Full Judgment Text
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PETITIONER:
BABBAR SEWING MACHINE CO.
Vs.
RESPONDENT:
TRILOK NATH MAHAJAN
DATE OF JUDGMENT07/08/1978
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
SINGH, JASWANT
DESAI, D.A.
CITATION:
1978 AIR 1436 1979 SCR (1) 57
1978 SCC (4) 188
CITATOR INFO :
RF 1989 SC 162 (12)
ACT:
Defence in a suit, striking out of for non-compliance
With order for discovery Civil Procedure Code 1908, (Act V)
order XI rule 21 read With Section 151, Scope of-Right to
cross examine, whether lost.
HEADNOTE:
The plaintiff-respondent claiming to be an assignee of
a debt under a deed dated 27th April, 1965, filed a suit
against the defendant-appellant for recovery of a certain
sum alleged to be due to M /s Chitra Multipurpose
Cooperative Society, the assignor. On an interlocutory
application moved by the respondent under order XI rules 14
and 18 C.P.C. for the production of certain documents,
despite the objection by the appellant the Trial Court
directed their production. The appellant produced all the
documents in his possession on 7-2-67, but he was permitted
to take back The account books as they were required to Be
produced before the Income Tax officer on that day with the
direction that he should produce them on 23-2-67. On 23-2-
67, when the appellant appeared in the Court with his books
the trial judge directed him to produce them on 16-3-67 and
in the meanwhile allow their inspection to the respondent
with three days’ notice. The appellant accordingly sent a.
letter dt. 25-2-67 asking the respondent to take inspection
of the account books on 27-2-67 at 6 p.m. in the office d
his Counsel. On his failure to do so, the appellant sent
once again a registered letter dt. 1-3-1967 asking the
respondent to inspect the records on 9-3-67 in his lawyer’s
office between 7 p.m. and 9 p.m. The respondent never sent
any reply to the notice. Nor, did he avail of the
opportunity of inspecting the account books at the office of
the appellant’s lawyer on 9-3-67. On 16-3-67 the Trial Court
passed an order saying that the appellant should produce the
books within four days in the Court to enable the
respondent’s counsel to inspect them before 29-3-67 i.e. the
date fixed for evidence. After the examination of three
witnesses of the respondent, the trial Court asked the
respondent’s Counsel to apply under order XI rule 21 to
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strike out the defence of the appellant. On 31-3-67 the
respondent filed an application accordingly which was
vehemently opposed by the appellant. The appellant also
moved both the District Court and the High Court for
transfer of the suit to some other Court of competent
jurisdiction. The High Court declined to interfere.
Thereupon the trial Court passed an order on 23-5-67
striking out the defence of the appellant and on 21-6-67
refused permission to the appellant’s counsel to cross-
examine the respondent’s witnesses. The revision filed by
the appellant in the High Court was rejected on 14-8-1968.
Allowing the appeal by special leave, the Court
^
HELD: 1. 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 5-
520SCI/78
58
down therein. The stringent provisions of order XI, rule 21
should be applied only in extreme eases where there is
contumacy on the part of the defendant or a wilful attempt
to disregard the order of the Court is established. [62E,
63E]
2. The test laid down is whether the default is wilful.
In the case of the plaintiff, it entails in the dismissal of
the suit and, therefore, an order of dismissal ought not to
be made under order XI, rule 21, unless the Court is
satisfied that the plaintiff was wilfully withholding the
documents which the defendant 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. In the case of
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. [63 B-D]
3. 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 any cause substantial or serious prejudice to
the opposite party. The rule must be worked with caution and
may be made use of as a last resort. [63D,E]
Denvillier v. Myers, (1883) WN 58, Banshi Singh v.
Palit Singh, 7 C.I.J. 295, Haigh, L.R. (1886) Ch.D. 478,
Twycroft v. Grant, 1875 W.N. 201, Reg v. Senior, [1889](1)
QBD 283; quoted with approval.
Khajah. Assenoolla Joo v. Khajah Abdool Aziz, I.L.R. 9
Cal. 923 and Allahabad Bank Ltd. v. Ganpat Rai, T.L.R. 1
Lah. 209; approved.
4. It is 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. [62D-E]
5. Applying the principle governing the Court’s
exercise of its discretion under order XI, rule 21, in the
instant case, there was no wilful default on the part of the
defendant of the Court’s order under Order XI, rule 18(2)
for the production of documents for inspection, and
consequently, the order passed by the trial court on 23 May,
1967, striking out the defence of the defendant must be
vacated and the trial must proceed afresh from the stage
where the defendant was not permitted to participate. [66C-
E]
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6. A perusal of order XI, rule 21 shows that where a
defence is to be struck off in the circumstances mentioned
therein, the order would be that the defendant ’be placed in
the same position as if the has not defended’. This
indicates that once the defence is struck off under order
XI, rule 21, the position would be as if the defendant had
not defended and accordingly the suit would proceeds ex-
parte. If the Court proceeds ex-parte against the defendant
under order IX, rule 6(a), the defendant is still entitled
to cross-examine the witnesses examined by the plaintiff. If
the plaintiff makes out a prima facie ease the court unable
pass a decree for the plaintiff. If the plaintiff fails to
make out a prima facie case, the Court may dismiss the
plaintiff’s suit. Every Judge in dealing with an ex-parte
case has to take care that the plaintiff’s case is, at
least, prima facie proved. [66E-G]
Santram Singh v. Election Tribunal, [1955] (2) S.C.R. 1
referred to.
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2126 of
1968.
Appeal by Special Leave from the Judgment and order
dated 14-8-1968 of the Punjab and Haryana High Court in
Civil Revision No 430 of 1967
In person (C.K. Babbar) for the Appellant.
Harbans Singh for the Respondent.
The Judgment of the Court was delivered by
SEN, J.- This appeal by special leave in directed
against the order of the. Punjab and Haryana High Court
dated 14 August, 1968 upholding an order of the trial court
dated 23 May, 1967 striking out the defence of the defendant
under order XI, rule 21 read with section 151 of the Civil
Procedure Code, 1908 and directing that the defendant cannot
be permitted to cross-examine the plaintiff’s witnesses.
The suit out of which this appeal arises was brought by
the respondent Trilok Nath Mahajan, as plaintiff, against
the appellant-defendant M/s. Babbar Sewing Machine Co., on
9th March, 1966 for recovery of a certain sum alleged to be
due to M/s. Chitra Multipurpose Co-operative Society
(Jogyana) Ltd., Ludhiana which remained unpaid towards the
price of sewing machines sold on credit from time to time,
claiming to be an assignee under a deed dated 27 April,
1965. The transaction sued upon was of the year 1959, and
the suit was obviously barred by limitation. The plaintiff
however, pleaded that the defendant had acknowledged his
liability by his letter dated 8 March, 1963 for Forwarding
cheque No. 01194 dated 7 March, 1963 for Rs. 50 drawn on
the Punjab National Bank Ltd., Yamunanagar. The defendant
disputed the plaintiff’s claim and pleaded, inter-alia, that
he does not owe anything to the said society and as such the
suit was not maintainable, that there was no privity of
contract between the parties nor does any relationship of a
creditor and debtor exists between them. He further pleaded
that the suit was barred by limitation. He also pleaded that
the trial court had no jurisdiction to try the suit.
On 11 November, 1966, the plaintiff moved an
application under order XI, rules 14 and 18 for production
and inspection of the following documents:
(a) Cash book, day book and ledger for the year
1-4-1959 to 31-3-1960 and 1-4-1960 to 31-3-1961. H
(b) Cash book and ledger for the years 1-4-1961
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to 31-3-1966
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(c) All the original bills issued in favour of
the defendant by M/s. Chitra Multipurpose
Cooperative Society Jogyana Ltd., including Bill
No. 22 dated 13-5-1960, Bill No. 43 dated 2-8-
19607 Bill No. 49 dated 14-9-1960, Bill No. 53
dated 26-9-1960.
(d) Original letters written by the plaintiff to
the defendant and letters addressed by M/s. Chitra
Multipurpose Cooperative Society Jogyana Ltd., to
defendant.
(e) Counterfoils of cheque book in use on 7-3-
1963.
(f) The original cheque No. 01194 dated 7-3-1963.
(g) Bank pass book from 1-4-1962 to 31-3-1964
with counterfoils of the cheque books with which
the respondent (T.N. Mahajan) firm had an account.
Despite objection by the defendant, the trial court by
its order dated 11 January, 1967, directed their production
on 30 January, 1967 holding that they were relevant for the
determination of the controversy between the parties.
On 30 January, 1967, when the suit came up for hearing,
the court adjourned the suit to 7 February, 1967, for
production of the documents. In compliance with the court’s
order, on 7 February, 1967, the defendant produced all the
documents in his possession viz., account books for the
years 1959-60 to 1965-65 but he was permitted by the trial
court to’ take back the account books as they were required
to be produced before the Income Tax officer, Yamunanagar on
that day, with the direction that he should produce the same
on ’23 February, 1967. On 23 February, 1967 the defendant
appeared in the court with his books but the trial judge
directed him to produce them on 16 March, 1967 and in the
meanwhile allow their inspection to the plaintiff with three
days’ notice. The defendant accordingly sent a letter dated
25 February, 1967 asking the plaintiff to take inspection of
the account books on 27 February, 1967. On 28 February,
1967, the plaintiff made an application that the defendant
had not produced the documents for inspection but this was
apparently wrong, as is evident from the registered notice
dated 1 March, 1967, sent by the defendant to the following
effect:
"After the last date of hearing on 23.2.1967 I
wrote you a letter from Yamuna Nagar on 25.2.1967
informing you that I shall be present in the office of
my counsel Sh. H. L. Soni on 27th February, 1967 at 6
p.m. for affording you the inspection of the documents.
I reached at my counsel’s office at the scheduled
informed time but you did not turn up. I
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kept waiting for you uptil 8.30 p.m. On that day. Later
A I contacted your lawyer Shri S. R. Wadhera but he
expressed his inability to contact you.
Now I would be reaching Ludhiana again on the 9th
March, 1967 and shall be available in my lawyer’s Shri
H. L. Soni’s office from 7 p.m. to 9 p.m. and you will
be free to inspect the documents at the afore-mentioned
venue and during the above-noted time.
Three days’ clear notice is being given to you.
Please be noted to this effect "
Admittedly, the plaintiff never sent any reply to the
notice. Nor did he avail of the opportunity of inspecting
the account books at the office of the defendant’s lawyer on
9 March, 1967.
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On 16 March, 1967 the trial court passed an order
saying that the defendant should produce the books within
four days in the court to enable the plaintiff’s counsel to
inspect them before 29 March, 1967 i.e.. the date fixed for
evidence, failing which the defence of the defendant would
be struck off. On 29 March, 1967 three witnesses of the
plaintiff were examined. After the examination of these
witnesses, the trial court asked the plaintiff’s counsel
that he should apply under order XI, rule 21 to strike out
the defence of the defendant. On 31 March, 1967, the
plaintiff accordingly made an application under C‘order XI,
rule 21 read with section 151 of the Code asserting that the
defendant had failed to comply with the order of the court
as regards production of documents inasmuch as he had not
produced them for inspection.
The defendant opposed the application stating, that
there was no failure on his part to produce the documents
ordered. It was stated that all the documents as were
capable of identification had been produced in the court. It
was alleged that the plaintiff had already inspected the
documents that were specifically set out in the application.
It was also alleged that the plaintiff had not once but
thrice or even four times inspected the documents to his
entire satisfaction except that he was prevented from making
fishing, roving and searching enquiries into the entries
which had no relevance to the suit transaction. It was,
therefore, urged that the striking out of the defence would
not he warranted by law.
Feeling apprehensive that he would not get a fair trial
at the hands of the trial Judge, the defendant applied to
the District Judge, Ludhiana for the transfer of the suit on
10 April, 1967. While the District Judge was seized of the
transfer application, the defendant moved the
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High Court for transfer of the suit to some other court of
competent jurisdiction. The High Court by its order dated 15
May, 1967 declined to interfere.
On 23 May, 1967, the trial court passed an order under
order XI, rule 21 striking out the defence of the defendant
stating that he was placed in the same position as if he had
not defended the suit and adjourned the suit to 21 June,
1967, for examination of the remaining witnesses of the
plaintiff. On 21 June, 1967, the court did not allow the
defendant’s counsel to cross-examine plaintiff’s witnesses
holding that in view of the fact that his defence has been
struck off, he had no right to participate and, therefore,
could not cross-examine the witnesses produced in the court.
The defendant filed a revision before the High Court which
was rejected on 14 August, 1968.
In this appeal, two questions are involved: firstly,
whether the trial court was justified in striking out the
defence of the defendant under order XI, rule 21 of the
C.P.C., 1908, and secondly, whether the High Court was right
in observing that in view of the clear language are of order
XI, rule 21 the defendant cannot be permitted to cross
examine the plaintiff’s witnesses.
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 ’’1 and that the High Court should have declined to
set it aside. The penalty imposed by order XI. rule 21 is of
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.
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Order XI, rule 21 of the Code of Civil Procedure 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, 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."
Section 136 of the Code of Civil Procedure, 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 Judi-
63
cature Act. The practice of the English Courts is, and it
has always A been, to make the order a conditional one, and
to grant a little further time for compliance. In practice
this provision is virtually obsolete(l).
Even assuming that in certain circumstances the
provisions of order Xl, 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 XT, 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.(2) 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.
It is well settled that the stringent provisions of
order XI, rule 21 should be applied only in extreme cases,
where there is contumacy on the part of the defendant or a
wilful attempt to disregard the order of the court is
established.
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(3), Banshi Singh
v. Palit Singh(4), Allahabad Bank Ltd. v. Ganpat Rai(5),
Haigh v. Haigh(6) and Twycroft v. Grant(7).
(1) Halsbury’s Laws of England, 4th Ed., Vol. 13. p. 32.
(2) (1883) WN 58.
(3) I.L.R. 9 Cal. 923.
(4) 7 C.L.J. 29S.
(5) I.L.R. 11 Lah. 209.
(6) L.R. (1886) Ch. D. 478.
(7) 1875 W.N. 201.
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In Haigh v Haigh (supra) Pearson J. observed:
"I have no hesitation in saying that I have the
strongest disinclination, as I believe every other
Judge has, that any case should be decided otherwise
than upon its merits. But this order was introduced to
prevent plaintiffs and defendants from delaying causes
by their negligence or willfulness. So great was my
anxiety to relieve this lady from the consequence of
her wrong headedness if, by any possibility, I could on
proper terms, that I hesitated to refuse to make the
order asked for, and I have looked into all the cases I
could find on the subject to see that the practice of
the Court has been on this order. And I can find no
case in the books where it has been applied, where a
man knowingly and wilfully has allowed judgment to go
by default."
In Twycroft v. Grant (supra) Lush J. interpreting
corresponding order XXXI, rule 20 of the Judicature Act,
held that he would only exercise the powers conferred by the
rule in the last resort. In England, the party against whom
such an order is made would, it seems, be entitled to come
in and ask that the order might be set aside on showing
sufficient grounds for such an application.
In Khajah Assenoolla Joo v. Khajah Abdool Aziz (supra),
Pigot J. therefore made an order striking out the defence of
the defendant under section 136 of the C.P.C. 1882 in
consequence of non-compliance with the earlier order for
production of certain documents, and at the same time
mentioned that the party against whom the order was made
might come in and seek to set it aside on showing sufficient
grounds for the application.
It is settled law that the provisions of order XI, rule
21, should be applied only in extreme cases where obstinacy
or contumacy on the part of the defendant or a wilful
attempt to disregard the order of the court is established.
As pointed out by Lord Russel C.J. in Reg. v. Senior (1) and
affirmed by Cave L. C. in Tamboli v. G.l.P. Rail way(2),
"wilfully" means that:
"the act is done deliberately and intentionally,
not by accident or inadvertence, but so that the mind
of the person who does the act goes with it."
In this case, there was no default, much less any
wilful default, on the part of the defendant, to comply with
any order of the court under order XI, rule 18(2). In
obedience of the order of the court dated
(1) [1899] (1) Q.B.D. 283.
(2) I.L.R. 52 Bom. 169 (P.C.).
65
11 January, 1967, the defendant came all the way from
Yamunanagar to Ludhiana on 27 February, 1967 and was
waiting at his lawyer’s office from 6.00 p.m. to 8.30 p.m.
when the plaintiff or his counsel did not turn up.
Thereafter the defendant sent a registered notice dated I
March, 1967 offering inspection of the documents at his
lawyer’s office on 9 March, 1967, but the plaintiff did not
avail of the opportunity of inspecting the documents. The
defendant had filed an affidavit that the rest of the
documents were not in his possession and could not be
produced. The account books for the years 1961.. 62, 1962-63
and 1963-64 had to be produced by the defendant before the
Income Tax officer, Yamunanagar on 31 January, 1967, then 7
February, 1967 and 16 March, 1967. An affidavit to this
effect was also filed. It is somewhat strange that the trial
court should have fixed the dates which were the dates fixed
by the Income Tax officer
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In view of the notice dated 1 March, 1967, there can be
no doubt that the defendant had tried to comply with the
order of the court by offering inspection on 27 February,
1967. There is no dispute that 27 February, 1967 was the
date mutually agreed upon between the counsel for the
parties. The only controversy is about the scheduled time.
The time fixed according to the plaintiff’s application
dated 28 February, 1967 was 2.30 p.m. at his lawyer’s office
while that according to the defendant’s notice dated 1
March, 1967 it was 6.3() p.m. in his lawyer’s office. The
plaintiff has not examined his counsel, S.R. Wadhera, nor is
there any affidavit by Wadhera. From the material on record
it is amply clear that the appointed scheduled time and
place for inspection of the defendant’s account books was
6.30 p.m. at his lawyer’s office. The plaintiff was afforded
another opportunity of inspection of the account books on 9
March, 1967 at the office of the defendant’s lawyer from 7.0
p.m. to 9.0 p.m. In the circumstances, the trial court was
not justified in holding that there WAS any non-compliance
of its order under order XI, rule 18(2).
It is common ground that the account books for the
years 195960 and 1960-61 were Lying in court. The suit
transactions are of the year 1959. Nothing prevented the
plaintiff from inspecting these books. As regards the
account books for the years 1961-62 to 1964-65, they were
required to be produced before the Income Tax Authorities at
Yamunanagar on 20 March, 1967 and - on subsequent dates. It
is not clear what relevance these books could have to the
controversy between the parties unless the plaintiff wanted
to find some entries to show that there was carry forward of
the entries relating to the suit transaction in the account
books for the years 1959-60 to the subsequent years So as to
bring his claim within time. Apparently, there were no such
entries in the account books for the years 1959-60
66
and 1960-61. As regards the bank pass book of the
defendant’s account with the Punjab National Bank Ltd., for
the period 1 April, 1962 to 31 March, 1963 and 1 April, 1963
to 31 March, 1964 and the counterfoil of cheque No. 01194
dated 7 March, 1963, alleged to be drawn by the defendant in
plaintiff’s favour, the defendant has sworn an affidavit
that he had no account with Punjab National Bank Ltd.,
Yamunanagar during that period nor he had issued any such
cheque as alleged. In view of this, the order of the trial
court dated 23 May, 1967, striking out the defence of the
defendant was wholly unjustified .
The principle governing the court’s exercise of its
discretion under Order XI, rule 21, as already stated, is
that it is only when the default is wilful and as a last
resort that the court should dismiss the suit or strike out
the defence, when the party is guilty of such contumacious
conduct or there is a wilful attempt to disregard the order
of the court that the trial of the suit is arrested.
Applying this test, it is quite clear that there was no
wilful default on the part of the defendant of the courts
order under order XI, rule 18(2) for the production of
documents for inspection, and consequently, the order passed
by the trial court on 23 May, 1967, striking out the defence
of the defendant must be vacated, and the trial must proceed
afresh from the stage where the defendant was not permitted
to participate.
It was further contended that the High Court was in
error in observing that ’in view of the clear language of
order X[, rule 21’ the defendant has no right to cross-
examine the plaintiff’s witness. A persual of order XI, rule
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,?1 shows that where a defence is to be struck off in the
circumstances mentioned therein, the order would be that the
defendant ’be placed in the same position as if he has not
defended’. This indicates that once the defence is struck of
under Order XI, rule 21, the position would be as if the
defendant had not defendant and accordingly the suit would
proceed ex-parte. In Sangram Singh v. Election Tribunal(l)
it was held that if the court proceeds ex-parte against the
defendant under order IX, rule 6(a), the defendant is still
entitled to cross-examine the witnesses examined by the
plaintiff. If the plaintiff makes out a prima facie case
the court may pass a decree for the plaintiff. If the
plaintiff fails to make out a prima facie case, the court
may dismiss the plaintiff s suit. Every Judge in dealing
with an ex-parte case has to take care that the plaintiff’s
case is, at least, prima facie proved. But, as we set aside
the order under order XI, rule 21, this contention does not
survive for our consideration. We, therefore, refrain from
expressing any opinion on the question.
(1) [1955] (2) S.C.R. 1.
67
For the reasons given, the order passed by the trial
court dated A 23 May, 1967 striking out the defence of the
defendant under order XI, rule read with section 151 of the
C.P.C., and its subsequent order dated 21 July, 1967 are
both set aside and it is directed to proceed with the trial
according to law. There shall be no order as to costs.
S.R. Appeal allowed.
68