Case Note & Summary
The present appeals arise from a suit filed in 1987 by Behram Nowrosji Gamadia and Jehangir Dhan Mistri (original plaintiffs) against several defendants including Smt. Babli Samrathmal Seth, Ramesh Samrathmal Seth, and others, seeking a declaration of title and permanent injunction in respect of certain immovable property. The plaintiffs alleged that the defendants were trespassers and had no right over the property. The defendants filed a Chamber Summons (No.55 of 2015) seeking to strike out the defence of the plaintiffs for failure to file a written statement within the prescribed period and for not disclosing a proper defence. The trial court dismissed the Chamber Summons, holding that the power to strike out defence under Order 8 Rule 10 CPC is discretionary and that the defendants had not shown any intentional delay or prejudice. Aggrieved, the defendants filed Appeals No.368 of 2017 and Appeal (L) No.285 of 2017. The High Court, after hearing the parties, upheld the trial court's order. The court held that the requirement to disclose a defence under Order 6A Rule 3 CPC does not warrant striking out of defence; the proper remedy is to seek particulars or interrogatories. The court also noted that the suit is an old one and that striking out the defence would cause irreparable prejudice to the plaintiffs. The appeals were dismissed with costs.
Headnote
A) Civil Procedure - Striking out defence - Order 8 Rule 10 CPC - Failure to file written statement - The court held that the power to strike out defence under Order 8 Rule 10 is discretionary and not automatic; the court must consider whether the delay was intentional and whether prejudice is caused to the plaintiff. (Paras 10-15)
B) Civil Procedure - Disclosure of defence - Order 6A Rule 3 CPC - The court held that the requirement to disclose a defence is not a ground to strike out the defence; the remedy for non-disclosure is to seek particulars or interrogatories, not striking out. (Paras 16-20)
C) Property Law - Suit for declaration and injunction - Section 34 Specific Relief Act 1963 - The plaintiffs sought declaration of title and injunction against defendants; the court held that the suit is maintainable and the defendants' defence cannot be struck out merely because they failed to file a written statement within 90 days. (Paras 5-9)
Issue of Consideration
Whether the trial court was justified in refusing to strike out the defence of the defendants for failure to file a written statement within the prescribed period and for not disclosing a proper defence.
Final Decision
The High Court dismissed both appeals with costs, upholding the trial court's order refusing to strike out the defence of the plaintiffs.
Law Points
- Order 6A Rule 3 CPC
- Order 8 Rule 1 CPC
- Order 8 Rule 10 CPC
- Order 12 Rule 6 CPC
- Order 39 Rule 1 and 2 CPC
- Specific Relief Act 1963 Section 34
- Transfer of Property Act 1882 Section 53A
Case Details
APPEAL NO.368 OF 2017 IN CHAMBER SUMMONS NO.55 OF 2015 IN SUIT NO.783 OF 1987; APPEAL (L) NO.285 OF 2017 IN CHAMBER SUMMONS NO.55 OF 2015 IN SUIT NO.783 OF 1987
Behram Nowrosji Gamadia and Jehangir Dhan Mistri (in Appeal 368/2017); Ramesh Samrathmal Seth (in Appeal (L) 285/2017)
Smt. Babli Samrathmal Seth, Ramesh Samrathmal Seth, Smt. Manju Dinesh Shah, Smt. Vidya S. Seth, MahHill Properties Pvt Ltd., Vision Finstock Ltd.
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Nature of Litigation
Civil suit for declaration of title and permanent injunction in respect of immovable property.
Remedy Sought
The plaintiffs sought a declaration that they are the owners of the property and a permanent injunction restraining the defendants from interfering with their possession.
Filing Reason
The plaintiffs alleged that the defendants were trespassers and had no right over the property.
Previous Decisions
The trial court dismissed the Chamber Summons seeking to strike out the defence of the plaintiffs.
Issues
Whether the trial court was justified in refusing to strike out the defence of the defendants for failure to file a written statement within the prescribed period.
Whether the trial court was justified in refusing to strike out the defence for non-disclosure of a proper defence under Order 6A Rule 3 CPC.
Submissions/Arguments
The appellants argued that the respondents failed to file a written statement within 90 days and that their defence should be struck out under Order 8 Rule 10 CPC.
The appellants argued that the respondents did not disclose a proper defence as required under Order 6A Rule 3 CPC, warranting striking out of defence.
The respondents argued that the power to strike out defence is discretionary and that they had a valid defence; the delay was not intentional and no prejudice was caused.
Ratio Decidendi
The power to strike out defence under Order 8 Rule 10 CPC is discretionary and not automatic; the court must consider whether the delay was intentional and whether prejudice is caused. Non-disclosure of defence under Order 6A Rule 3 CPC does not justify striking out; the proper remedy is to seek particulars or interrogatories.
Judgment Excerpts
The power to strike out defence under Order 8 Rule 10 is discretionary and not automatic.
Non-disclosure of defence under Order 6A Rule 3 CPC does not warrant striking out of defence.
Procedural History
Suit No.783 of 1987 was filed in 1987. In 2015, the defendants filed Chamber Summons No.55 of 2015 seeking to strike out the defence of the plaintiffs. The trial court dismissed the Chamber Summons. The defendants filed Appeals No.368 of 2017 and Appeal (L) No.285 of 2017 against that order. The High Court heard the appeals and dismissed them on 21 December 2017.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 6A Rule 3, Order 8 Rule 1, Order 8 Rule 10, Order 12 Rule 6, Order 39 Rule 1, Order 39 Rule 2
- Specific Relief Act, 1963: Section 34
- Transfer of Property Act, 1882: Section 53A
