Case Note & Summary
The case involves a property dispute between two brothers, Shashikant Yeshwant Pal and Tanaji Yeshwant Pal, and their respective wives, over a house property in Bordem, Bicholim, Goa. The appellants (Shashikant and his wife) and respondents (Tanaji and his wife) are co-owners of the property, each entitled to a half share. The respondents filed an application under Order 39 Rule 11 of the Code of Civil Procedure, 1908 (CPC), alleging that the appellants had constructed a bathroom structure in violation of an injunction. The trial court, after considering the matter, accepted the appellants' apology and declined to strike off their defenses or order demolition, noting that no prejudice would be caused to the respondents as the renovation could be adjusted at the time of final partition. The respondents appealed, and the Appellate Court reversed the trial court's order, directing that the defenses and counterclaim be struck off and the bathroom structure be demolished. The appellants then filed a second appeal before the Bombay High Court at Goa. The High Court admitted the appeal on two substantial questions of law: whether the Appellate Court acted contrary to law and in excess of jurisdiction under Order 39 Rule 11 CPC, and whether its decree was contrary to evidence when no evidence was led by the respondents. The High Court, after hearing the appellants' counsel, held that the power under Order 39 Rule 11 CPC is directory and discretionary, not mandatory. The court relied on the Division Bench judgment in Ramavatar Surajmal Modi v. Mulchand Surajmal Modi, AIR 2004 Bombay 212, which held that to undo an act of contempt, the party must show prejudice. The trial court had properly exercised its discretion by considering the apology and the lack of prejudice, and the Appellate Court erred in interfering with that discretion without showing perversity or lack of evidence. Consequently, the High Court allowed the appeal, set aside the Appellate Court's order, and restored the trial court's order.
Headnote
A) Civil Procedure - Order 39 Rule 11 CPC - Directory and Discretionary Nature - The power under Order 39 Rule 11 CPC is not mandatory but discretionary, and the court must consider prejudice before striking off defenses or ordering demolition - The Appellate Court exceeded its jurisdiction by interfering with the trial court's discretion without showing perversity or lack of evidence (Paras 2-4). B) Civil Procedure - Appellate Court's Interference with Discretion - The Appellate Court cannot interfere with the trial court's discretionary order unless it is shown to be perverse or based on no evidence - The trial court had considered the apology and lack of prejudice, and the Appellate Court's reversal was contrary to law (Paras 3-4).
Issue of Consideration
Whether the Appellate Court acted contrary to law and in excess of jurisdiction by directing that the defenses and counterclaim be struck off and the bathroom structure be demolished under Order 39 Rule 11 CPC, and whether such order was contrary to evidence when no evidence was led by the respondents.
Final Decision
The High Court allowed the second appeal, set aside the order of the Appellate Court, and restored the order of the trial court.
Law Points
- Order 39 Rule 11 CPC is directory and discretionary
- not mandatory
- Appellate Court cannot interfere with trial court's discretion unless perverse or based on no evidence
- Prejudice must be shown before striking off defenses or ordering demolition.
