Rajasthan High Court - Jodhpur
Chandrakala vs Ghanshyam Singh (2025:Rj-Jd:4420) on 23 January, 2025
Author: Rekha Borana
Bench: Rekha Borana
[2025:RJ-JD:4420]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 988/2025
Chandrakala W/o Sh. Jagdish Singh, Aged About 71 Years,
Resident Of Gehloton Ka Bas, Magra Punjla, District- Jodhpur
(Raj.).
----Petitioner
Versus
1. Ghanshyam Singh S/o Sh. Jagdish Singh, R/o Gehloton
Ka Bas, Magra Punjla, District- Jodhpur (Raj.).
2. Padam Singh S/o Sh. Jagdish Singh, Adopted S/o Sh.
Tulsiram, R/o Gehloton Ka Bas, Magra Punjla, District-
Jodhpur (Raj.).
3. Bhanwari W/o Sh. Jagdish Singh, R/o Gehloton Ka Bas,
Magra Punjla, District- Jodhpur (Raj.).
4. Jagriti W/o Sh. Tejkaran, R/o Gehloton Ka Bas, Magra
Punjla, District- Jodhpur (Raj.).
----Respondents
For Petitioner(s) : Mr. Nishit Shah
HON'BLE MS. JUSTICE REKHA BORANA
Order
23/01/2025
1. The present writ petition has been filed against the order
dated 08.10.2024 passed by the Additional District Judge No.4,
Jodhpur Metropolitan in Civil Original Suit No.38/2019 whereby
the defence of defendant No.3 has been struck out in terms of
Order 11 Rule 21, CPC.
2. The learned Trial Court proceeded on to pass the order
impugned on the premise that defendant No.2 did not comply with
the order dated 20.04.2024 despite opportunities been granted on
29.04.2024 and 09.05.2024.
[2025:RJ-JD:4420] (2 of 4) [CW-988/2025]
3. Vide order dated 20.04.2024, defendant No.3 was directed
to place on record the power of attorney dated 27.06.1988 and
the sale deed dated 11.12.2013. However, defendant No.3 failed
to place on record the said documents and hence, the defence was
struck out.
4. A bare perusal of the order impugned dated 08.10.2024
reflects that the said order has been passed by the Court suo
motu and no application in terms of Order 11 Rule 21, CPC was
filed on behalf of the plaintiff.
5. Order 11 Rule 21 read with Section 151, CPC provides as
under:
"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."
6. A bare perusal of the above provision makes it clear that it is
only on an application filed on behalf of the party seeking
discovery or inspection of any document that an order to the
effect of striking out defence of the defendant, can be passed.
Further, on such an application being filed, the Court is under an
obligation to serve notice on the party and only after affording an
opportunity of being heard, can pass an order to strike the
defence. Evidently, the learned Trial Court has not complied with
[2025:RJ-JD:4420] (3 of 4) [CW-988/2025]
any of the mandatory requirements as provided under Order 11
Rule 21, CPC.
7. In the specific opinion of this Court, without there being any
application in terms of the said provision having been filed by the
plaintiff with the relief for defence of defendant No.3 being struck
off, the learned Trial Court could not have suo motu exercised the
said power and that too, without any opportunity of hearing to
defendant No.3 as to why his defence should not be struck off.
8. Further, as held by the Full Bench judgment of the Hon'ble
Apex Court in Babbar Sewing Machine Company vs. Trilok
Nath Mahajan; (1978) 4 SCC 188, the stringent provisions of
Order 11 Rule 21, CPC should be applied by the Courts in extreme
cases where the contumacy on the part of the defendants on a
wilful attempt to disregard the order of the Court is established
and proved on record. Therein, the Court held that the penalty
imposed in terms of Order 11 Rule 21, CPC being of penal in
nature, ought to be used only in extreme cases.
9. Herein, the order impugned has evidently been passed
without any opportunity of hearing been granted to defendant
No.3.
10. In view of the above observations, the present revision
petition is disposed of while quashing and setting aside the order
dated 08.10.2024.
11. However, the plaintiffs would be at liberty to move an
application under Order 11 Rule 21, CPC if they so desire and the
learned Trial Court shall be under an obligation to proceed in
accordance with law if such application is now filed.
[2025:RJ-JD:4420] (4 of 4) [CW-988/2025]
12. The present order has been passed by this Court without
issuing notices to the respondents, in exercise of extraordinary
jurisdiction under Article 226 of the Constitution of India, keeping
into consideration the fact that keeping the present petition
pending after staying the further proceedings, would be against
the interests of the respondent-plaintiffs only.
13. However, if the respondents-plaintiffs wish to contest the
present writ petition, they would be at liberty to get the present
writ petition restored and pray for recalling of the present order. In
that event, further proceedings in Civil Original Suit No.38/2019
pending before the Additional District Judge No.4, Jodhpur
Metropolitan shall remain stayed.
14. Stay petition and pending applications, if any, stand
disposed of.
(REKHA BORANA),J
352-KashishS/-
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