The Judgment of the Court was delivered by
D.D Sinha, J.— Heard Shri Vyawahare, learned counsel for the appellant. The counsel for the respondents is absent.
2. The appeal against order is directed against the order dated 25-4-1995 passed by the 4th Joint Civil Judge, Senior Division, Nagpur below Ext. 62 in Special Civil Suit No. 436 of 1992 whereby application moved by the appellant under Or. 39 R. 11 of the Civil Procedure Code for striking out defence of the respondents came to be rejected.
3. Shri Vyawahare, learned counsel for the appellant, states that appellant Smt Asha w/o Madhusudan Joshi filed Special Civil Suit No. 436 of 1992 for partition and separate possession and claimed 1/10 share in the suit property. It is contended that present Respondent 1 Ashok H. Bhide is the brother of the appellant (plaintiff). Respondent 2 Smt Sumitra is the wife of Respondent 1. Respondent 3 Ashutosh is the son of Respondents 1 and 2. Respondent 4 Smt Anuradha Huddar is a partner in M/s Saket Builders and Respondents 5 to 7 are sisters of the appellant-plaintiff.
4. It is further contended by the learned counsel for the appellant that the appellant along with suit filed an application under Or. 39 Rr. 1 and 2 of the Civil Procedure Code for temporary injunction. The said application was rejected by the trial court on 10-6-1992. Being aggrieved by the same, appellant filed appeal against order bearing No. 68 of 1992 challenging validity of the order dated 10-6-1992 passed by the trial court. It is submitted that this Court dismissed the appeal against order vide order dated 6-10-1992 with directions, which read thus:
“While dismissing the present appeal, Respondents 1 to 5 are directed that out of amount of consideration in respect of suit property, they shall keep 1/10 of the said amount in the fixed deposit in State Bank of India, Dharampeth Branch, Nagpur in respect of respective shares of the appellant and Respondents 2, 3 and 4 for initial period of three years. In case special civil suit is not decided within the said period, the said amount shall be further invested in the fixed deposit as per directions of the learned trial Judge. In the meantime, neither the appellant nor Respondents 2 to 4 shall withdraw the said amount. With this direction, the appeal is dismissed. However, there is no order as to costs.”
5. Learned Counsel Shri Vyawahare states that Respondents 1 to 4 were in fact required to deposit Rs. 4,80,000 as per directions of this Court vide order dated 6-11-1992 passed in appeal against Order No. 68 of 1992, out of which respondents have deposited only Rs. 1,20,000 and since the remaining amount of Rs. 3,60,000 was not deposited by the respondents, the appellant filed a contempt petition bearing No. 123 of 1993 for taking appropriate action against the present Respondents 1 to 4 under the provisions of the Contempt of Courts Act. It is contended that present Respondents 1 to 4 filed a specific undertaking in the contempt petition on 22-7-1993, which reads thus:
“We, Respondents 1 to 4 hereby undertake to furnish surety/security for the respective shares of Respondents 2, 3 and 5 before the trial court as directed by this Court.”
6. It is submitted by the learned counsel for the appellant that this Court accepted the undertaking filed in the contempt petition and disposed of the contempt petition on 22-7-1993 by observing thus:
“This undertaking given by the respondent that he will furnish security in addition to the amount deposited of Rs. 1,20,000 shall satisfy the requirement of this order. The respondent is directed to furnish the above security within a period of four weeks from the date of this order.”
The learned counsel for the appellant submits that the period of four weeks expired on 19-8-1993. Till then, Respondents 1 to 4 did not furnish security as per their undertaking dated 22-7-1993 and, therefore, there is a wilful and deliberate disobedience committed by Respondents 1 to 4 not only in respect of the undertaking given by them in contempt petition, but also of the directions given by this Court in Contempt Petition No. 123 of 1993 whereby Respondents 1 to 4 were directed to furnish security within a period of four weeks from 22-7-1993.
7. Learned Counsel Shri Vyawahare further submits that respondents did not file any application before this Court for extension of time to furnish security as directed by this Court nor such time was extended by this Court. However, on 25-8-1993 present Respondents 1 to 4 (Defendants 1, 5, 6 and 7 in the suit) furnished solvency certificate of Rs. 3,60,000 in compliance with the order dated 22-7-1993 passed by this Court in the contempt petition. It is contended by the learned counsel that the trial court refused to accept solvency certificate produced by Respondents 1 to 4 on the ground that solvency certificate furnished by them was in respect of the suit house and since shares of the parties in the suit property were not decided, Respondents 1 to 4 were directed to furnish surety other than the suit house. It is further contended that in the first place trial court should have rejected the solvency certificate submitted by Respondents 1 to 4, even otherwise on the ground that the same is furnished after expiry of period granted by this Court for this purpose apart from reasons for which the same is refused.
8. It is further contended by Shri Vyawahare that Respondents 1 to 4 on 1-11-1993 filed an application before the trial court for grant of time to furnish fresh solvency certificate. That application was rightly rejected by the trial court vide order dated 1-11-1993 by observing that prayer made by the respondents in the application cannot be accepted because trial court has no power to extend the time-limit given by the High Court. It is submitted that Respondents 1 to 4 challenged the order dated 1-11-1993 passed by the 2nd Joint Civil Judge, Junior Division, Nagpur by filing Civil Revision Application St. No. 14520 of 1994 along with application for condonation of delay before this Court. This Court vide order dated 1-9-1994 rejected the application for condonation of delay and consequently, civil revision application, which was registered as CRA Stamp No. 14502 of 1994 automatically stood dismissed. It is contended that Respondents 1 to 4 instead of honouring the undertaking given to this Court and obeying directions given by this Court in the contempt petition, not only failed to honour and comply the same, but adopted a peculiar course with the oblique motive to give go-bye to the terms and conditions of the undertaking as well as directions issued by this Court vide order dated 22-7-1993 in the contempt petition.
9. It is further contended by the learned counsel for the appellant that in view of the above referred facts and circumstances, the appellant moved an application in Special Civil Suit No. 436 of 1992 under Or. 39 R. 11 read with S. 151 of the Civil Procedure Code (Ext. 62) for striking out the defence of Respondents 1 to 4 for misleading the Court and for breach of the order. It is contended that trial court vide order dated 25-4-1995 not only rejected the application filed by the appellant, but also accepted the solvency certificate furnished by Respondents 1 to 4. Being aggrieved by this order, the appellant has filed the present appeal against order.
10. It is vehemently argued by the learned counsel for the appellant that the impugned order was passed by the trial court without taking into consideration the above referred undisputed facts. It is submitted that as per order dated 22-7-1993 passed by this Court in Contempt Petition No. 123 of 1993, Respondents 1 to 4 were directed to furnish security within a period of four weeks from 22-7-1993 and the said period expired on 19-8-1993. It is contended that the respondents did not obtain any extension of time from this Court in this regard. The trial court also rejected the application filed by Respondents 1 to 4 for extension of time to furnish the solvency certificate and revision against the said order was also dismissed by this Court. In a situation like this, the appellant was entitled to move an application under Or. 39 R. 11 of the Civil Procedure Code for striking out the defence of the respondents and the trial court ought to have accepted the application and struck out the defence of Respondents 1 to 4. The impugned order is, therefore, unsustainable in law and may be set aside.
11. I have given anxious thought to the facts placed before this Court by the learned counsel for the appellant and also considered the legal contentions canvassed by him. In the instant case, no affidavit appears to have been filed by the respondents controverting the allegations made by the appellant in the appeal against order. In absence thereof, I am inclined to accept the facts placed by the learned counsel for the appellant before me.
12. In the instant case, this Court vide order dated 6-11-1992 dismissed the appeal against Order No. 68 of 1992 filed by the appellant and directed that out of the amount of consideration in respect of suit property, the respondents shall keep 1/10 of the said amount in the fixed deposit in State Bank of India, Dharampeth Branch, Nagpur in respect of the respective shares of the appellant and present Respondents 5 to 7 initially for a period of three years with the further observation that if the suit is not decided within the said period, amount shall be further invested in the fixed deposit as per directions of the Court. In view of the above referred direction given by this Court, it was undoubtedly clear that Respondents 1 to 4 were required to deposit amount of Rs. 4,80,000 i.e Rs. 1,20,000 each towards the share of the appellant and Respondents 5 to 7. It is not in dispute that the respondents deposited an amount of Rs. 1,20,000 in State Bank of India only and gave a specific undertaking in Contempt Petition No. 123 of 1993 dated 22-7-1993 that Respondents 1 to 4 shall furnish surety for the respective shares of Respondents 5 to 7 before the trial court as directed by this Court vide order dated 16-11-1992 in appeal against Order No. 68 of 1992. This Court while disposing of the contempt petition vide order dated 22-7-1993 showed indulgence and granted concession to Respondents 1 to 4 to furnish security in respect of present Respondents 5 to 7 to the tune of Rs. 3,60,000 before the trial court instead of depositing the said amount. This Court, however, gave a specific direction to Respondents 1 to 4 to furnish the said security within a period of four weeks from 22-7-1993. Respondents 1 to 4 in view of these facts, were not only bound to furnish security in view of their undertaking to the Court, but were specifically directed to furnish security within a period of four weeks. Respondents 1 to 4 did not either care to honour the undertaking given before this Court dated 22-7-1993 nor obeyed the direction given by this Court by furnishing security for the amount of Rs. 3,60,000 within a period of four weeks i.e on or before 19-8-1993. Respondents 1 to 4 in the backdrop of these facts have committed deliberate and intentional disobedience of the terms and conditions of their own undertaking as well as directions issued by this Court in the contempt petition.
13. It is not at all disputed that Respondents 1 to 4 neither made any application to this Court for extension of time nor this Court has extended time for furnishing security beyond the period of four weeks as directed by this Court. I am surprised to see the audacity of Respondents 1 to 4, who have made an application for extension of time before the trial court on 1-11-1993 knowing fully well that it is beyond the jurisdiction of the trial court to extend the time, which was prescribed by the High Court vide order dated 22-7-1993. The trial court was absolutely justified in rejecting the application for extension of time moved by Respondents 1 to 4 vide order dated 1-11-1993. It is really surprising that Respondents 1 to 4 thereafter challenged the order dated 1-11-1993 by filing civil revision application before this Court. The conduct of the respondents in filing civil revision application demonstrates oblique motive with which the revision was preferred. However, this Court did not condone the delay caused in filing revision by dismissing application for condonation of delay, with the result, the civil revision application also stood dismissed. The entire conduct of Respondents 1 to 4 in the backdrop of the above referred facts, reveals that Respondents 1 to 4 never intended to honour the undertaking given to this Court and comply with the directions issued by this Court in the contempt petition. On the other hand, there was a deliberate attempt made by Respondents 1 to 4 by moving application for extension of time to furnish security before the trial court and by challenging the order passed by the trial court rejecting the said application by way of civil revision application in this Court in order to frustrate the condition of undertaking given by them as well as directions issued by this Court in the contempt petition.
14. It will be proper at this stage to consider the provisions of Or. 39 R. 11(1) of the Civil Procedure Code. This Rule is added by the Bombay High Court Notification No. 0102/77 dated 5-9-1983 and contemplates that where the Court orders any party to a suit or proceeding to do or not to do a thing during the pendency of the suit or proceeding or where any party to a suit or proceeding gives any undertaking to the Court to do or refrain from doing a thing during the pendency of the suit or proceeding and such party commits any default in respect of or contravenes such order or commits a breach of such undertaking, the Court may dismiss the suit or proceeding, if the default or contravention or breach is committed by the plaintiff or applicant or strike out the defences, if the default or contravention or breach is committed by the defendants or opponent. The proviso to this Rule contemplates that before passing any order under this sub-rule, notice shall be given to the parties likely to be affected by such order to be passed.
15. R. 11 is added in Or. 39 of the Civil Procedure Code by the High Court vide notification dated 5-9-1983 with a specific purpose and to achieve definite objective. The intent of Rule is to provide the necessary action to be taken by the Court in case parties to the suit defy the order passed by the Court or commit breach of undertaking given to the Court. This provision is introduced with a positive object that the parties to the suit must face necessary consequences contemplated by this Rule in case they defy the order of the Court or commit breach of the undertaking given to the Court. The scheme of Or. 39 R. 11(1) is to clothe the Court with a power to take appropriate action against the parties to the suit in case they defy the order of the Court or commit breach of the undertaking given to the Court. It is no doubt true that the words “Court may” used in the provision, which in the normal set of circumstances, imply that the discretion given to the Court for taking necessary action in the circumstances mentioned in the order, are directory. However, the word “may” in a given case is directory or mandatory needs to be construed in view of scheme of the provision as well as intent and objective to be achieved by such provision. Similarly, weighing of the consequences of holding a provision to be mandatory or directory is vital and more often than not determinative of the very question whether the provision is mandatory or directory. When the design of a statute or provision is to clothe with the power in the Authority or Court for taking definite and positive action in case of breach thereof, then the provision must be construed to be mandatory in nature even though the word used is “may”. While applying these parameters to R. 11(1), I have no hesitation to hold that R. 11(1) of Or. 39 of the Civil Procedure Code is mandatory in nature.
16. My view is fortified by the view expressed by the learned Single Judge of this Court in Ratnakar D. Patade v. Smita Pandurang Dalvi 1996 1 Mah LJ 76. It is observed by the learned Single Judge in the above referred judgment, which reads thus: (Mah LJ p. 82, para 11)
“11. The difference between a mandatory rule and a directory rule is that while former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the rule is enacted. As held by the Supreme Court in Sharif-Ud-Din v. Abdul Gani Lone 1980 1 SCC 403 whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequences should not follow. R. 11(1) lays down that failure to comply with court's Order leads to specified consequence and on fair construction thereof, it is clear that if a party commits default in complying court's order or contravenes it then the consequence as provided therein has to follow. The whole purpose of R. 11(1) would be frustrated if the word ‘may’ in sub-s. (1) would receive construction to mean ‘discretionary’ or ‘directory’. In my view keeping in mind the general object intended to be secured and carefully attending to the scope of the provision, R. 11(1) of the Code of Civil Procedure is ‘mandatory’ in nature and the trial court has erred in construing it as ‘discretionary’ in nature.”
17. In the backdrop of the settled legal position, it must follow that if any party to the proceedings after giving undertaking to the Court commits any default or contravenes or commits a breach of such undertaking and if such breach or default is committed by the defendants, then the necessary consequence shall be to strike out the defences of the defendants. Similar is the case in respect of order passed by the Court whereby party to the suit is required to do or not to do a thing during pendency of the suit and if any default or breach is committed in respect of such order passed by the Court and if it is by the defendants, then necessary consequence would be that the Court shall strike out the defence of such defendants.
18. In the instant case, in the backdrop of the above referred facts, Respondents 1 to 4 not only committed total breach of undertaking given to the Court, but also contravened and breached the order dated 22-7-1993 passed by this Court in Contempt Petition No. 123 of 1993 whereby respondents were directed to furnish security in respect of Respondents 5 to 7 to the tune of Rs. 3,60,000 in the trial court within a period of four weeks. It is pertinent to note that period of four weeks granted by this Court for the above referred purpose to Respondents 1 to 4 had expired on 19-8-1993. Thereafter, lower court had no jurisdiction to accept security, if any, furnished by Respondents 1 to 4 after the said period unless period for this purpose is specifically extended by this Court. By the impugned order, the trial court in utter disregard to the facts, such as time granted by the High Court expired on 19-8-1993, application for extension of time for furnishing security moved by the respondents was dismissed by the trial court vide order dated 1-11-1993 and revision preferred by the respondents against the order dated 1-11-1993 passed by the trial court also came to be dismissed, permitted Respondents 1 to 4 to furnish security and accepted the same on totally misconceived and unfounded grounds. The entire approach of the trial court is totally perverse and misconceived and, therefore, the impugned order in my opinion, is devoid of substance and de hors the provisions of Or. 39 R. 11(1) of the Civil Procedure Code.
19. For the reasons stated hereinabove, the impugned order dated 25-4-1995 passed by the trial court is set aside and defence of Respondents 1 to 4 is hereby struck off.
20. The appeal against order is allowed. No order as to costs.