BABBAR SEWING MACHINE CO. versus TRILOK NATH MAHAJAN

Citation: [1979] 1 S.C.R. 57 · Decided: 07-08-1978 · Supreme Court of India · Bench: JASWANT SINGH · Disposal: Appeal(s) allowed

Judgment (excerpt)

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BABBAR SEWING MACHINE CO. 
v. 
TRILOK NATH MAHAJAN 
August 7, 1978 
[JASWANT SINGH, D. A. DESAI AND A. p; SEN, JJ.J 
Defence in a suit, striking out of for non-compliance with order for dis-
covery-Civil Procedure Code 1908, (Act V) Order XI rule 21 
read 
with 
Section 151, Scope of-Right to cross examine, whether lost. 
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 Chitrai 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 pern1itted 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-Z.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 the,ir inspection to the res~dent 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 of his Counsel. On his failure to do so, the appellant sent onee agam 
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 examina-
tion of three witnesses of the respondent, the trial Court asked the respondent's 
Counsel to apply under Order XI rule 21 to strike out the defence of the appel-
lant. On 31-3-67 the respondent filed an application accordingly which was vehe-
mently 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 c<Ylll-
peteot 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 
oo 21-6-67 refused permission to the appellant's counsel to cross-examine the 
re8poodent's witnesses. The revision filed by the appellant in the High Court 
WllS rejected on 14-8-1968. 
Allowing the appeal by special leave, the Court 
HELD : I. The penalty imposed by Order XI, rule 21 is of a highly penal 
1tature 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 
5-520SCl/78 
A 
B 
c 
D 
E 
F 
G 
H 
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58 
SUPREME COURT REPORTS 
[1979] 1 S.C.R. 
A 
dO\\'Il therein. 
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 <lisregard the order of the Court is established. 
[62E, 63EJ 
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 Xl, rule 21, unless the Court is satisfied that 
B 
the plaintiff was wilfully withholding the documents which the defendant soughl 
to discover. In such an event, the plaintiff must take the conseQ.uence 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 id the same' position 
as if he had oot defended the suit. [63 B-D) 
c 
3. The po,ver for dismissal of a suit or striking out of the defence under 
D 
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 inexciisable -delay 
which may cause substantial or serious prejudice to the opposite party. Tbe 
rule must be worked with c

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