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Board Of Trustees Of The Port Of Bombay v. Uco Bank, Singapore & Ors.
Factual and Procedural Background
This appeal arises from an order dated 10th March, 2005, where a Single Judge dismissed the appellant's suit due to non-compliance with an order for discovery and inspection of documents. The appellant, Board of Trustees of The Port of Bombay, had agreed to grant inspection of documents within a specified time, but failed to provide inspection of two documents: (a) Bill of Lading, and (b) Invoice and Packing List of the consignee. These documents were included in the inspection order following a Notice of Motion by defendant No. 5. The Single Judge dismissed the suit under Order XI, Rule 21 of the Code of Civil Procedure for non-compliance, noting that the appellant did not file an affidavit stating non-possession of the documents nor sought modification of the inspection order despite being informed of the failure.
Legal Issues Presented
- Whether dismissal of the suit under Order XI, Rule 21 of the Code of Civil Procedure was justified due to non-compliance with an order for discovery and inspection of documents.
- Whether the appellant's failure to produce certain documents, specifically the Bill of Lading and Invoice and Packing List, constituted wilful default warranting dismissal.
- The extent to which the court should exercise its power under Order XI, Rule 21, given the appellant's explanation and subsequent affidavit filed in appeal.
Arguments of the Parties
Appellant's Arguments
- The appellant contended that the two documents for which inspection was not given were never in their possession.
- The Invoice and Packing List was not relied upon in the plaint and was not mentioned in the paragraph where inspection was demanded.
- The Bill of Lading was never in their possession as it is typically produced by the consignee or importer at the time of delivery, and in this case, the consignment was not cleared.
- The appellant admitted failure to file an affidavit before the Single Judge explaining non-possession but submitted an affidavit before the appellate court explaining this fact.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Babbar Sewing Machine Company v. Trilok Nath Mahajan (1978) 4 SCC 188 | Strict enforcement of Order XI, Rule 21 should be reserved for wilful default; dismissal or striking out is a severe remedy. | The court emphasized that dismissal under Order XI, Rule 21 requires wilful withholding of documents or information and should not be exercised lightly. |
| Khajah Assenoolla Joo v. Khajah Abdool Aziz, 1883 I.L.R 9 Cal. 923 | Order XI, Rule 21 should be used cautiously, as a last resort, only in cases of contumacy or wilful disregard of court orders. | The court referred to this precedent to underscore that the power to dismiss or strike out must be exercised only in extreme cases. |
| Banshi Singh v. Palit Singh (1908) 7 Cal.L.J 295 | Similar principle regarding cautious application of Order XI, Rule 21. | Reinforced the principle that dismissal or striking out requires serious default or contumacy. |
| Allahabad Bank Ltd. v. Ganpat Rai, AIR 1929 Lah. 750 | Supports the cautious use of Order XI, Rule 21 against parties who wilfully disobey court orders. | Used to affirm the requirement of wilful disobedience for dismissal or striking out under the rule. |
| Haigh v. Haigh (1885) 31 Ch.D 478 | Reluctance to decide cases other than on merits; Order XI, Rule 21 meant to prevent delay by negligence or wilfulness. | Cited to show judicial disinclination to dismiss suits without adequate reasons and that the order is a remedy of last resort. |
| Twyeroft v. Grant, 1975 WN 201 | Power under corresponding English rule (Order XXXI, Rule 20) to be exercised only as last resort. | Used to illustrate that such orders should be set aside if sufficient grounds are shown, emphasizing caution. |
| A.B Tamboli v. G.I.P Railway, AIR 1928 P.C 24 | Definition of "wilfully" as deliberate and intentional act, not accidental or inadvertent. | The court applied this to determine that the appellant's failure was likely inadvertent, not wilful. |
Court's Reasoning and Analysis
The court examined the appellant's failure to comply with the order for inspection of two documents. It noted that the appellant did not file an affidavit before the Single Judge to explain non-possession of the documents, nor did it seek modification of the inspection order. The Single Judge dismissed the suit under Order XI, Rule 21, which mandates dismissal for failure to comply with discovery orders unless the default is excusable.
However, the appellate court considered the affidavit filed before it, which explained that the Bill of Lading and Invoice and Packing List were never in the appellant's possession because the consignee holds these documents and the consignment was never cleared. This explanation indicated inadvertence rather than wilful default.
The court referred extensively to established precedents emphasizing that dismissal under Order XI, Rule 21 is a severe remedy to be applied only in cases of wilful default, contumacy, or obstinacy. Since the appellant's failure appeared inadvertent and genuine, the court found it appropriate to set aside the dismissal and restore the suit for trial.
Holding and Implications
The court allowed the appeal, set aside the order dismissing the suit, and restored the suit for trial before the learned Single Judge. There was no order as to costs.
The direct effect of this decision is the reinstatement of the appellant's suit for trial. The court reaffirmed the principle that dismissal under Order XI, Rule 21 should be a last resort, applied only in cases of wilful default. No new precedent was established; rather, the court applied settled law to the facts, emphasizing caution in exercising the power to dismiss suits for non-compliance with discovery orders.
Bobde S.A, J.:— Other side is served.
2. This appeal is filed by the Board of Trustees of The Port of Bombay, against the order dated 10th March, 2005 passed by a Single Judge dismissing the appellant's suit for non-compliance of discovery of inspection of documents.
3. On the defendant No. 5's Notice of Motion, the learned Single Judge of this Court, passed an order recording the appellant's no objection to grant of inspection within certain time. Thereafter, inspection was given, except two documents (a) Bill of Lading; and (b) Invoice and Packing List of the consignee. Since these two documents were mentioned in the respondents/defendants' Notice of Motion for inspection, they were included in the order for inspection. The said defendant No. 5 took out a Notice of Motion for dismissal of the appellant's suit under Order XI, Rule 21 of the Code of Civil Procedure. The learned Single Judge who heard the motion noticed the plaintiff/appellant's contention that inspection of the documents was not given because those documents were not in their possession. However, since this fact was not stated in an affidavit, the learned Single Judge apparently declined to take cognizance of this contention. The learned Single Judge also noticed that even after the defendant No. 5 had written a letter dated 15th February, 2003 pointing out that the inspection had not been given, the appellant did not apply for modification of the order on the ground that they were not in possession. The appellant did not file an affidavit stating that documents were not in its possession. In these circumstances, the learned Single Judge was constrained to dismiss the suit under Order XI, Rule 21 of the Code of Civil Procedure. Order XI, Rule 21 reads as follows:
“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.”
4. We find that, in the circumstances of the case, the learned Single Judge's order cannot be said to be vitiated by any illegality.
5. The learned Counsel for the appellant, however, points out that there were two documents of which inspection was allegedly not given. One of them i.e the Invoice and Packing List was a document which was not relied on by the appellant in the plaint at all. Infact, the learned Counsel pointed out that inspection had been demanded of the documents mentioned in paragraph 4 of the plaint and no invoice and packaging list was mentioned in paragraph 4 of the plaint. As far as the Bill of Lading is concerned, the learned Counsel fairly submitted that, it is a fact that at no point of time the appellant was in possession of the documents. They failed to file an affidavit before the learned Single Judge. The appellant has however filed an affidavit of one Santosh Vasant Dighe dated 21st March, 2009 before us. In the affidavit the appellant deponent has stated that the appellant was never in possession of the Bill of Lading and the invoice and packing list in their possession and till date they do not have those documents. The reason is stated to be the fact that a consignee or importer produces the Bill of Lading at the time of asking delivery. In the present case, since the consignment was not cleared at all, there was no reason for the appellant to come in possession of the document. In the circumstances, it appears that the appellant's plea that the documents (a) and (b) namely, Bill of Lading and Invoice packing list were never in their possession. So also according to the deponent, the plaintiff was never in possession of the invoice and packing list.
6. It appears that the contention on behalf of the appellant is genuine and in all probability the bill of lading and invoice and packing list never came into possession of the appellant. It is however, a fact that the appellant committed a serious lapse and they failed to bring the facts and the above documents to the notice of the Court. Having however, pointed out the facts to this Court in appeal, we consider it appropriate to take into account said explanation.
7. It is settled law that power under Order XI, Rule 21 of the Code of Civil Procedure ought not to be exercised lightly. In (Babbar Sewing Machine Company v. Trilok Nath Mahajan)1 reported in 1978 DGLS (soft) 183 : (1978) 4 SCC 188 : A.I.R 1978 S.C 1436, the Supreme Court observed as follows:
“14 Even assuming that in certain circumstances the provisions of Order XI, Rule 21 must be strictly enforced, it does not follow that a suit can be lightly thrown out or a defence struck out, without adequate reasons. The test laid down is whether the default is wilful. In the case of a plaintiff, it entails in the dismissal of the suit and, therefore, an order for dismissal ought not be made under Order XI, Rule 21, unless the Court is satisfied that the plaintiff was wilfully withholding information refusing to answer interrogatories or by withholding the documents which he ought to discover. In such an event, the plaintiff must take the consequence of having his claim dismissed due to his default i.e by suppression of information which he was bound to give; (Denvillier v. Myers)3, 1883 WN 58. In the case of the defendant, he is visited with the penalty that his defence is liable to be struck out and to be placed in the same position as if he had not defended the suit. The power of dismissal of a suit or striking out of the defence under 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 inexcusable delay which may cause substantial or serious prejudice to the opposite party.
15. It is well settled that 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 disregard the order of the Court is established.
16. An order striking out the defence under Order XI, Rule 21 of the Code should, therefore, not be made unless there has been obstinacy or contumacy on the part of the defendant or wilful attempt to disregard the order of the Court. The rule must be worked with caution and may be made use of as a last resort; Mulla's C.P.C 13th Ed., Vol. 1, p. 581, (Khajah Assenoolla Joo v. Khajah Abdool Aziz), 1883 I.L.R 9 Cal. 923; (Banshi Singh v. Palit Singh)4, (1908) 7 Cal.L.J 295; (Allahabad Bank Ltd. v. Ganpat Rai)5, I.L.R 11 Lah. 209 : AIR 1929 Lah. 750; (Haigh v. Haigh)6, (1885) 31 Ch.D 478 and (Twyeroft v. Grant)7, 1975 WN 201.
17. In Haigh v. Haigh (supra) Pearson, J., ob served:
“I have no hesitation in saying that I have the strongest disinclination, as I believe every other Judge has, that any case should be decided otherwise than upon its merits. But this order was introduced to prevent plaintiffs and defendants from delaying causes by their negligence or wilfulness. So great was my anxiety to relieve this lady from the consequence of her wrong headedness if, by any possibility, I could on proper terms, that I hesitated to refuse to make the order asked for, and I have looked into all the cases I could find on the subject to see what the practice of the Court has been on this order. And I can find no case in the books where it has been applied, where a man knowingly and wilfully has allowed judgment to go by default.
18. In Twyeroft v. Grant, 1875 WN 201 (supra) Lush, J. Interpreting corresponding Order XXXI, Rule 20 of the Judicature Act, held that he would only exercise the powers conferred by the rule in the last resort. In England, the party against whom such an order is made would, it seems, be entitled to come in and ask that the order might be set aside on showing sufficient grounds for such an application.”
8. The Supreme Court has further observed as under:
“20. It is settled law that the provisions of Order XI, Rule 21, should be applied only in extreme cases where obstinacy or contumacy on the part of the defendant or a wilful attempt to disregard the order of the Court is established. As pointed out by Lord Russell, C.J in (Reg. v. Senior)8, (1899) 1 QBD 283 and affirmed by Cave L.C In (A.B Tamboli v. G.I.P Railway)9, I.L.R 52 Bom. 169 : A.I.R 1928 P.C 24 “wilfully means that:
“the act is done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the act goes with it”
9. In the circumstances of the case, though the learned trial Judge cannot be said to have committed an error in dismissing the suit because the plaintiff did not grant inspection of two documents even though there was an order to that effect, it appears the circumstances in which this has happened it was inadvertent, having regard to the affidavit filed before us. We, therefore, allow the appeal, set aside the order in appeal and restore the suit for trial before the learned Single Judge. There will be no order as to costs.
10. Appeal allowed.
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