JUDGMENT - KHANDEPARKAR R.M.S., J.:---Taken on board on request. Heard the learned Advocates for the parties. Rule. By consent, the Rule is made returnable forthwith.

2. The petitioners are challenging the order dated 9th January, 2003 rejecting their application for postponement of the hearing of the Appeal No. 698 of 2001 till the disposal of the interim Notices bearing Nos. 4851 and 4852 of 2002. The said notices relate to contempt proceedings against the respondents.

3. Drawing attention to Rule 11 of Order XXXIX of the Code of Civil Procedure, hereinafter referred to as "the Code", it was sought to be contended that in case the proceedings regarding contempt were heard prior to the appeal, there would be no occasion for the Court below to hear the appeal, if the respondent is found to have flouted the Court's order or acted in contravention of the Court's order and the necessary penalty under the said rule can be imposed and the appeal can be straightway disposed of.

4. The Rule 11 of Order XXXIX of the Code, as is in force in the State of Maharashtra, empowers the Court to dismiss the suit, if the plaintiff defies or defaults in complying with the order. Certainly, such power can be exercised by the Appellate Court in relation to appeals also. But it is purely a discretionary power to be exercised judiciously and in cases where the party deserves such harsh penalty and not merely because the other side feels aggrieved by the failure on the part of the plaintiff to comply with the order. Besides, it has to be a deliberate or intentional action or inaction on the part of the plaintiff. Above all, it must be a case, to the satisfaction of the Court, fit and appropriate to invoke the powers under the provisions of the said Rule.

5. It is to be noted that before imposing the penalty under Rule 11 of Order XXXIX of the Code, it is necessary for the Court to arrive at the finding about default and/or non-compliance of the order of the Court by the party, and such default being either deliberate or intentional or wilful. Mere filing of an application for contempt proceedings, by itself, therefore, would not justify the action under Order XXXIX, Rule 11 of the Code. Undoubtedly, the Rule does not use the words like deliberate or intentional or wilful. However, the action being of penal nature in as much as that the penalty would either be non-suiting or striking of the defence on account of action under the said Rule, certainly the act for such penal action has to be deliberate or wilful and not merely an unintentional or mere failure to comply with the order. Any punishment or penalty should not be disproportionate to the nature and degree of offence or default. Therefore, the power under the rule can be exercised only upon the finding by the Court that the default has been either deliberate or intentional or wilful.

6. It is well-settled that an action for contempt of Court is always in the discretion of the Court. Merely because there is complaint of non-compliance of the order of the Court, the action for contempt of Court is not to be initiated as a matter of course. It is for the Court to decide about the same, based on the materials placed before it, and the complainant has no right of appeal if the Court decides not to take action against the person who is alleged to have committed default in compliance of the order of the Court. Likewise is the case in relation to exercise of powers under Order XXXIX, Rule 11 of the Code. The party cannot as a matter of right demand for striking of defence or dismissal of the suit for every violation or default of order at the hands of the opposite party. It is for the Court to take appropriate decision in its discretion, to be exercised judiciously, and depending upon the facts of each case.

7. It is therefore, entirely in the discretion of the Court as to whether the hearing of the appeal has to be postponed or not till the disposal of the contempt proceedings sought to be initiated by the p

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