (OS)
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No. 1804/2008 titled as Sharvan Kr. Gupta V/s Tara
Chand Gupta & Anr. D.O.H. 16.1.2012.
1. That you give a reply to the following interrogatory.
(i) Please give me information of exact location,
particulars of house and agricultural land which were
owned by Late Shri Kishore Lal and Munshi Ram
through their father at village Bage, Tahshil Hammur,
District Sonipat Haryana,
(ii) Please give the exact details of sale of said
property i.e. sale deed registration number, date of
execution of sale deed etc.
You give a reply to these interrogatory as per directions
of the Hon’ble Court, notice accordingly.
Sd/-
IMRAN KHAN (ADV)
638, W.W. TIS HAZARI
DELHI-110054”
6. However, the Plaintiff failed to respond resulting in filing of the
present application. Form-2 in Appendix-C which is required for serving the
interrogatories under Order XI Rule 4 CPC is as under:
No. 2
INTERROGATORIES
(O. XI, R. 4)
(Title as in No. 1, supra )
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Interrogatories on behalf of the above-named [ Plaintiff or
defendant C.D. ] for the examination of the above-named
[ defendants E.F. and G.H. or plaintiff ].
1. Did not, etc .
2. Has not, etc. etc. etc. etc.
[ The defendant E.F. is required to answer the
interrogatories number…...... ]
[ The defendant G.H. is required to answer the
interrogatories number…...... ]”
7. Thus as per Form-2 the requirements are of informing the title of the
suit and the interrogatories to the Defendants. A perusal of the legal
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notice/letter dated 19 September, 2012 sent by the learned counsel for the
Defendants to the Plaintiff shows that the details of the suit, the parties
therein and the interrogatories required to be replied are clearly stated. Thus
the contention of the learned counsel for the Plaintiff that the interrogatories
were not issued in the prescribed form and therefore, he was not obliged to
answer the same is liable to be rejected. Learned counsel for the Plaintiff has
strenuously argued that the statute though prescribes the manner in which the
things are required to be done but does not set out the consequence of non-
compliance. Thus, the question whether the prescribed manner of the
provision is mandatory or directory has to be adjudicated in the light and
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intention of the legislation as disclosed by the object, purpose and scope of
the statue. No doubt the consequence of non-replying the interrogatories are
serious in nature to the extent that the suit can be dismissed, however, as
noted above, the Form or the manner prescribed by the Statue for seeking
reply of the interrogatories has been duly complied with by the Defendants.
8. However, it has to be examined whether the consequence of the failure
of the Plaintiff to answer the interrogatories should entail in dismissal of the
suit. In the present case, it cannot be said that the Plaintiff adopted an
obstinate attitude and willfully defaulted in answering the interrogatories.
The Plaintiff may have acted under the wrong advice on the presumption that
the interrogatories were not asked in the prescribed form. In Babbar Sewing
Machine Company (supra) it was held:
11. 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
21 and that the High Court should have declined to set it aside.
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 down in the rule.
12. Order XI, Rule 21 of the CPC 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,
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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.”
13. Section 136 of the CPC, 1882, corresponding to Order
XI, Rule 21 of the C.P.C. 1908, was based upon Order XXXI,
Rule 20, now replaced by Order XXIV, Rule 16 framed under
the Judicature Act. The practice of the English Courts is, and it
has always been, to make the order a conditional one, and to
grant a little further time for compliance. In practice this
provision is virtually obsolete.* (1)
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* (1) Halsbury’s Laws of England, 4 Ed., Vol. 13, p.32
14. Even assuming that in certain circumstances the
provisions of Order XI, 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 XI, 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, i.e. by suppression of
information which he was bound to give : Denvillier v. Myers.
(1883) WN 58 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.
15. It is well settled that the stringent provisions of Order XI,
Rule 21 should be applied only in extreme cases, where there is
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contumacy on the part of the defendant or a wilful attempt to
disregard the order of the court is established.
16. 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 C.P.C. 13th Ed. Vol. I, p. 581, Khajah
Assenoolla Joo v. Khajah Abdool Aziz I.L.R. 9 Cal. 923,
Banshi Singh v. Palit Singh 7 C.L.J. 295, Allahabad Bank Ltd.
v. Ganpat Rai I.L.R. 11 Lah. 209, Haigh v. Haigh L.R. (1886)
Ch.478 and Twycroft v. Grant 1875 W.N. 201.
9. In the light of the legal position I am of the considered view that
instead of dismissal of the suit as sought by the Defendant Nos. 1 (a), 2 and 3
by this application, the Plaintiff is entitled to one more opportunity to answer
the interrogatories. It is, therefore, directed that the Plaintiff will now
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answer the interrogatories sought by the Defendants vide letter dated 19
September, 2012 within eight weeks failing which the suit of the Plaintiff
would be liable to be dismissed.
10. Application is disposed of accordingly.
(MUKTA GUPTA)
JUDGE
SEPTEMBER 12, 2013
‘vn’
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