Ganeswar Nayak and Another vs The United Bank of India and Others

P.K. Mohanti, J.—This appeal has been preferred by Defendants 4 and 5 under Order 43, Rule 1(f) CPC against an order passed by the Third Additional Subordinate Judge, Cuttack refusing to dismiss the Plaintiff''s suit under the provisions of Order 11, Rule 21, Code of Civil Procedure.

The Plaintiff-Respondent No. 1 filed T.M.S. No. 20 of 1969 for recovery of a sum of Rs. 40,327.14 against the Defendants. The Defendants-Appellants preferred a cross claim for rendition of accounts and for other reliefs. They sought for leave of the Court to deliver interrogatories in writing for examination of the Plaintiff and leave of the Court being duly granted they delivered their written interrogatories on 24-3-1973. Respondent No. 1 on 31-3-1973 answered the interrogatories. On 18-4-1973 the Appellants filed a Petitioner under Order 11, Rule 21, CPC with a prayer to dismiss the Plaintiff''s suit for non-compliance with the Court''s order. It was alleged that the answers to the interrogatories given by Respondent No. 1 were vague and evasive. Respondent No. 1 filed counter contending that the answers to all the interrogatories were quite sufficient and that there has been no evasion or omission to answer anyone of the interrogatories.

The learned Subordinate Judge rejected the petition under Order 11, Rule 21, CPC observing that all the interrogatories had been answered and the mere fact that the party delivering the interrogatories was not satisfied with the answers will not entitle the Court to apply the penal provisions of Order 11, Rule 21. CPC to dismiss the suit. It is against this order that the Defendants 4 and 5 have preferred this appeal.

The provisions of Order 11, Rule 21, CPC are of a very drastic nature and should be applied in extreme cases where the Court is satisfied that there has been wilful default. In AIR 1929 750 (Lahore) , Division Bench held as follows:

...an order to strike out a defence under Rule 21 should not be made by a Court unless the default has been wilful and that such an order should only be made as a last resort.

In Jawantsinh Jwala Singh v. Krishnakumar Ganga Prasad Bajpai AIR 1950 Nag 8, the Court indicated that granting that the provisions of Order 11, Rule 21, CPC must be strictly enforced, it does not follow that a suit can be lightly thrown out or a defence struck off without adequate reason. The test laid down is whether the default is wilful, and quite properly. Unless that test is satisfied, no order under Order 11, Rule 21 ought to be passed.

In Shyamlal Guruprasad v. Ganpatlal and Ors. AIR 954 MB 65, the Court observed:

...action under Order 11, Rule 21 should be taken only in extreme cases and as a last resort. The test laid down is whether the default is wilful. Unless and until it is proved that the default is wilful, penalty should not be imposed even if the order of the Court is not complied with owing to negligence or inadvertence.

In the light of the principles laid down in the aforesaid decisions it can be said here that even if it is held that the answers to the interrogatories given by the Plaintiff-Respondent are not quite satisfactory, still he cannot be visited with the penalty of dismissal of the suit. It cannot be said that there was deliberate disobedience of the Court''s order to answer the interrogatories. On a perusal of the questions put by the Appellants and the answers given by the Respondent No. 1, I am inclined to hold that there has been substantial compliance with the Court''s order. This is therefore not a fit case for applying the stringent provisions of Order 11, Rule 21, Code of Civil Procedure.

Mr. R. Mohanty, the learned Counsel for the Appellants however submitted that the answers to the interrogatories Nos. 4, 5, 8, 12 and 18 are unsatisfactory and that his clients would apply to the trial Court for an order under Order 11, Rule 11, CPC requiring the Plaintiff to answer further. If an application is made by the Defendants 4 and 5 for an order requiring the Plaintiff to answer further to the above interrogatories it will be open to the trial Court to consider the same and pass appropriate orders.

In the result, the appeal fails and is dismissed, but in the circumstances without any order as to costs.

It was brought to my notice that the Court''s order dated 17-4-1971 directing the Plaintiff to sell the pledged goods and to deposit the sale proceeds has not yet been complied with. The learned Subordinate Judge is directed to see that the aforesaid order is complied with without any further delay.

Appeal dismissed.