Case Note & Summary
The appellants, original defendants in a suit for easementary rights, challenged an order of the Civil Judge, Senior Division, Quepem dated 16.9.2020, which struck off their defence under Order XXXIX Rule 2A read with Rule 10 of the Code of Civil Procedure, 1908 (CPC). The respondent/plaintiff had filed a suit seeking declaration of an easementary right over a suit access, permanent injunction, and other reliefs. The trial court had earlier granted a temporary mandatory injunction on 30.7.2020, directing the defendants to allow the plaintiff to use the suit access and remove obstacles, subject to the plaintiff furnishing a bank guarantee of Rs.3,00,000/-. The plaintiff furnished the bank guarantee on 6.8.2020, which the defendants disputed. On 18.8.2020, the plaintiff filed an application under Order XXXIX Rule 2A CPC alleging violation of the injunction order. The defendants filed a reply denying the allegations and claiming that the bank guarantee was not properly furnished. Without conducting any inquiry, the trial court passed the impugned order striking off the defence. The High Court held that before passing such a harsh order, the court must conduct an inquiry to determine whether there was wilful and deliberate disobedience of its order. The trial court's observation that no inquiry was needed was contrary to settled law. The High Court set aside the impugned order and remanded the matter to the trial court for fresh consideration after conducting a proper inquiry in accordance with law. The appeal was allowed, and the civil application was disposed of.
Headnote
A) Civil Procedure - Order XXXIX Rule 2A CPC - Striking off defence - Inquiry mandatory - The trial court struck off the defence of the defendants without holding any inquiry into the allegations of disobedience of an injunction order. The High Court held that before passing such a harsh order, the court must satisfy itself that there was wilful and deliberate disobedience, which can only be determined after a proper inquiry. (Paras 9-11, 23-24)
B) Civil Procedure - Order XXXIX Rule 2A CPC - Wilful disobedience - Requirement of proof - The court must examine whether the disobedience was wilful and deliberate. Mere filing of a reply denying allegations does not dispense with the need for an inquiry. The order striking off defence was set aside and the matter remanded for fresh consideration after inquiry. (Paras 11, 23-24)
Issue of Consideration
Whether the trial court could strike off the defence of the defendants under Order XXXIX Rule 2A CPC without conducting an inquiry into the alleged disobedience of the injunction order.
Final Decision
The appeal is allowed. The impugned order dated 16.9.2020 passed by the Civil Judge, Senior Division, Quepem is set aside. The matter is remanded to the trial court for fresh consideration of the application under Order XXXIX Rule 2A CPC after conducting a proper inquiry in accordance with law. The civil application is disposed of.
Law Points
- Order XXXIX Rule 2A CPC requires inquiry before striking off defence
- wilful disobedience must be established
- striking off defence is a harsh order
- natural justice principles apply
Case Details
2024 LawText (BOM) (8) 137
APPEAL FROM ORDER NO. 18 OF 2024 WITH CIVIL APPLICATION NO. 55 OF 2024
Mr. Sandesh D. Padiyar and Mr. Prayash Shirodkar for the appellants; Mr. A. F. Diniz, Senior Advocate with Mr. Ryan Menezes, Ms. Gina Almeida and Mr. Nigel Fernandes for the respondents
Mr. Sidharth Babusso Purshottam Naik Dessai Alias Sidharth Babusso Naik Dessai Alias Sidharth Babusso Dessai Alias Sidharth B. Dessai, Mrs. Jyoti Sidharth Naik Dessai, Mr. Bhupesh Naik Dessai
M/s Deejay Coconut Farm Pvt. Ltd.
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Nature of Litigation
Appeal against order striking off defence under Order XXXIX Rule 2A CPC in a suit for easementary rights and injunction.
Remedy Sought
The appellants sought setting aside of the trial court's order dated 16.9.2020 which struck off their defence.
Filing Reason
The trial court struck off the defence of the appellants without conducting an inquiry into the alleged disobedience of an injunction order.
Previous Decisions
The trial court had granted a temporary mandatory injunction on 30.7.2020 directing the defendants to allow the plaintiff to use the suit access and remove obstacles, subject to furnishing a bank guarantee. The plaintiff furnished the bank guarantee on 6.8.2020. The defendants' application for suspension of that order was rejected on 18.8.2020. On the same day, the plaintiff filed an application under Order XXXIX Rule 2A CPC alleging violation, which led to the impugned order.
Issues
Whether the trial court could strike off the defence under Order XXXIX Rule 2A CPC without conducting an inquiry into the alleged disobedience.
Whether the order striking off defence was justified in the absence of a finding of wilful and deliberate disobedience.
Submissions/Arguments
Appellants argued that the trial court failed to conduct an inquiry as required by law, and that striking off defence is a harsh order which can only be passed after establishing wilful and deliberate disobedience.
Respondent argued that no inquiry was needed as the defendants' reply itself showed defiance, and the disobedience was wilful.
Ratio Decidendi
Before passing an order striking off defence under Order XXXIX Rule 2A CPC, the court must conduct an inquiry to determine whether there was wilful and deliberate disobedience of its order. Striking off defence is a harsh order that prevents a party from pleading its case, and such a penalty cannot be imposed without a proper finding of disobedience based on evidence.
Judgment Excerpts
Before passing such harsh order, concerned Court must satisfy itself that in fact there is disobedience, which is wilful and deliberate.
The trial Court failed to consider the pleadings and orders passed by it and without conducting any inquiry passed the impugned order.
Procedural History
The respondent/plaintiff filed Special Civil Suit No.14/2019/A in November 2019 before the Civil Judge, Senior Division, Quepem for declaration of easementary right and injunction. The trial court granted a temporary mandatory injunction on 30.7.2020. The plaintiff furnished a bank guarantee on 6.8.2020. The defendants' application for suspension was rejected on 18.8.2020. On the same day, the plaintiff filed an application under Order XXXIX Rule 2A CPC. The trial court passed the impugned order striking off the defence on 16.9.2020. The defendants filed the present appeal on 18.1.2024 (as per case number).
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order XXXIX Rule 2A, Order XXXIX Rule 10
- Specific Relief Act, 1963: Section 34, Section 38
