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2012 DIGILAW 625 (CAL)

Santi Baladhikari v. Dilip Jain

2012-07-13

PRASENJIT MANDAL

body2012
Judgment PRASENJIT MANDAL, J. 1. THIS application is at the instance of the defendant and is directed against the Order No.57 dated April 7, 2nd 2010 passed by the learned Civil Judge (Junior Division), Court, Burdwan in Title Suit No.64 of 2007 thereby forbidding the defendant from adducing evidence and expunging the evidence already recorded. 2. IN a suit for declaration of title and permanent injunction in respect of the suit property as described in the schedule of the plaint filed by the plaintiff / opposite party herein, the defendant / petitioner herein filed a written statement contending, inter alia, that the suit is barred for non-joinder and misjoinder of parties. The defendant / petitioner has also contended that neither the plaintiff nor his father ever possessed the suit property. The defendant had the possible right, title, interest and possession over the suit property and she being in need of money had transferred some portion of the suit property to different persons and those transferees had mutated their names in the settlement record and also with the Municipality. They had also raised pucca construction thereon. So, the plaintiff has wrongfully impleaded the defendant in the present suit and thus, the suit suffers from non-joinder and misjoinder of the necessary parties. The plaintiff has no right, title, interest and possession over the suit property. 3. ON the basis of such averment in the written statement, the plaintiff filed an application for interrogatories to know the names and addresses of the transferees in whose favour the deeds had been executed and the respective dates of registration of those deeds. In consequences, the defendant intimated the Court that she could not recollect the memory with regard to the names, addresses of the transferees and the dates of registration, that is, total non-cooperation in respect of her averment. 4. UNDER the circumstances, by an earlier order dated August 4, 2008, the learned Trial Judge allowed the application under Order 11 Rule 21 of the C.P.C. on contest and the defence taken by the defendant against the plaintiff on the point of consideration was struck out. 5. 4. UNDER the circumstances, by an earlier order dated August 4, 2008, the learned Trial Judge allowed the application under Order 11 Rule 21 of the C.P.C. on contest and the defence taken by the defendant against the plaintiff on the point of consideration was struck out. 5. AT the time of adducing evidence on behalf of the defendant / petitioner, this fact was not brought to the notice of the learned Court earlier and as such, when the matter was brought to the notice of the learned Court, by the impugned order, the learned Trial Judge has recorded that the evidence led by the defendant till date stands expunged and the next date has been fixed for hearing argument. Being aggrieved by the impugned order, this application has been preferred. 6. UPON hearing the learned Counsel for the parties and on going through the materials on record, I find that the above facts are not in dispute. By the order dated August 4, 2008, the defence by the defendant against the plaintiff on the point for consideration had been struck down for non-cooperation. The said order was not challenged before any forum and as such, the said order had attained finality. Thereafter, when the defendant started adducing evidence and some documents had been marked exhibit, the attention of the learned Trial Judge was drawn to the earlier order dated August 4, 2008. 7. MR. Jiban Ratan Chatterjee, learned Advocate appearing for the petitioner, has contended that as per impugned order only, the matter relating to misjoinder and non-joinder of parties has been expunged and so, the defendant is at liberty to adduce evidence in support of her other contentions. 8. ON the other hand, Mr. Bidyut Kumar Banerjee, learned Advocate appearing for the opposite party has contended that according to the decision of Modula India v. Kamakshya Singh Deo reported in AIR 1989 SC 162 particularly paragraph no.12, the entire defence should be struck out for non-compliance of the interrogatories. 8. ON the other hand, Mr. Bidyut Kumar Banerjee, learned Advocate appearing for the opposite party has contended that according to the decision of Modula India v. Kamakshya Singh Deo reported in AIR 1989 SC 162 particularly paragraph no.12, the entire defence should be struck out for non-compliance of the interrogatories. He has also submitted that after striking out defence in the instant case, the position of the parties with regard to the matter in dispute will be the same as would happen in the case of striking of defence under Section 17(3) of the West Bengal Premises Tenancy Act, 1956 and that according to the decision of Modula India (supra) subject to the exercise of an appropriate discretion by the Court on the facts of a particular case, the tenant would generally be entitled (a) to cross-examine the plaintiff's witnesses; and (b) to address argument on the basis of the plaintiff's case. However, when the defendant is afforded the aforesaid right she would not be entitled to lead any evidence of his own nor can her cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weaknesses of the plaintiff's case. In no circumstances should the cross-examination be permitted to travel beyond this legitimate scope and to convert itself virtually into a presentation of the defendant's case either directly or in the form of suggestions put to the plaintiff's witnesses. Thus, Mr. Banerjee submits that the learned Trial Judge has rightly expunged the evidence already recorded on behalf of the defendant and he has rightly closed the defence witness and fixed the matter for hearing argument. 9. HE has also drawn my attention to the provisions of Order 11 Rule 21 of the C.P.C. as noted in the C.P.C. For convenience, the said provision is quoted below:- 21. 9. HE has also drawn my attention to the provisions of Order 11 Rule 21 of the C.P.C. as noted in the C.P.C. For convenience, the said provision is quoted below:- 21. Non-compliance with order for discovery.- [(1)] Where any party fails to comply with any order to answer interrogatories, or for discovery or 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 on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard]. [(2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action.] 10. THEREFORE, according to the provision of Rule 21, when the defendant had failed to answer the interrogatories, her defence was liable to be struck out and she was to be placed in the same position as if she had not defended. 11. ACCORDINGLY, for non-compliance of the Court's direction, I am of the opinion that the learned Trial Judge has rightly allowed the application under Order 11 Rule 21 of the C.P.C. The learned Trial Judge has not exceeded his jurisdiction in passing the impugned order. The learned Trial Judge has not, therefore, committed illegality or material irregularity in passing the impugned order. 12. ACCORDINGLY, I am of the view that there is no scope of interference with the impugned order. 13. SO, this application is devoid of merits and is, therefore, dismissed. 14. CONSIDERING the circumstances, there will be no order as to costs. 15. URGENT xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.