NATIONAL SPIRITUAL ASSEMBLY OF THE BAHA'I'S OF INDIA Vs CYRUS G. MAZKOORI & ORS.

3. By this Petition under Articles 226 and 227 of the Constitution of India, the petitioner (original defendant No.2) has challenged the judgment and order dated 07.06.2011 below exhibit-104 as also the judgment and order dated 05.03.2012 below exhibit-164 passed by the learned 11^thJoint Civil Judge, Junior Division, Pune in Regular Civil Suit No.820 of 2007. By order dated 07.06.2011, the learned trial Judge partly allowed the application made by the respondent No.1 (original plaintiff) and struck out the written statement to the extent of defence of the petitioner. The petitioner filed an application, exhibit-164, under Section 114 read with Order 47, Rule 1 of the Code of Civil Procedure, 1908 (for short 'CPC') for reviewing, recalling and setting aside the order dated 07.06.2011 below exhibit-104 as also for reinstating the written statement filed by the petitioner. By order dated 05.03.2012, the learned trial Judge rejected the application. The parties shall hereinafter be referred to as per their status in the trial Court. The relevant and material facts that are necessary for the disposal of the Petition briefly stated, are as under:

4. It is the case of the petitioner (original defendant No.2) that it is a society registered under the Societies Registration Act, 1860 and is in charge of administering the religious affairs of the members of the Baha'i Faith in India. Respondent No.1 (original plaintiff) was on membership rolls of the Baha'i community maintained by the respondent No.3 (original defendant No.3) until his name was struck off from the roll of membership of the Baha'i community. Respondent No.2 (original defendant No.1) is the apex body of the Baha'i community having precedence, jurisdiction and dominion over the defendant No.2 and is in charge of administering the religious affairs of the members of the Baha'i Faith, world over. Respondent No.3 (original defendant No.3) is the Local Spiritual Assembly, which is in charge of administering the religious affairs of the Baha'is in Pune.

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5. It is the case of the defendant No.2 that on account of complete ignorance of / disrespect to the functioning of Baha'i administration as also because of the behaviour and attitude of the plaintiff undermining the authority of the fundamental beliefs of the community, he was removed from the rolls of the membership of the Baha'i in or about May 2007 by the defendant No.1. The plaintiff instituted Suit No.820 of 2007 before the Civil Judge Senior Division, Pune challenging removal of his name from the membership rolls. Defendant Nos.2 and 3 filed written statement resisting the Suit. Initially, the plaintiff did not implead the defendant No.1 as a party to the Suit. On the application made by the plaintiff, the defendant No.1 was impleaded in pursuance of the order dated 16.06.2009. The plaintiff filed application, exhibit-80 on or about 01.07.2009 for direction to the defendant no.2 to submit a certified copy of the Constitution of the defendant No.1. By order dated 01.02.2010, the learned trial Judge allowed the application made by the plaintiff and directed the defendant No.2 to furnish the complete set of duly certified copy of the Constitution of defendant No.1

6. It is the case of the defendant No.2 that not being in immediate possession of a certified copy of the Constitution of defendant No.1, it had submitted the authorized copy thereof vide Purshis, exhibit-119, on 08.04.2010, and thus there was a substantial compliance of the order dated 01.02.2010. The plaintiff thereafter filed an application, exhibit- 104, for striking out the defence of the defendant Nos.2 and 3. The application was resisted by the defendant Nos.2 and by the impugned order dated 07.06.2011, the learned trial Judge partly allowed the application and struck out the written statement to the extent of defence of the defendant No.2. Defendant No.2 thereafter filed application, exhibit-164 on 12.07.2011 under Section 114 read with Order 47 Rule 1 of the CPC. By order dated 05.03.2012, the learned trial Judge rejected the application. It is against these orders, the defendant No.2 has

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instituted the present Petition.

7. In support of this Petition, Ms Srikrishna strenuously contended that by order dated 16.06.2009, the defendant No.1 was impleaded as party defendant in the Suit. On 01.07.2009, the plaintiff filed application for issuing direction to the defendant No.2 to file a complete set of duly certified copy of the Constitution of the defendant No.1. She submitted that when the defendant No.1 was very much before the Court, the plaintiff ought to have sought direction against the defendant No.1 for production of the certified copy of its Constitution. In any case, the defendant No.2 had filed authorized copy of the Constitution of the defendant No.1 vide Purshis, exhibit-119 on 08.04.2010, and thus, there was a substantial compliance of the order dated 01.02.2010. She further submitted that the decision of the learned Single Judge of this Court in the case of Ratnakar D. Patade Vs. Smita Pandurang Dalvi,

1996 (1) Mah.LJ 76 which held that provisions of Order 39 Rule 11(1) of the CPC are mandatory and not directory has been overruled subsequently by the Division Bench of this Court in the case of Ramavatar Surajmal Modi Vs. Mulchand Surajmal Modi, AIR 2004 Bombay 212. She also submitted that striking out the defence in the Suit is a drastic step and the defence should not be struck out merely because the defendant has failed to produce a document. In support of this proposition, she relied upon the decision of this Court in the case of Z.P., A'Bad Vs. Punarjanma Rewinders, 2006 (6) Mh.L.J. 661. She, therefore, submitted that the impugned order dated 07.06.2011 cannot be sustained and deserves to be quashed and set aside.

8. Insofar as the impugned order dated 05.03.2012 below exhibit- 164 is concerned, she submitted that undoubtedly the defendant No.2 made application under Section 114 read with Order 47 of the CPC for reviewing the order dated 07.06.2011. However, under Order 39, Rule

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11(2), the Court, on sufficient cause being shown and on such terms and conditions as it may deem fit to impose, has power to restore the suit or proceeding or may hear the party in defence, as the case may be, if the party that has been responsible for the default or contravention or breach as aforesaid makes amends for the default or contravention or breach to the satisfaction of the Court. In other words, she submitted that since the defendant No.2 had submitted authorized copy of the Constitution vide exhibit-119 on 08.04.2010, the Court ought to have exercised power under Order 39 Rule 11(2) if not under Section Section 114 read with Order 47 of the CPC. She, therefore, submitted that the order dated 05.03.2012 is also liable to be quashed and set aside.

9. Per contra, the plaintiff who appeared in person supported the impugned orders. He submitted that defendant Nos.2 and 3 have filed common written statement resisting the Suit filed by him. By the order dated 07.06.2011, the learned trial Judge has partly allowed the application made by him and struck out the written statement to the extent of defence of the defendant No.2. In other words, he submitted that his application against striking out the defence of the defendant No.3 was rejected thereby defence of the defendant No.3 has remained intact. Since defendant Nos.2 and 3 have filed common written statement and by order dated 07.06.2011, the defence of the defendant No.2 is only struck out, no prejudice is caused to the defendant No.2. He, therefore, submitted that no interference is called for.

10. He further submitted that defendant Nos.2 and 3 have not approached the Court with clean hands and have suppressed the material facts. He invited my attention to the photocopy of the Constitution of the defendant No.1 filed by defendant Nos.2 and 3 along with their written statement. He submitted that the photocopy was not a complete set of the Constitution of the defendant No.1. Many pages such as page

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Nos.2, 6, 7, 12, 13 and thereafter were missing. Defendant Nos.2 and 3 have deliberately filed incomplete Constitution of the defendant No.1 in order to confuse and misguide the Court. It is in these circumstances, he was required to file application, exhibit-80 on 01.07.2009 for seeking direction against the defendant No.2 to file a complete set of duly certified copy of the Constitution of the defendant No.1. By order dated 01.02.2010, the learned trial Judge allowed the application and directed the defendant No.2 to furnish the complete set of duly certified copy of the Constitution of the defendant No.1. The said order was not challenged by any of the defendants. Pursuant to that order, the plaintiff had forwarded demand draft towards the expenses of the certified copies of the Constitution of the defendant No.1 and further undertook to pay the balance amount, if any. He invited my attention to the application, exhibit-163, made by defendant Nos.2 and 3 on 12.07.2011 for taking the matter on Board and without issuing notice to the plaintiff, the said application was taken on Board. In these circumstances, he was constrained to file Miscellaneous Civil Application No.493 of 2011 under Section 24 of the CPC for transfer of the Suit to any other Court. Pending that application, the learned trial Judge partly allowed the application by order dated 07.06.2011 and the review application preferred by the defendant No.2 was rejected on 05.03.2012. The plaintiff has also tendered written notes of arguments during the course of hearing. He, therefore, submitted that no case is made out for invocation of extra-ordinary jurisdiction under Articles 226 and 227 of the Constitution of India.

11. I have considered the rival submissions made by the learned Counsel appearing for the parties. I have perused the material on record as also the written notes of arguments filed by the plaintiff. In paragraph 8 of the impugned order dated 07.06.2011, the learned trial Judge recorded that despite sufficient opportunities being given to the

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defendant No.2, it failed to file the complete set of certified copy of the Constitution of the defendant No.1. In paragraph 9, the learned trial Judge observed that the defendant Nos.2 and 3 have filed Purshis, exhibit-119 and along with that Purshis, they had filed photocopy of Constitution of the defendant No.1 on 08.04.2010 in two sets. Defendant Nos.2 and 3 have not filed duly certified copy of the Constitution of the defendant No.1. The learned trial Judge thereafter extracted head-notes

(A) and (B) from the judgment of Ratnakar Patade (supra) on which the plaintiff had relied. In paragraph 10, the learned trial Judge held that despite the order dated 01.02.2010 below exhibit-80, the defendant No.2 committed default by not supplying duly certified copy of the Constitution of the defendant No.1. Under these circumstances, defence of the defendant No.2 is liable to be struck out. The learned trial Judge, however, has not considered whether this is a substantial compliance of the order dated 01.02.2010. In fact, the learned trial Judge held that since the defendant No.2 did not supply duly certified copy of the Constitution of defendant No.1, it had committed default, and therefore, the defence of defendant No.2 is liable to be struck out. Ms. Srikrishna relied upon the decision of this Court in the case Z.P. A'bad (supra), and in particular paragraph 6 thereof.

12. The learned trial Judge has also not given finding as to whether provisions of Order 39 Rule 11 of the CPC are mandatory or directory. However, from the perusal of the findings, it is apparent that the learned trial Judge held that since the defendant No.2 committed default by not supplying duly certified copy of the Constitution of the defendant No.1 despite the order dated 01.02.2010 below exhibit-80, the defence of the defendant No.2 is liable to be struck out. In other words, the learned trial Judge proceeded on the premise that the provisions of Order 39 Rule 11 are mandatory and not directory. Ms Srikrishna relied upon the decision of the Division Bench of this Court in Ramavatar Modi's case

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(supra) wherein the Division Bench has specifically overruled the decision of the learned Single Judge in Ratnakar Patade's case (supra). The Division Bench considered the judgments of the Apex Court in the case of M/s. Babbar Sewing Machine Co. Vs. Tirlok Nath Mahajan, AIR 1978 SC 1436 dealing with power of the Court to dismiss the Suit or strike out the defence under Order 11 Rule 21 as also in the case of Bimal Chand Jain Vs. Gopal Agarwal, AIR 1981 SC 1657

dealing with Order 15 Rule 5(2) of the CPC as amended in U.P. It was observed in paragraph 11 that the view of the two learned Single Judges in Ratnakar Patade and Smt. Asha M. Joshi to the effect that Order 39, Rule 11(1) of the CPC is mandatory cannot be held to be laying down the correct position of law. Paragraph 11 reads as under:

"11. Applying the aforesaid observations and reasoning of the Supreme Court in M/s. Babbar Sewing Machine Co. with regard to Order 11, Rule 21 of the Code of Civil Procedure and Bimal Chand Jain with regard to Order 15, Rule 5 of the Code of Civil Procedure as amended in U.P. in our considered opinion, the provision contained in sub-rule (1) of Rule 11 of Order 39 applicable in Maharashtra is directory and we hold accordingly. The view taken by the two learned single Judges in Ratnakar D. Patade and Smt. Asha M. Joshi to the effect that Order 39, Rule 11(1) of Code of Civil Procedure is mandatory cannot be held to be laying down the correct position of law and we overrule the said decisions."

13. In the case of Z.P.A'bad (supra), it was observed in paragraph 6 as under:

"6. I have perused the order passed by the trial Court on 16.1.2006 as also the orders passed by the Court on 3.2.2006 and 4.7.2006, which are impugned in this appeal. The provisions of Order 39, Rule 11 of Code of Civil Procedure are also perused. Order 39 of the Code of Civil Procedure deals with the matters relating to temporary injunction and interlocutory orders which are referred to in Order 39. The provisions of Order 39 code of Civil Procedure deal with temporary injunctions, consequences of disobedience or breach of injunctions, power to order interim sale, detention, preservation, inspection, etc. of subject matter of suit, directions to put a person in immediate possession of land which is the subject matter of suit, deposit of any money in the Court etc. Rule 11 of Order 39 stipulates that when 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 the proceeding or where any party to a suit or proceeding gives any undertaking to the Court to do or restrain

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from doing a thing during pendency of the suit or proceedings and such party commits any default or contravenes such order or commits a breach or such undertaking, the Court may dismiss the suit or proceeding if the breach is committed by the plaintiff or strike out the defence if the breach or default is committed by the defendant / opponent. The words "to do or not to do a thing during pendency of a suit or proceeding" would not be referable to each and every direction which is issued by the trial Court under the provisions of the Code of Civil Procedure. The phraseology used in Rule 11 of Order 39 of code of Civil Procedure would be normally referable to an act which is directed to be done under the provisions of Order 39 of the Code of Civil Procedure. The directions which can be issued or the interlocutory orders which can be passed by the Court under the provisions of Order 39 of the Code of civil Procedure are already enumerated hereinabove. In the instant case, the trial Court had, by an order dated 16.1.2006, directed the appellant Zilla Parishad, Aurangabad to produce certain documents of which a notice to produce the documents was filed on behalf of the plaintiff. The appellant Zilla Parishad, Aurangabad was not able to produce those documents before the Court on the date which was specified in the order. Non-production of the documents, which are directed to be produced in pursuance of a notice, would not entail or result into consequences which are provided under the provisions of Order 39 Rule 11 of the Code of civil Procedure. The drastic step of striking out the defence of the defendant or the opponent could not be taken merely because the defendant has failed to produce a document which was directed to be produced by the Court. Normally, failure to produce a document which is directed to be produced, would at the most result in drawing an adverse inference against the party who fails to produce it thereby resulting in an advantage to the other party at whose instance the document was sought to be produced on record. However, the Court cannot exercise the jurisdiction under Rule 11 of Order 39 of the Code of Civil Procedure in such a case for either dismissing the suit of the plaintiff or striking out the defence of the defendant or the opponent. To hold that the powers under Order 39 Rule 11 of the Code of Civil Procedure could be invoked in such a case would result in drastic consequences."

I do not find any merit in the submission of the plaintiff that no interference is called for at the hands of this Court as no prejudice is caused to the defendant No.2. Striking out the defence is a drastic step and serious consequences flow therefrom. The learned Single Judge in the case of Z.P. A'bad (supra) has held that the drastic step of the striking out the defence of the defendant could not be taken merely because the defendant had failed to produce a document, which was directed to be produced by the Court. Normally, failure to produce the document, which is directed to be produced, would at the most result in drawing an

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adverse inference against the party who fails to produce it thereby resulting in an advantage to the other party at whose instance the document was sought to be produced on record. The Court cannot exercise the jurisdiction under Order 39 Rule 11 of the CPC in such a case for either dismissing the suit of the plaintiff or striking out the defence of the defendant or the opponent. The learned trial Judge also committed serious error in proceeding on the premise that the provisions of Order 39 Rule 11 are mandatory and not directory. I am, therefore, of the opinion that the learned trial Judge committed serious error in passing the impugned order dated 07.06.2011 and the same is liable to be quashed and set aside.

14. Insofar as the order dated 05.03.2012 is concerned, it is no doubt true that the defendant No.2 filed application under Section 114 read with Order 47 of the CPC for reviewing the order dated 07.06.2011. Nonetheless, independent of the said provisions, under Order 39 Rule 11(2), the Court, on sufficient cause being shown and on such terms and conditions as it may deem fit to impose, has power to restore the suit or proceeding or may hear the party in defence, as the case may be, if the party that has been responsible for the default or contravention or breach as aforesaid makes amends for the default or contravention or breach to the satisfaction of the Court. Even in the first order dated 07.06.2011, the trial Court did not record whether the defendant Nos.2 and 3 have made substantial compliance of order dated 01.02.2010 by filing two sets of photocopies of the Constitution of the defendant No.1 wide exhibit-119 on 08.04.2010. The learned trial Judge did not record any finding as to whether the said photocopies were authorized copies or not. Equally, in the subsequent order dated 05.03.2012, the learned trial Judge merely proceeded on the footing that there is no mistake or error apparent on the face of the record. Since the order dated 07.06.2011 itself cannot be sustained, the order dated 05.03.2012 also for the same

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reasons cannot be sustained and is also liable to be quashed and set aside.

15. In the result, the Petition succeeds. The impugned orders dated 07.06.2011 below exhibit-104 and dated 05.03.2012 below exhibit-164 passed by the learned trial Judge in R. C. S. No.820 of 2007 are quashed and set aside. The application, exhibit-104 made by the plaintiff on 01.07.2009 stands dismissed.

16. Rule is made absolute in terms of prayer clause (a) with no order as to costs.

(R. G. KETKAR, J.)

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Minal Parab

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