2002 Supreme(Bom) 968

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Sinha D.D., J.
Asha Madhusudan Joshi .... Appellant.
Versus
Ashok H. Bhide others.... Respondents.
Appeal Against Order No. 67 of 1995, decided on 9-9-2002.
Advocates appeared :
N. Vyawahare, for appellant.
Respondents served.

Headnote:Civil Procedure Code, 1908 - Order XXXIX, Rule 11 - Sufficient time granted to deposit amount against surety - No amount arranged - No money deposited - Further time demanded but denied - Held - There is scope for Order XXXIX, Rule 11 CPC - Provisions are of mandatory nature and resultantly defence needs to be withdrawn. - Rule 11 is added in Order XXXIX of the Code of Civil Procedure by the High Court vide notification dated 5.9.1983 with a specific purpose and to achieve definite objective. The intent of Rule is to provide the necessary action to be taken by the Court in case parties to the suit defy the order passed by the Court or commit breach of undertaking given to the Court. This provision is introduced with a positive object that the parties to the suit must face necessary consequences contemplated by this Rule in case they defy the order of the Court or commit breach of the undertaking given to the Court. The scheme of Order XXXIX, Rule 11(1) is to clothe the Court with a power to take appropriate action against the parties to the suit in case they defy the order of the Court or commit breach of the undertaking given to the Court. It is no doubt true that the words "Court may" used in the provision, which in the normal set of circumstances, imply that the discretion given to the Court for taking necessary action in the circumstances mentioned in the order, are directory. However, the word "may" in a given case is directory or mandatory needs to be construed in view of scheme of provision as well as intent and objective to be achieved by such provision. Similarly, weighing of the consequences of holding a provision to be mandatory or directory is vital and more often than not determinative of the very question whether the provision is mandatory or directory. When the design of a statute or provision is to clothe with the power in the authority or Court for taking definite and positive action in case of breach thereof, then the provision must be construed to be mandatory in nature even though the word used is "may". While applying these parameters to Rule 11(1), Court has no hesitation to hold that Rule 11(1) of Order XXXIX of the Code of Civil Procedure is mandatory in nature.

       On the backdrop of the settled legal position, it must follow that if any party to the proceedings after giving undertaking to the Court commits any default or contravenes or commits a breath of such undertaking and if such breach or default is committed by the defendants, then the necessary consequence shall be to strike out the defences of the defendants. Similar is the case in respect of order passed by the Court whereby party to the suit is required to do or not to do a thing during pendency of the suit and if any default or breach is committed in respect of such order passed by the Court and if it is by the defendant, then necessary consequence would be that the Court shall strike out the defence of such defendants.

        The entire approach of the trial Court is totally perverse and misconceived and, therefore, the impugned order, is devoid of substance and de hors the provisions of Order XXXIX, Rule 11(1) of the Code of Civil Procedure.

       Contempt of Courts Act, 1971 - Section 2(b) - Wilful non-compliance of orders - Court allowed extension of time to arrange money and deposit it as surety - Time allotted not utilised - No efforts made to arrange money - Held - Such act amounts to wilful disobedience of Court s order - Attracts contemnory proceedings. - It is not at all disputed that the respondent No. 1 to 4 neither made any application to the Court for extension of time nor the Court has extended time for furnishing security beyond the period of four weeks as directed by the Court. It is surprising that the audacity of respondent Nos. 1 to 4, who have made an application for extension of time before the trial Court on 1.11.1993 knowing fully well that it is beyond jurisdiction of the trial Court to extend the time, which was prescribed by the High Court vide order dated 22.7.1993. The trial Court was absolutely justified in rejecting the application for extension of time moved by the respondent Nos. 1 to 4 vide order dated 1.11.1993. It is really surprising that the respondent Nos. 1 to 4 thereafter challenged the order dated 1.11.1993 by filing civil revision application before the Court. The conduct of the respondents in filing civil revision application demonstrates oblique motive with which the revision was preferred. However, the Court did not condone the delay caused in filing revision by dismissing application for condonation of delay, with the result, the civil revision application also stood dismissed. The entire conduct of the respondent Nos. 1 to 4 on the backdrop of the referred facts, reveals that the respondents Nos. 1 to 4 never intended to honour the undertaking given to the Court and comply with the directions issued by the Court in the contempt petition. On the other hand, there was a deliberate attempt made by the respondent Nos. 1 to 4 by moving application for extension of time to furnish security before the trial Court and by challenging the order passed by the trial Court rejecting the said application by way of civil revision application in the Court in order to frustrate the condonation of undertaking given by them as well as directions issued by the Court in the contempt petition.