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Case Number

Suit No. 422 of 1974

Attorney(S)

Sujit Sinha
Mrs. Ruma Pal

Judges

Mrs. Pratibha Bonnerjea, J.

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Smart Summary

Summary of Opinion

Factual and Procedural Background

The plaintiff instituted a suit against defendants Nos. 1 and 2 for recovery of Rs. 7,941.70, interest and costs. The suit was settled with defendant No. 1. Defendant No. 2 filed a written statement denying the plaintiff's claims. On 29-3-77 the learned Master ordered both parties to file affidavits of documents by 2-5-77; neither party complied. The plaintiff filed its affidavit on 2-2-78. On 26-6-78 the plaintiff applied to the Master for an order directing defendant No. 2 to file its affidavit of documents and, in default, to strike out its defence. Notice of that application was received by defendant No. 2. On 6-7-78 the learned Master passed an order (in presence of defendant No. 2's Advocate on Record) directing the defendant to file its affidavit within a fortnight and assessing costs of Rs. 44/- to be paid to the plaintiff; the petition's prayer (c) provided that failure to file the affidavit within the time would result in striking out the defence and placing the suit in the undefended list.

Defendant No. 2 did not file the affidavit within the time allowed; its defence was struck out and the suit was placed in the undefended list. Defendant No. 2 then filed the present application seeking a stay of hearing, leave to file the affidavit of documents, restoration of its defence, and related reliefs. The defendant alleged communications between its Advocate on Record and its representatives, and explained that the affidavit was prepared only on 11-8-78, after the expiry of the stipulated time. The Master-order's default clause became operative on 28-7-78.

Legal Issues Presented

Whether the defendant No. 2's defence, struck out for failure to file the affidavit of documents within the time fixed, should be restored given the circumstances presented.
Whether the order dated 6-7-78 (directing filing within a fortnight and providing for striking out in default) was beyond the Master's jurisdiction because it was a composite application under Order XI, Rule 21 of the CPC after the 1976 amendment.
Whether the Court could invoke its inherent jurisdiction (Section 151 CPC) or powers under Chapter XXXVIII, Rule 46 of the O.S. Rules to extend time and treat the present application as a fresh application (and the earlier order as a fresh order under O. 11, R. 18), effectively setting aside or neutralising the 6-7-78 order without an appeal under Order 43, Rule 1(f) CPC.
Whether the defendant's failure to comply amounted to wilful default such as to justify striking out the defence.

Arguments of the Parties

Defendant No. 2 (Applicant) — submissions by Mr. Sujit Sinha

The plaintiff's application to the Master was a composite application for discovery and for striking out the defence; after the 1976 amendment to the Code, no such composite application would lie under Order XI, Rule 21 of the CPC, and therefore the learned Master had no jurisdiction to pass the order dated 6-7-78.
If the Master's order was beyond jurisdiction, the petitioner should have preferred an appeal under Chapter 6, Rule 15 of the O.S. Rules or under Order 43, Rule 1(f) CPC; admittedly no appeal was filed.
The petitioner did not object to the maintainability of the plaintiff's petition before the Master despite receipt of notice and the order was passed in presence of the petitioner's Advocate on Record.
Unless there was wilful default by the petitioner in carrying out the order for discovery, the defence should not and could not be struck out; the petitioner relied on AIR 1932 Bom 271 and (1885) 31 Ch D 478 in support of this proposition.
Alternatively, the Court has jurisdiction under Section 151 CPC and Chapter XXXVIII, Rule 46 of the O.S. Rules to extend time and to treat the present application as a fresh application, and the order would be a fresh order under O.11, R.18 CPC.

Plaintiff / Respondent — submissions by Mrs. Ruma Pal

The facts demonstrate glaring wilful default by the petitioner: the order of 6-7-78 came to the petitioner's knowledge by 10-7-78, yet no steps were taken until 11-8-78, despite counsel and a Calcutta representative being available to act.
If the defendant had informed the plaintiff's Advocate on Record in time that it would disclose no documents, the order could have been suitably modified by mentioning the matter before the learned Master.
Relied on AIR 1932 Bom 271 (the same case relied upon by Mr. Sinha) to show that where a party disobeys an order to produce documents and there is evidence the solicitor explained consequences, the default may be held wilful and relief refused.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
AIR 1932 Bom 271 (also cited with (1885) 31 Ch D 478)	Shows that where a party disobeys an order to produce documents and there is evidence the solicitor explained the effect of the order and consequences, the default may be held wilful and the defence/judgement may not be set aside.	The court accepted that the facts of the present case amounted to wilful default and relied on this authority to support striking out the defence for such default.
(1885) 31 Ch D 478	Referenced (together with AIR 1932 Bom 271) in support of the principle that absence of wilful default is required before relief is granted.	Cited by parties; the court treated the Bom. case (which references this authority) as supporting the finding of wilful default in the present facts.
(1970) 1 SCC 732 : AIR 1970 SC 997 (Nain Singh v. Koonwargie)	Holds that inherent jurisdiction under Section 151 CPC must be exercised subject to specific Code provisions; if the Code provides a remedy, that remedy must be followed and inherent jurisdiction cannot be used as an appellate power.	The court relied on this authority to reject the applicant's plea to invoke inherent jurisdiction to neutralise the effect of the appealable order dated 6-7-78 — i.e., the court could not use Section 151 to act as an appellate forum.
AIR 1962 SC 527 (Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal)	States that while S. 151 affirms inherent jurisdiction, that jurisdiction cannot be exercised so as to nullify express provisions of the Code; where the Code deals expressly, the provisions are normally exhaustive.	The court cited this authority to reinforce that it could not use inherent jurisdiction to set aside or nullify the earlier order in circumstances where the Code provided an appeal remedy.

Court's Reasoning and Analysis

The court proceeded in two principal stages: (a) assessment of whether the defendant's default was wilful, and (b) whether the court could entertain the present application invoking inherent powers to undo an earlier appealable order.

On wilful default, the court accepted the respondent's submissions and found that the petitioner was guilty of wilful default. The chronology showed the 6-7-78 order came to the petitioner's notice by 10-7-78, yet no steps were taken until 11-8-78; despite having an Advocate on Record and a Calcutta representative, the petitioner neither filed the affidavit in time nor informed the plaintiff's Advocate on Record that no documents would be disclosed. The court treated these facts as amounting to wilful default and relied on the example in AIR 1932 Bom 271 to support that conclusion.

On the question of relief by way of extension of time or restoration of defence, the court analyzed the applicant's request to invoke Section 151 CPC and Chapter XXXVIII, Rule 46 of the O.S. Rules (to treat the application as fresh and the earlier order as a fresh order under O.11, R.18). The court rejected this approach for the following reasons:

The order of 6-7-78 was an appealable order under Order 43, Rule 1(f) CPC, yet no appeal was preferred by the petitioner; consequently the order became final and binding on the petitioner.
The court cited Nain Singh v. Koonwargie ((1970) 1 SCC 732 : AIR 1970 SC 997) to emphasize that inherent jurisdiction under Section 151 must be exercised subject to the Code's specific provisions and cannot be used where the Code provides an alternative remedy; it cannot be treated as appellate power.
The court further relied on Manohar Lal Chopra (AIR 1962 SC 527) for the proposition that inherent jurisdiction cannot be used to nullify express provisions of the Code, and where the Code deals expressly with a matter those provisions should be regarded as exhaustive.
Accordingly, granting the relief prayed would have the effect of setting aside the 6-7-78 order and would amount to exercising inherent jurisdiction as an appellate power — which the court was disallowed from doing by binding authority.

For these reasons, the court concluded that it had no jurisdiction to entertain the present application insofar as it sought to neutralise or set aside the earlier appealable order.

Holding and Implications

Holding: The application by defendant No. 2 is DISMISSED (the opinion states "Application dismissed" and "This application is dismissed with costs.").

Implications:

Direct effect: The order dated 6-7-78 stands; the defence of defendant No. 2 remains struck out and the suit's placement in the undefended list was not disturbed by this application.
Procedural principle applied: The court affirmed that inherent jurisdiction under Section 151 CPC cannot be invoked to nullify or act as an appellate forum in respect of an appealable order when the party has neglected to pursue the statutory remedy (i.e., an appeal under Order 43, Rule 1(f) CPC).
No broader change in law was declared by the court; the decision applied existing precedents to the facts and dismissed the application with costs.

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Balmer Lawrie And Company Ltd. v. Assam Brook Estates Ltd. And Another

1. This is an application by the defendant No. 2 for stay of hearing of the suit, leave for filing the affidavit of documents, for an order, restoring the defence in the suit etc. The plaintiff had instituted the suit against the defendants Nos. 1 and 2 for recovery of Rs. 7,941.70, interests and costs. The suit was settled with the defendant No. 1. The defendant No. 2 filed its written statement denying the plaintiff's claims. On 29-3-77, the learned Master passed an order directing the plaintiff and the defendant No. 2 to file their respective affidavit of documents by 2-5-77. None of the parties complied with the said order. The plaintiff, thereafter, filed its affidavit of documents on 2-2-78. On 26th June, 1978, the plaintiff took out an application before the learned Master for an order against the defendant No. 2 for filing its affidavit of documents and for striking out the defence in default. The notice of that application was duly received by the defendant No. 2. On 6-7-78, in presence of the said defendant's Advocate on Record the learned Master passed the following order:—

“Order made in terms of prayers (a), (b) and (c) of the summons save and except that the defendant No. 2 do file its affidavit of documents within a fortnight from date. Assessed Costs of Rs. 44/- to be paid to the plaintiff before filing the affidavit.”

2. The prayer (c) of the petition referred to in the said order was as follows:—

“In default of filing the affidavit within the time allowed by this Hon'ble Court the defence of the defendant No. 2 be struck out and the suit be placed in the list of undefended suit for hearing.”

3. The defendant No. 2 did not file the affidavit of document in time and as such the defence was struck out and the suit was placed in the undefended list. The defendant No. 2 thereafter took out the present application. In the petition it has been alleged that its Advocate on record duly communicated the order dated 6th July, 1978 to the defendant No. 2 who by its letter dated 10-7-1978 informed the said Advocate on record that the petitioner did not want to disclose any document. The petitioner has a representative in Calcutta by the name of Sri Pannalai Dutta Roy. It was alleged in the petition that the Advocate on record informed this Calcutta representative on 13-7-78 that the affidavit of documents would be made ready and he would be informed about the same. The affidavit was in fact made ready on 11-8-78 long after the expiry of the time. All that the defendant No. 2 had to do was to intimate the plaintiff's Advocate on Record that no document would be disclosed and that should have been done before the expiry of time. But nothing was done, the default clause became operative on expiry of 28-7-78, the defence was struck off and the suit was transferred to the undefended list. Mr. Sujit Sinha, appearing on behalf of the petitioner, submitted that the plaintiff's application before the learned Master was a composite application for discovery and for striking out the defence in default. According to him, no such composite application would lie under O. 11, R. 21 of the CPC after the Code of Civil Procedure was amended in 1976 and as such the learned Master had no jurisdiction to pass the order dated 6-7-78. If so, the petitioner, should have preferred an appeal under Ch. 6. R. 15 of the O.S Rules or under O. 43, R. 1(f) of the CPC. Admittedly no such step was taken by the petitioner. Moreover, the petitioner did not take any objection to the maintainability of the petition before the learned Master in spite of receipt of the notice of the said application in time. The order dated 6-7-78 was passed in presence of its Advocate on record. Mr. Sinha, thereafter submitted, that unless there was a wilful default by the petitioner in carrying out the order of discovery, the defence should not be and/or could not be struck out. He relied on AIR 1932 Bom 271 at p. 272 and (1885) 31 Ch D 478 in support of his aforesaid contentions. Nobody will dispute this proposition. But Mrs. Ruma Pal, appearing on behalf of the respondent, submitted that the facts of this case would prove glaring wilful default on the part of the petitioner. The order of 6-7-78 came to its knowledge within 10-7-78 but no step was taken by the petitioner up to 11-8-78 knowing fully well the consequence of the default clause in the order. The petitioner has an Advocate on record in Calcutta and a Calcutta representative. In spite of all these advantages, the petitioner could not file its affidavit in time, nor informed the plaintiff's Advocate on record in time that the defendant No. 2 would not disclose any document. If the defendant was informed in time the order dated 6-7-78 could have been suitably modified by mentioning the matter before the learned Master.

4. The aforesaid facts amounted to wilful default and in support of her contention she also relied on AIR 1932 Bom 271 - the very same case relied on by Mr. Sinha. According to Mrs. Pal the facts of the said case are similar to that of this present case. In that case, the party was held to be guilty of wilful default and his defence was struck out, Mrs. Pal invited my attention to page 272 of the report.

“the defendant to an action disobeyed an order to produce documents for inspection. Her defence was struck out and judgement given against her in default of a defence. There was evidence that her solicitor had explained to her the effect of the order for production and the consequence of disobeying it. The defendant took out a notice under O. 27, R. 15, for setting aside the judgement and for extending the time for production of the documents. The Court held the default was wilful and refused to set aside the judgement.”

5. I accept the submission of Mrs. Pal and hold that the petitioner is guilty of wilful default.

6. Mr. Sinha thereafter, submitted that the Court has jurisdiction under Section 151 of the CPC as well as under Chap. XXXVIII, R. 46 of the O.S Rules to extend time to file the affidavit of document by treating this application as a fresh application and the order passed would also be treated as a fresh order under O. 11, R. 18 of the CPC.

7. I am unable to accept the above submission of Mr. Sinha. The order dated 6-7-78 was an appealable order under O. 43, R. 1(f) but the petitioner did not prefer any appeal therefrom. The result is that the order has become final and binding on the petitioner. The inherent power of Court cannot be invoked for neutralising the effect of the order dated 6-7-78. In (1970) 1 SCC 732 : AIR 1970 SC 997 at p. 998 (Nain Singh v. Koonwargie) it has been held as follows:—

“Inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. In other words the Court cannot make use of the special provisions of S. 151 of the Code where a party had his remedy provided elsewhere in the Code and he neglected to avail himself of the same. Further the power under S. 151 of the Code cannot be exercised as an appellate power.”

8. Mr. Sinha is asking the Court to use the inherent power to restore the defence and extend time for filing affidavit of documents, unless the Court sits on appeal over the order dated 6-7-78, none of the prayer in the petition can be granted. Mr. Sinha, in fact is asking the Court to use the inherent power as an appellate power which is completely disapproved by the Supreme Court.

9. In AIR 1962 SC 527 (Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal) the Supreme Court held at page 537:—

“Inherent jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed by S. 151 of the Code, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provisions should normally be regarded as exhaustive.”

10. Any order passed on this application in terms of the prayer in the petition will have the effect of setting aside the order dated 6-7-78 and would amount to exercising inherent power as an appellate power. In view of this I have no jurisdiction to entertain this application as the same is misconceived. In the premises, this application is dismissed with costs.

11. Application dismissed.

Balmer Lawrie And Company Ltd. v. Assam Brook Estates Ltd. And Another

Summary of Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Defendant No. 2 (Applicant) — submissions by Mr. Sujit Sinha

Plaintiff / Respondent — submissions by Mrs. Ruma Pal

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Balmer Lawrie And Company Ltd. v. Assam Brook Estates Ltd. And Another

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