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2022 SCC OnLine Del 2620 : 2022 AIR CC 2976 : (2023) 1 RCR
(Civil) 757
In the High Court of Delhi at New Delhi
(BEFORE MANOJ KUMAR OHRI, J.)
In the Matter of:
Rattan Mehta and Another … Appellants;
Versus
Gayatri Shah and Others … Respondents.
FAO 37/2020 and CM. APPL. No. 3126/2020
Decided on August 29, 2022, [Reserved on : 20/05/2022]
Advocates who appeared in this case:
Mr. Harish Malhotra, Sr. Advocate with Mr. Lalit Gandherva, Advocate
Mr. Rajesh Yadav, Sr. Advocate with Ms. Ruchira V. Arora & Mr.
Dhananjay Mehlawat, Advocates for respondent Nos. 1 and 2.
The Judgment of the Court was delivered by
MANOJ KUMAR OHRI, J.:— By way of present appeal filed under
Order XLIII Rule 1(f) read with Section 151 CPC, the appellants have
assailed the order dated 23.12.2019 passed by the learned ADJ-04,
Patiala House Courts, New Delhi in CS No. 55540/2016, whereby the
appellants'/defendants' defence was struck off and the written
statement filed by them was directed to be taken off the record.
2. Brief facts, in nutshell, to appreciate the challenge are that the
respondents/plaintiffs preferred a suit for possession, mesne profits and
damages. In the plaint, the respondents claimed themselves to be
owners of property bearing No. 25-A, C Block, Vasant Vihar Market
(Local Shopping Centre-1), New Delhi (hereinafter, referred to as ‘the
suit property’). It was further claimed that a shop on the ground floor
of the suit property was leased to Smt. Anju Mehta and appellant No. 1
vide Lease Deed dated 15.05.1984 at a monthly rent of Rs. 1,500/-,
whereafter the defendants created a sub-tenancy in favour of M/s.
Mahima Caps (P) Ltd. by entering into an Agreement dated 15.07.2004
(hereinafter, referred to as ‘the Agreement’). The Agreement, a copy of
which was filed alongwith the plaint, was statedly executed on behalf of
defendants' partnership firm M/s. Rain through Smt. Anju Mehta and
her son Rattan Mehta- the appellant. Under the said Agreement, M/s.
Mahima Caps (P) Ltd. was required to pay Rs. 1 lac per month as
minimum guaranteed proceeds towards the profit/sale.
3. It was pleaded before the Trial Court that the defendants having
created sub-tenancy were no longer entitled to protection under the
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Delhi Rent Control Act, 1995. In support of the averment, they had
placed on record a copy of the Agreement and averred that the original
Agreement was in possession of the defendants.
4. While the alleged sub-tenants were proceeded ex-parte, the
appellants appeared and filed a written statement, wherein they
admitted the partnership of their firm M/s. Rain with M/s. Mahima Caps
(P) Ltd., but not the execution, existence and possession of the
Agreement. On 30.01.2018, the issues were framed by the Trial Court
and those relevant to the present controversy are extracted below:—
“1. Whether the suit of the plaintiff's is barred under Section 50 of
the Delhi Rent Control Act, 1958? OPD 1 and 2.
xxx
5. Whether the amount received as monthly minimum guaranteed
profit of Rs. 1,00,000/- by defendant no. 1 and Smt. Anju Mehta
(since deceased now represented by defendant no. 1 and 3) from
defendant no. 4 under the agreement dated 15.07.2004, was in the
nature of the rent or not? OPP.
6. Whether the plaintiff's are entitled to a decree of possession of
the suit premises in terms of prayer clause (a)? OPP.”
(emphasis added)
5. An application came to be filed on behalf of the plaintiffs under
Order 11 Rule 1 read with Section 151 CPC seeking leave to deliver
following interrogatories to defendant Nos. 1 and 2:—
“(a) Was not the agreement dated 15.07.2004, a true photocopy
of which has been placed on record by the Plaintiffs,
entered/executed between M/s. Rain, through its partners Smt. Anju
Mehta w/o late Shri. Surinder Mehta and Shri. Rattan Mehta s/o late
Shri. Surinder Mehta (Defendant No. 1 herein), and M/s. Mahima
Caps Private Limited (Defendant No. 4 herein), through its Managing
Director Shri. Dhiraj Arora, with respect to property No. 25-A,
situated in C Block, Vasant Vihar Market (local shopping Centre-I),
New Delhi-110057, whereby M/s. Mahima Caps Private Limited was
to pay minimum guaranteed profit of Rs. 1,00,000/- per month to
M/s. RAIN of which Smt. Anju Mehta and Shri. Ratan Mehta were
partners.”
6. The defendants filed a reply to the said application and did not
admit the existence or their possession of the Agreement. The relevant
portion of the reply is extracted below:—
“2. …The plaintiffs are to prove the said documents in accordance
with law and not by way of alleged interrogatory which is in the form
of fishing enquiry. The original of the said document will speak for
itself. It is denied that the said document for all intent and purposes
is an agreement of sub-lease as alleged in the paragraph under
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reply. The plaintiffs cannot seek any information about any profit
given to Smt. Anju Mehta since deceased. It is absolutely false to
say that the said profit was in the nature of rent. It is absolutely
false to say that Delhi Rent Control Act became inapplicable to the
suit premises as alleged in the paragraph under reply.
xxx
4. …It is reiterated that the alleged agreement no more subsists.”
7. The aforesaid application filed on behalf of the plaintiffs came to
be allowed vide order dated 01.08.2019, whereby the defendants were
directed to answer the interrogatories. The defendants challenged the
said order before this Court by way of CM Main 1738/2019. This Court,
vide judgment dated 06.12.2019, dismissed the challenge by
concluding as under:
“21. …The interrogatories have been correctly directed to be
served upon the Defendants and due to non-compliance, an adverse
inference can be drawn by the ld. Trial Court.
th
22. Further vide order dated 26 November 2019, the ld. Trial
Court has directed as under:
“Ld. Counsel for Plaintiff states that the D-1 and D-2 have not
complied with the directions passed vide order dt. 01.08.19
despite having delivered the interrogatories to them and which
are not answered.
Ld. counsel for D-1 &2 states that pursuant to the Para No. 12
of the order dt. 01.08.19, the interrogatories were to be delivered
to D-1 & 2 afresh and not the ones i.e. proposed interrogatories
annexed along with the application of the plaintiffs. Be that as it
may. The Defendants have failed to explain the compliance of the
directions since 01.08.19 and this seems to be an attempt to
delay the proceedings on their part.
In view of the provisions under Order 11 Rule 21 CPC,
Defendants are hereby directed to explain in writing the non-
compliance of the order within a month before any adverse order
against them is considered.
Ld. Counsel for Plaintiffs seeks to move an application for
striking out the defence of D-1 and D-2 for failure to comply with
the order.
Relist for filing the explanation by D-1 & D-2 and consideration
over application of Plaintiffs on 11.12.19 at 12.P.M.”
23. Accordingly, the petition is dismissed with Rs. 20,000/- as
costs. All pending applications are also disposed of. Rs. 10,000/-
each shall be paid, in equal sum, by the Petitioners/Defendants to
the two Plaintiffs/Respondents, on or before the next date before the
ld. Trial Court. The proceedings before the ld. Trial Court shall go on
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in accordance with law. Dasti.”
8. The Special Leave to Appeal (C) No. 8279/2020 filed on behalf of
the defendants against the aforesaid judgment dated 06.12.2019 was
dismissed as withdrawn vide order dated 27.11.2020.
9. Before the Trial Court, the plaintiffs made a submission that the
defendants did not comply with the directions contained in the decision
dated 01.08.2019 passed by the Court, inasmuch as, they had not
answered the interrogatories. The defendants were directed to file an
explanation for non-compliance as well as an answer to the
interrogatories.
10. In the answer, while defendant No. 1 claimed that he was only a
sleeping partner at the relevant time, defendant No. 2 claimed that she
was not a partner at the relevant time. It was further claimed by
defendant Nos. 1 and 2 that they were not actively engaged in the day-
to-day business of the restaurant and it was their mother who was
looking after the business of the restaurant at premises in question.
Both the defendants also denied the Agreement and stated, to their
knowledge, that the same was neither entered into nor executed. An
objection was further taken to the effect that the document dated
15.07.2004 filed alongwith the application and relied upon by the
plaintiffs was not only a photocopy, but also not properly and duly
stamped.
11. The plaintiffs preferred an application under Order 11 Rule 21
read with Section 151 CPC seeking striking out of the defence of
defendant Nos. 1 and 2 for having failed to answer the interrogatories
and non-compliance of the order dated 01.08.2019 passed by the
learned ADJ. The defendants contested the said application and denied
willful non-compliance.
12. Vide the impugned order, the Trial Court directed that
defendants' defence in the suit be struck off. Consequently, the written
statement filed by the defendant Nos. 1 and 2 was also directed to be
taken off the record.
13. Mr. Harish Malhotra, learned Senior Counsel for the appellants
while assailing the impugned order submitted that in the
interrogatories filed by the plaintiffs alongwith the application under
Order 11 Rule 1 CPC, the inquiry was limited to whether the Agreement
was entered and executed between M/s. Rain (through defendant Nos.
1 and 2) and M/s. Mahima Caps (P) Ltd. and the plaintiffs had not
sought production of the Agreement. It was further contended that
once the defendants had denied the execution and possession of the
Agreement, only an adverse inference could have been drawn against
them in trial but the defence ought not to have been struck off as the
penalty envisaged under Order 11 Rule 21 CPC is not applicable to non-
production of documents. In support of the submissions, reliance was
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placed on following decisions:—
i) Babbar Sewing Machine Company v. Trilok Nath Mahajan reported
as (1978) 4 SCC 188;
ii) Sawhney Brothers v. Hong Kong & Shanghai Banking Corporation
reported as 2001 SCC OnLine Del 795;
iii) Sh. Shravan Kumar Gupta v. Sh. Tara Chand Gupta reported as
2013 SCC OnLine Del 3623; and
iv) Maj Retd Sukesh Behl v. Koninklijke Philips Electronics NV
reported as 2016 SCC OnLine Del 352.
14. Per contra, Mr. Rajesh Yadav, learned Senior Counsel for the
respondents herein, supported the impugned order. It was submitted
that defendants have been guilty of not truthfully answering the
interrogatories. It was further submitted that defendants have not
specifically denied the existence of the original Agreement either in the
written statement or in their Affidavit of admission/denial of
documents. In this regard, learned Senior Counsel referred to the
following extract of judgment dated 06.12.2019 passed by this Court in
CM (M) 1738/2019:
“21. Disclosure of the said agreement is therefore crucial for the
adjudication of the suit. The Defendants are clearly not coming clean
to the Court. The denial of the said document is completely evasive
and such a denial is no denial in the eyes of law.”
15. Mr. Yadav also placed reliance on the following decisions in
support of his submissions:
i) Shri. M.L. Sethi v. Shri. R.P. Kapur reported as (1972) 2 SCC 427;
ii) Vikas Aggarwal v. Anubha reported as (2002) 4 SCC 468;
iii) D. Ram Mohan Rao v. Sridevi Hotels Private Limited, Nizamabad
reported as 2003 SCC OnLine AP 30;
iv) Hari Shankar v. Sardar Harnam Singh reported as 2013 SCC
OnLine Del 3315;
v) Hindustan Zinc Ltd. v. Durha Construction Pvt. Ltd. reported as
2021 SCC OnLine Del 3333.
16. I have heard learned Senior Counsels for the parties and also
gone through the material placed on the record.
17. It is worthwhile to note that the plaintiffs had preferred an
application under Order 11 Rule 1 read with Section 151 CPC before the
Trial Court, thereby seeking leave to deliver interrogatories to
defendant No. 1/Rattan Mehta and defendant No. 2/Ms. Mona Mehta
(i.e., daughter of Smt. Anju Mehta). The interrogatories were directed
to be delivered and the same stand answered by the defendants in
pursuance of the judgment dated 06.12.2019 passed by a Co-ordinate
Bench of this Court.
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18. The only issue that arises for consideration in the present case is
whether the defendants' answer to the interrogatories, in the manner it
was given, i.e., denying entering into and execution of the Agreement,
would attract consequences envisaged under Order 11, Rule 21 CPC.
19. As per the scheme of Order 11 CPC, parties, with the leave of
the Court, are allowed to deliver interrogatories to each other relating to
matters in question in the suit. As per Rule 1, party to a suit may seek
leave of the concerned Court to deliver interrogatories in writing for the
examination of the opposite party. Under Rule 2, the Court is required
to decide whether such leave is to be granted. If leave is granted by
the Court, the opposite party is required under Rules 8 and 9 to answer
the interrogatories in Form No. 3 in Appendix-C of CPC with such
variations as circumstances may necessitate.
20. The interrogatories are to be answered by way of an affidavit,
which may include any objection to it on account of privilege or
otherwise, as prescribed in Rule 6. Further, in terms of Rule 11, if the
party interrogated omits to answer or if the answer is perceived
insufficient, the party interrogating may apply to the concerned Court
for an order directing the party interrogated to answer, or answer
further, as the case may be.
21. Section 30 CPC provides that the Court can also exercise powers
on its own motion and pass such orders as may be necessary or
reasonable in all matters relating to the delivery and answering of
interrogatories, the admissions of documents and facts, and the
discovery, inspection, production, impounding and return of documents
or other material objects producible as evidence.
22. At this stage, it is deemed expedient to advert to Order 11, Rule
21 CPC which 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.”
23. In the present case, it is apparent that the interrogatories
supplied by the plaintiffs were in connection with the Agreement dated
15.07.2004 which forms the fulcrum of the plaintiffs' case that the
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defendants created a sub-tenancy in favor of M/s. Mahima Caps (P)
Ltd., resulting in not only violation of the terms of Lease Deed dated
15.05.1984, but also taking out of the case from the purview of DRC
Act. As such, there is no doubt that the interrogatories delivered to the
defendants were related to ‘matters in question in the suit’ and rightly
directed to be answered by this Court.
24. In Halsbury's Laws of England, fourth edition, volume 13 in para
1, the nature and extent of discovery has been considered thus:—
“The term “discovery” in this title is used to describe the process
by which the parties to civil cause or matter are enabled to obtain,
within certain defined limits, full information of the existence and the
content of all relevant documents relating to the matters in question
between them. The process of the discovery of documents operates
generally in three successive stages, namely (1) the disclosure in
writing by one party to the other of all the documents which he has
or has had in his possession, custody or power relating to matters in
question in the proceedings : (2) the inspection of the documents
disclosed, other than those for which privilege from or other
objection to production is properly claimed or raised : and (3) the
production of the documents disclosed either for inspection by the
opposite party or to the court.
The function of the discovery of documents is to provide the
parties with the relevant documentary material before the trial so as
to assist them in appraising the strength or weakness of their
respective cases, and thus to provide the basis for the fair disposal of
the proceedings before or at the trial. Each party is thereby enabled
to use before the trial or to adduce in evidence at the trial relevant
documentary material to support or rebut the case made by or
against him to eliminate surprise at or before the trial relating to
documentary evidence and to reduce the costs of the litigation.”
25. In Shri. M.L. Sethi (Supra), the Supreme Court has opined that
if a party obtains an order for inspection, and the opposite party fails to
make an affidavit of documents pursuant thereto, the latter will be
subject to the penalty under Order 11, Rule 21 CPC. Relevant excerpt
from the judgment is reproduced hereunder:—
“6. …Generally speaking, a party is entitled to inspection of all
documents which do not themselves constitute exclusively the other
party's evidence of his case or title. If a party wants inspection of
documents in the possession of the opposite party, he cannot inspect
them unless the other party produces them. The party wanting
inspection must, therefore, call upon the opposite party to produce
the document. And how can a party do this unless he knows what
documents are in the possession or power of the opposite party? In
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other words, unless the party seeking discovery knows what are the
documents in the possession or custody of the opposite party which
would throw light upon the question in controversy, how is it
possible for him to ask for discovery of specific documents? …
xxx
7. When the Court makes an order for discovery under the rule,
the opposite party is bound to make an affidavit of documents and if
he fails to do so, he will be subject to the penalties specified in Rule
21 of Order 11. An affidavit of documents shall set forth all the
documents which are, or have been in his possession or power
relating to the matter in question in the proceedings. And as to the
documents which are not, but have been in his possession or power,
he must state what has become of them and in whose possession
they are, in order that the opposite party may be enabled to get
production from the persons who have possession of them (see Form
No. 5 in Appendix C of the Civil Procedure Code). After he has
disclosed the documents by the affidavit, he may be required to
produce for inspection such of the documents as he is in possession
of and as are relevant.
xxx
9. …The documents sought to be discovered need not be
admissible in evidence in the enquiry or proceedings. It is sufficient
if the documents would be relevant for the purpose of throwing light
on the matter in controversy. Every document which will throw any
light on the case is a document relating to a matter in dispute in the
proceedings, though it might not be admissible in evidence. In other
words, a document might be inadmissible in evidence yet it may
contain information which may either directly or indirectly enable the
party seeking discovery either to advance his case or damage the
adversary's case or which may lead to a trail of enquiry which may
have either of these two consequences. The word ‘document’ in this
context includes anything that is written or printed, no matter what
the material may be upon which the writing or printing is inserted or
imprinted. We think that the documents of which the discovery was
sought, would throw light on the means of the respondent to pay
court fee and hence relevant.”
26. While examining the principles underlying Order 11, Rule 21
CPC, the Supreme Court in Babbar Sewing Machine Company (Supra)
has further observed that the defendant's defence may be struck off for
non-compliance of an order of the Court only as a last resort, provided
the conduct and/or attempt to default is willful. Relevant excerpt from
the judgment is extracted below:—
“10. In this appeal, two questions are involved : firstly, whether
the trial Court was justified in striking out the defence of the
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defendant under Order XI, Rule 21 of the C.P.C., 1908, and secondly,
whether the High Court was right in observing that in view of the
clear language of Order XI, Rule 21 the defendant cannot be
permitted to cross-examine the plaintiff's witnesses.
xxx
11. …The penalty imposed by Order XI, Rule 21 is of a highly
penal nature, and ought only to be used in extreme cases, and
should in no way be imposed unless there is a clear failure to comply
with the obligations laid down in the rule.
13. Section 136 of the Code of Civil Procedure, 1882,
corresponding to Order XI, Rule 21, of the C.P.C. 1908, was based
upon Order XXXI, Rule 20, now replaced by Order XXIV, Rule 16
framed under the Judicature Act. The practice of the English Courts
is, and it has always been, to make the order a conditional one, and
to grant a little further time for compliance. In practice this provision
is virtually obsolete.
14. Even assuming that in certain circumstances the provisions of
Order XI, Rule 21 must be strictly enforced, it does not follow that a
suit can be lightly thrown out or a defence struck out, without
adequate reasons. The test laid down is whether the default is wilful.
In the case of a plaintiff, it entails in the dismissal of the suit and,
therefore, an order for dismissal ought not be made under Order XI,
Rule 21, unless the court is satisfied that the plaintiff was willfully
withholding information by refusing to answer interrogatories or by
withholding the documents which he sought to discover. In such an
event, the plaintiff must take the consequence of having his claim
dismissed due to his default, i.e. by suppression of information
which he was bound to give: Denvillier v. Myers. In the case of the
defendant, he is visited with the penalty that his defence is liable to
be struck out and to be placed in the same position as if he had not
defended the suit. The power for dismissal of a suit or striking out of
the defence under Order XI, Rule 21, should be exercised only where
the defaulting party fails to attend the hearing or is guilty of
prolonged or inordinate and inexcusable delay which may cause
substantial or serious prejudice to the opposite party.
15. It is well settled that the stringent provisions of Order XI, Rule
21 should be applied only in extreme cases, where there is
contumacy on the part of the defendant or a wilful attempt to
disregard the order of the court is established.”
27. Although other decisions were also cited at the Bar, the law on
the issue involved appears to be well-settled by the aforementioned
decisions by the Supreme Court.
28. Coming back to the facts of the present case, it is observed that
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the Trial Court vide order 01.08.2019 directed the defendants to answer
interrogatories. However, the same were not answered by them and
they rather chose to challenge the order dated 01.08.2019 and avoided
answering the interrogatories. It was when this Court, vide judgment
dated 06.12.2019, called upon the defendants to explain their non-
compliance and answer the interrogatories, that the interrogatories
supplied by the plaintiffs came to be answered.
29. Plaintiffs have doubted the veracity of the answer given by the
defendants and argued that they were evasive in their reply. In this
regard, it is noted that in proceedings dated 08.01.2019 before the
Trial Court, a specific query was made to learned counsel for defendant
Nos. 1 and 2 as to whether the said defendants were in possession of
original Agreement dated 15.07.2004. In response, it was submitted by
the learned counsel that defendant Nos. 1 and 2 were not in possession
of the Agreement and the defendants would file their affidavits to that
effect. Subsequently, affidavits on behalf of defendant Nos. 1 and 2
were filed before the Trial Court, deposing in unambiguous terms that
they were not in possession of the Agreement dated 15.07.2004.
30. On a reading of Order 11 Rule 21 CPC, this Court is of the
opinion that a party is obligated to answer the interrogatory served
upon it with the leave of Court and there shall not be willful non-
compliance of the order of the Court. Further, under Rule 11, where any
person omits to answer or answers insufficiently, the party
interrogating may apply to the Court for an order requiring him to
answer or to answer further, as the case may be. Insufficient answers
would mean incomplete or incoherent answers, and not incorrect
answers, since at the time of exchange of interrogatories and answers
between the parties, the Court is not required to conduct a summary
trial to assess the veracity of the answers. Consequence of striking off
of the defendant's defence is a result only of ‘failure’ to answer the
interrogatory, and does not follow when the answer may not be to the
liking of the person delivering the interrogatory or allegedly incorrect.
31. Under Order 11, Rule 22 CPC, the answer given in response to
an interrogatory can be used in evidence, and therefore, its correctness
and veracity will be established only at trial. Undoubtedly, it is
incumbent upon a person answering the interrogatories to be truthful in
the answers, and if the person is eventually found to have given false
answers, they can be visited with consequences like perjury, in
accordance with law, since the answer given in response to
interrogatory can be used in evidence under Rule 22. All such
consequences are within the domain of the Trial Court which shall
eventually deal with the evidence produced by the parties before it.
32. In view of the aforesaid, the impugned order dated 23.12.2019
passed by the Trial Court is liable to be set aside. The appeal is allowed
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and it is ordered accordingly. Miscellaneous application is disposed of as
infructuous. The written statement filed by defendant Nos. 1 and 2 is
directed to be taken on record. Mindful of the above observation, the
Trial Court is directed to proceed with the suit in accordance with law.
———
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