Judgment Heard Shri D. Pangam, learned Counsel appearing for the Petitioners and Shri Nitin Sardessai, learned Counsel appearing for the Respondents. 2. The above Petition challenges the Order passed by the learned District Judge, South Goa, at Margao, dated 26.07.2006, passed in Misc. Civil Appeal no. 13/2005, whereby an Appeal preferred by the Respondents challenging the Order passed by the learned Trial Judge, dismissing the application under Order 39 Rule 11 of the Civil Procedure Code, came to be allowed and the defence of the Petitioners was struck down. 3. Shri Pangam, learned Counsel appearing for the Petitioners, has raised a grievance as far as the impugned Order is concerned essentially on the short ground that the learned Appellate Court has proceeded to hold that once there is a breach of an Order, the consequences of striking of the defence under Order 39 Rule 11 of the Civil Procedure Code was mandatory. Learned Counsel further pointed out that the learned Judge has relied upon the Judgment of the learned Single Judge of this Court which was overruled by the Division Bench in the Judgment reported in 2004 (2) Mah. L. J. 1 in the case of Ramavatar Surajmal Modi vs. Mulchand Surajmal Modi. The learned Counsel has taken me through the Judgments of the Division Bench of this Court and pointed out that the Division Bench has held that the Order of striking of of defence is discretionary and not mandatory and, as such, on this ground alone, the impugned Order deserves to be quashed and set aside. Learned Counsel further pointed out that as far as the merits of the case are concerned, the Petitioners have not committed any breach of Order as, according to him, the Order of alleged breach was only permitting the Petitioners to remove the ore from the suit property. Learned Counsel further pointed out that without considering the defence of the Petitioners to the application under Order 39 Rule 11 of the Civil Procedure Code, the learned Judge has allowed the Appeal preferred by the Respondents essentially on the ground that once there is a breach of the Order, the defence of the Petitioners is to be struck off. Learned Counsel has taken me through the impugned Judgment and pointed out that the learned Judge has misconstrued the provisions of law as well as the evidence on record to come to such conclusion. 4. Learned Counsel has taken me through the impugned Judgment and pointed out that the learned Judge has misconstrued the provisions of law as well as the evidence on record to come to such conclusion. 4. On the other hand, Shri Sardessai, learned Counsel appearing for the Respondents, has supported the impugned Judgment. Learned Counsel has further pointed out that though the Division Bench of this Court has overruled the Judgment of the learned Single Judge of this Court relied upon by the learned Appellate Court, nevertheless, considering that the Petitioners have committed a breach of the Order passed by the learned Trial Judge, the consequences of striking off the defence under Order 39 Rule 11 of the Civil Procedure Code, is justified. Learned Counsel further pointed out that the learned Judge has rightly found that the Petitioners have committed a breach of the Order when the Petitioners were only permitted to remove all the ore from the suit property. Learned Counsel has taken me through the impugned Orders as well as through the Orders passed by the learned Trial Judge and pointed out that there is no case for any interference in the impugned Order. 5. I have carefully considered the submissions of the learned Counsel appearing for the respective parties. Taking note of the submission of Shri Pangam, learned Counsel appearing for the Petitioners to the effect that the Judgment of the learned Single Judge has been overruled by the Division Bench of this Court, I find that the findings of the Lower Appellate Court to the effect that the consequences of striking off the defence are mandatory under Order 39 Rule 11 of the Civil Procedure Code, cannot be sustained. The Division Bench of this Court in the case of Ramavatar Surajmal Modi vs. Mulchand Surajmal Modi (supra) has in para 7 observed thus: “7. Rule 11 of Order 39 as introduced by the Bombay amendment provides for a procedure on parties defying orders of the Court and/or committing breach of any undertaking to the Court. The Division Bench of this Court in the case of Ramavatar Surajmal Modi vs. Mulchand Surajmal Modi (supra) has in para 7 observed thus: “7. Rule 11 of Order 39 as introduced by the Bombay amendment provides for a procedure on parties defying orders of the Court and/or committing breach of any undertaking to the Court. We are concerned with the question whether sub-rule (1) of Rule 11, Order 39 leaves no discretion on the Court and that it obliges the Court to visit the defaulting party with the penalty prescribed therein irrespective of the circumstances that default is not willful or the conduct of the party responsible for the default is not contumacious or there is reasonable explanation for default. The meaning and intention of the rule making authority must govern, and these are to be ascertained not only from the phraseology of the provision but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other. Inter alia the courts have applied the test whether the object of the provision will be defeated or furthered by holding the provision mandatory or directory. Let us not forget that the dismissal of suit or proceeding or striking out the defence of a defendant for noncompliance of the Court's order or breach of an undertaking is serious and grave consequence. By making provision of serious penalty of dismissal of suit or striking out the defence against the party responsible for default, the rule making authority did not intend to leave no discretion to the Court. The object of the provision of Order 39, Rule 11(1) is not defeated if it is held to be directory as the Court can in its discretion for adequate reasons visit the defaulting party with the penalty envisaged therein. On the other hand if the provision is held mandatory, the Court "shall" be left with no discretion and peremptorily shall have to dismiss the suit where the plaintiff is responsible for the default or to strike off the defence when the defendant is guilty of default even though the default is not found willful or conduct of such party not obstinate or contumacious. In our considered view, the provision in sub-rule (1) merely vests power in the Court to dismiss the suit or proceeding where the default is by the plaintiff and strike off the defence of the defendant where the defaulter is the defendant. It does not obligate to do so in every case of default. This is further fortified by the provision contained in sub-rule (2) which gives a discretion to the Court that even after the order contemplated under the sub-rule (1) of Rule 11 has been passed, upon sufficient cause being shown by the party responsible for the default or contravention or breach and such party makes amend for the default or contravention or breach to the satisfaction of the Court, the Court may restore the suit or hear the defence on such terms and conditions it deems fit. If the Court has power to restore the party to the same position even after the adverse order has been passed under sub-rule (1) of Rule 11 if the case is made out under sub-rule (2), the provision of sub-rule (1) has to be held to be directory and not imperative. The provision in the nature of sub-rule (2) leaves no manner of doubt the intention of the rule making authority that the provision of sub-rule (1) of Rule 11 is directory and that by such provision power has been vested in the Court to dismiss the suit or proceeding where the plaintiff is in default or striking off the defence of the defendant, where defendant is responsible for the default. Unfortunately, neither in Ratnakar D. Patade nor in Smt. Asha M. Joshi, the learned Judges adverted to sub-rule (2) of Rule 11 and its effect. The Supreme Court in M/s. Babbar Sewing Machine Co. v. Tirlok Nath Mahajan, A.I.R. 1978 S.C. 1436 held that the power of dismissal of suit or striking out of the defence under Order 11, Rule 21 of the Code of Civil Procedure 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 was further observed that an order striking out the defence under Order 1, Rule 21 should be made unless there has been obstinacy or contumacy on the part of the defendant or willful attempt to disregard the order of the Court to produce the documents.” 6. Taking note of the observations of the Division Bench, I find that to that extend, the impugned Order deserves to be quashed and set aside. 7. With regard to the rival contentions in respect of the merits of the application under Order 39 Rule 11 of the Civil Procedure Code, I find it appropriate that considering that the impugned Order was passed on the background that the consequences of committing a breach of an Order would result in striking off the defence under Order 39 Rule 11 of the Civil Procedure Code, it would be appropriate for the Lower Appellate Court to decide the appeal afresh after hearing the parties in accordance with law. All the contentions of the parties on merits are left open. 8. In view of the above, I pass the following: (i) Rule is made absolute in terms of prayer (a). (ii) Misc. Civil Appeal No.13/2005, is restored to the file of the learned District Judge. (iii) The learned District Judge is directed to decide the said Appeal afresh after hearing the parties in accordance with law in the light of the observations made herein above, in accordance with law. (iv) All the contentions of the parties on merits are left open. (v) Petition stands disposed of accordingly.