Parukutty Amma v. Thankamma Amma — 1988 DIGILAW 180 (KER)

Judgment :- CRP. No. 1086 of 1986-B. 1. The first defendant challenges the order passed by the Munsiff Court, Ottapalam. The plaintiff filed a suit for injunction. Defendants 1 to 3 contended that the plaintiff has no title and possession of the plaint schedule property. Further, they contended that the title deed of the plaintiff is not genuine but a bogus one. These contentions were raised on the ground that the first defendant has transferred the property in favour of the plaintiff. When the execution of the document of title relied on by the plaintiff was denied by the first defendant, the plaintiff wanted the court to obtain the expert opinion regarding the thumb impression in the document. For the comparison of the thumb impressions he filed an application before the court to obtain a thumb impression of the first defendant. The first defendant made a representation that she is not in a position (of course now she is aged 77) to present herself before the court. So, the court appointed an officer of the court to get the thumb impressions of the first defendant for the purpose of sending the same to an expert. The plaintiff deposited the required amount of Rs. 2,270/-. The specimen thumb impressions taken by the officer of the court along with the document were sent to the expert for opinion. The expert opined that the specimen thumb impressions are blurred and cannot be used for a proper identification and he is not in a position to give an expert opinion. The expert has demanded his fees and wanted the court to issue a cheque for Rs. 2,270/-. This was objected to by the plaintiff on several grounds. The court rejected all the objections and allowed the application for issuance of a cheque. This order allowing the expert to withdraw the amount in deposit in court is the subject matter of CRP. No. 1097 of 1986. 2. The plaintiff again moved the court for directing the first defendant to appear before the court and to give her thumb impressions before the court itself. That petition was allowed on 16-9-1985. The first defendant filed an Interlocutory Application, I. A. No. 1011 of 1985, in order to review the above said order. The court dismissed the review application on 30-9-1985. That petition was allowed on 16-9-1985. The first defendant filed an Interlocutory Application, I. A. No. 1011 of 1985, in order to review the above said order. The court dismissed the review application on 30-9-1985. So, the order passed by the court to appear before the court for giving a thumb impression was made final and was in force. A notice was served on the first defendant to appear and to give the thumb impression. The first defendant did not appear. But her husband filed an affidavit on 3-10-1985 stating that she is not in a position to appear before the court because of her illness. From the order, it is clear that the court below was not willing to accept the affidavit of her husband. In these circumstances, the plaintiff filed an application stating that the first defendant is deliberately disobeying the orders of the court in declining to appear before the court for the purpose of giving her thumb impression. The plaintiff prayed for striking off the defence of the first defendant on the ground of disobedience of the court's order and non-co-operation with the court. That application was considered by the trial court and the trial court passed the impugned order stating that "in these circumstances, this court is of the opinion that the contentions advanced on behalf of the first defendant do not deserve any merits. They deserve to be rejected. Accordingly the contentions of the first defendant are rejected and the contentions of the plaintiff are upheld. Hence this point is found in favour of the plaintiff". The court allowed the application, striking out the defence of the first defendant with costs of the plaintiff. It is seen from the order that the court has been led to consider the matters which were not very relevant for consideration. A detailed enquiry as to the content and scone of S.45 and S.73 of the Evidence Act was considered by the court below. Further, it is seen that the court below has also considered the scope and content of R.16, 0.6 of the Code. Anyhow, ultimately the court found that the application has to be allowed. 3. Counsel for the revision petitioner also advanced arguments of course with ability. But I have to say that be also argued the case on the basis of 0.6, R.16, and S.73 of the Evidence Act. Anyhow, ultimately the court found that the application has to be allowed. 3. Counsel for the revision petitioner also advanced arguments of course with ability. But I have to say that be also argued the case on the basis of 0.6, R.16, and S.73 of the Evidence Act. A senior counsel appearing for the respondent also tried to counter the argument and also cited decisions concerning Art.20 (3) of the Constitution. Since the counsel on both sides cited several decisions which are not of much help to decide the real questions involved in this case, I do not want to discuss those decisions in detail. The counsel for the revision petitioner and the respondent cited the following decisions. I shall give a list of these decisions. (1988) 38 Ch. D. 263, AIR. 1951, Nag. 412, AIR. 1976 Goa. 74,1972 MLJ. !19,1925 Cal. 860.1985 KLT. 695,1987 (2) KLT. 644.1986 KLT, 655,1983 KLT. 281,1987 KLT. 245, AIR. 1961 SC. 1808, AIR. 1960 Ker. 390, AIR. 1952 Raj. 157, AIR 1958 Allahabad 350; AIR 1960 All. 573, AIR 1965 Patna 156; AIR 1983 Raj. 23; AIR 1976 MP 64. 4. The short question that has to be decided in the case is whether a court has power in a circumstance when the court finds that a party to a suit is deliberately disobeying the orders of the court, to strike off bis defence. The second question that has to be considered is whether such a circumstance has been found in the case. An incidental question is when a court finds such a circumstance whether this court can re-investigate that circumstance exercising its revisional power. In fact, I asked the counsel for the revision petitioner whether under any circumstance the court can strike off the decence of a defendant or the contentions raised by the plaintiff. The counsel submitted before me that there is no specific provision other than Order II R.21 and the striking off the defences under 0.6 Rule, 16. True, the code does not give by a rule or provide a section to meet a contingency which I have indicated earlier. S.151 provides the saving of all inherent powers of the court. The court possess always inherent power apart from the specified powers given by the Code. 5. True, the code does not give by a rule or provide a section to meet a contingency which I have indicated earlier. S.151 provides the saving of all inherent powers of the court. The court possess always inherent power apart from the specified powers given by the Code. 5. The next question is, should such a power with the court include a power to strike off the defence in deserving cases for meeting the ends of justice. If the court feels that to meet the ends of justice such a course is necessary, namely, to strike off the defence, I am of the view that such a power inhers with the court from its very constitution as a court and that power is absolutely necessary in certain circumstances to meet the ends of justice. I make it clear that the question is not res integrata. This matter has been considered by other courts also. I shall cite two decisions. In the decision reported in Venkatacharyulu v. Yesobu (AIR. 1932 Madras 263) the court held that: "that the striking off of the defence was within the jurisdiction of the Court in the exercise of its inherent powers under S.151 although it was not the only order which the Court could pass under the circumstances of the case". A simitar view has been taken in a decision reported in East Indian Railway Company v. Jit Mal (AIR. 1925 All. 280). Kukerji, J. said: "Where payment of costs is made a condition precedent of adjournment granted to the defendants it is open to the Court to strike off the defence and proceed ex parte, when the costs are not paid as directed". 6. I have no doubt that in cases where a party who deliberately disobeys the orders of the court has to incur the liability of his defence struck off by the court. This is essential because if this power is not acceded to the court, it will create great difficulty for the court to control the proceedings of the court and to obtain the co-operation of the parties. 7. Since I have now delineated the law on the subject, the only question that remains to be considered is whether on the facts and circumstances the power of striking off of the defence can be exercised. This, as I said earlier, is a question of fact. 7. Since I have now delineated the law on the subject, the only question that remains to be considered is whether on the facts and circumstances the power of striking off of the defence can be exercised. This, as I said earlier, is a question of fact. What has happened in the case is amply justifying the court to resort the power of striking off the defence. Counsel for the revision petitioner submitted that the court below ought to have atleast given a further opportunity to the first defendant to obey the orders of the court. The counsel also submitted before me that if the first defendant is not very ill she will appear before the court and will give her thumb impression. If she is ill that fact will be proved beyond doubt before the trial court. So, this court should give a further opportunity to the first defendant to establish her case that she is not willing to come before the court but she was prevented by her illness to comply with the order of the court. In these circumstances, I feel that the first defendant should be given one more opportunity to comply with the order of the court. If she satisfies the court that she is really ill and that she cannot appear before the court, the court can take appropriate steps in the matter. If the court finds that the first defendant is in a position to appear before the court and if she refuses again to appear before the court, the order now passed will take its effect. With these observations, CRP. No. 1086 of 1986 is disposed of. CRP. No. 1097 of 1986-F. Since I have now passed a conditional order in CRP. No. 1086 of 1986 though I see no ground to interfere with the order allowing the Expert to withdraw the amount in deposit. I direct the trial court to get an undertaking from the Expert that in case a proper thumb impression is sent for comparison he will have to compare it and give his opinion without demanding any further fees. With these observations CRP. No. 1097 of 1986-F is disposed of. Both these civil revision petitions are disposed of. No order as to costs.