1. This is an application in revision by the defendant from an order passed by the Civil Judge, Junior Division, Darwha, in Civil Suit No. 266 of 1959. The applicants are directed to furnish security in a sum of Rs. 30,000/- to cover the costs, mesne profits and future mesne profits that may be accrued to the plaintiff-opponent. A further order is made by the Civil Judge that if they fail to furnish the security within fifteen days from the date of the order, the defence of the defendants shall stand struck off “from the record.
2. The plaintiff filed a suit against the applicants with a prayer for their ejectment from the suit field admeasuring 75 acres and also claiming mesne profits at a rate of Rs. 1333.33 per annum. The applicants here have claimed tenancy rights and, therefore, an order was made under Section 125 of the Bombay Tenancy and Agricultural Lands Act, 195, referring the issue of tenancy to the Mamlatdar. The mamlatdar has found that applicant No. 1 was a tenant. This was confirmed by the Special Deputy Collector also in an appeal heard by him. The matter went up to the Revenue Tribunal and the Revenue Tribunal also confirmed the order of the two lower courts. The matter then went up to the High Court, and this Court in 1968 decided that the reference was not tenable and that reference to the revenue authorities ought not to have been made, because the status of the applicant No. 1 should be considered in the context of the law laid down in the Berar Regulation of Agricultural Leases Act, 1951. Because no revenue officer was specified to hear such reference under the Berar Regulation of Agricultural Leases Act, therefore, this Court decided that the Civil Court had no jurisdiction to refer the issue of tenancy to the revenue officer. It appears that the applicant No. 1 has taken up the matter with the Supreme Court and has also obtained a special leave and got his appeal admitted against the decision of this Court. The matter, therefore, rests there.
3. There is, however, no stay granted by the Supreme Court. When the record and proceedings went back to the Civil Court after the decision of this Court in Special Civil Applications Nos. 243 and 244 of 1966 that reference could not have been made to the revenue authorities, the non-applicant (plaintiff) applied on 13-2-1969 requesting the court to pass an order that the applicants should furnish security against Ms suit claim of mesne profits. The applicant opposed the said application stating that the passing of such an order asking the applicants to furnish security would be beyond the jurisdiction of the court and would be a violation of Order 38 of the CPC. According to the applicants such order was not enforceable. The trial Court, however, ordered on 14-7-1969 that the applicants should furnish security in a sum of Rs. 30,000/- on or before 29-7-1969, failing which the defence of the applicants would stand struck out. The applicants being aggrieved by this order, have preferred the instant revision application.
4. The learned advocate for the applicants contends here that the order of the trial Court is grossly erroneous beacuse he purported to have passed this order under section 151 of the cpc. According to him, he could not use his powers under section 151 of the cpc for passing an order to furnish security when the suit claim is yet to be decided and when he was, in fact, found to be a tenant of the suit lands by not only the revenue tahsildar, but also the Special Deputy Collector and the Revenue Tribunal, although those orders were set aside on other grounds by this High Court. It is, therefore, contended by him that the trial Court has grossly erred in passing such an order under Section 151. It is also his contention that such an order could not even be passed under O. 38, R. 5 of the CPC or under any of the provisions of the Code of Civil Procedure According to him, there are some provisions in the Code of Civil Procedure whereunder a party's defence could be struck out in certain circumstances but there is no provision of law which allows the plaintiff to request the Court at the beginning of the proceedings to strike out the defence simply because he was unable to furnish security for the suit claim of the plaintiff. On the other hand, the learned advocate for the non-applicant contends here that the applicants have taken forcible possession of the suit land and that they are bent upon remaining in possession of this land in this way. According to him, the applicants are also trying to delay the proceedings and in this way continuing their unlawful possession. The facts, however, are that the plaintiff had filed a suit for ejecting the applicants and he is also claiming mesne profits. The applicants, on the other hand, claim to be the tenants of the suit land One could reasonably also say that the contentions of the applicants may be found to be correct because of the findings of the revenue authorities that they are tenants of the suit land. Was it then proper for the trial Court, in these circumstances, to pass an order penalising the applicants not only to furnish security but also to pass an order threatening to strike out the defence, if they did not furnish the necessary security in a sum of Rs. 30,000. It appears to me that this order on the facts and circumstances of this case is erroneous in law.
5. Under Order 38 of the CPC there are certain provisions of arrest and attachment before judgment. Under Rule 2 of that Order, where the defendant fails to show cause, (under Rule 1), the Court can order him either to deposit in Court money or other property sufficient to answer the claim against him, or to furnish security for his appearance at any time when called upon while the suit is pending and until satisfaction of any decree that may be passed against him in the suit, or make such order as it thinks fit in regard to the sum which may have been paid by the defendant under the proviso to R. 1. Under Rule 4, where the defendant fails to comply with any order regarding security, the Court may commit him to the civil prison until the decision of the suit or where a decree is passed against the defendant, until the decree has been satisfied: Provided that no person shall’ be detained in prison under this rule in any case for a longer period than six months, nor for a longer period than six weeks when the amount or value of the subject-matter of the suit does not exceed fifty rupees. Under Rule 5. where at any stage of a suit the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him is about to dispose of the whole or any part of Ms property or is about to remove the whole or any part of his property from the local limits of the jurisdiction o£ the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. The Court can also attach the property if the, defendant fails to show cause under Rule 6. There is, therefore, hardly any scope for disabling the defendant from defending himself in the suit filed by the plaintiff to eject him. It would, therefore, be improper for a Civil Court to disable a party from defending himself when other steps could be taken against Mm if they were found necessary.
6. There is, however, a provision under Order 11, Rule 21 of the CPC when the defence of a defendant could be struck out. Under that rule if 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 Ms 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; there is no other similar provision.
7. But it may be that in a given case a Civil Court may think of ordering under section 151 of the cpc in the way the trial Court has ordered; but that should be done only when the Court finds that the defendant's acts or defaults are wilful and as a last resort; but surely this was not a case in which he could have ordered that the defence of the defendants should be struck out. The facts and circumstances do not warrant such an order. If the non-applicant still thinks he has a good case to secure his decree, he has other courses open to him according to law.
8. In the above view of the matter, therefore, I will not be able to agree with the order passed by the Civil Judge, Junior Division, Darwha. I, therefore, set aside the order of the trial Court and allow this revision application with costs.
9. Revision allowed.