Order 39, Rule 11(1) of the Code of Civil Procedure is directory and not mandatory. The court has discretion in deciding whether to strike out the defence of a party for non-compliance with court orders.

JUDGMENT - LODHA R.M., J.: - Twin issues arise in this appeal. The first issue is whether Order 39, Rule 11(1) of the Code of Civil Procedure (Bombay Amendment) introduced in Maharashtra by Notification dated 5th September, 1983 is mandatory or directory. The other issue is if the said provision is held to be directory, whether the learned Single Judge committed any error in exercise of discretion in declining to strike off the defence of the defendant.

2. The aforesaid issues arise in the circumstances which we may briefly indicate. The appellant is the plaintiff and the respondent is the defendant in Suit No. 542/1996. The parties are real brothers. The plaintiff claims to be the owner of the subject flat and has prayed for the possession of that flat from the defendant. In the Notice of Motion taken out by the plaintiff being Notice of Motion No. 2440/1996, the Court Receiver was appointed vide order dated 5th March, 1998 by consent of the parties in respect of the subject flat. By the said order the Court Receiver was directed to take only formal possession and appoint the defendant as its agent for the royalty to be fixed, but without security. The consent order dated 5th March, 1998 came to be challenged by the defendant in appeal The Division Bench vide order dated 5th May, 1998 dismissed the appeal but granted liberty to the defendant to apply for clarification of the order dated 5th March, 1998, if so advised. The defendant filed review petition which was dismissed on 24th September, 1998. An appeal was preferred by the defendant against the order dated 24th September but he failed. In the meanwhile the Court Receiver took formal possession of the subject flat and appointed the defendant as its agent on monthly ad hoc royalty of Rs. 5,000/-. Subsequently on receipt of the valuers report the Court Receiver fixed final royalty of Rs. 38,000/- per month in the meeting held on 30th March, 1999. The defendant took out chamber summons being Chamber Summons No. 597/1999 challenging the fixation of royalty at the rate of Rs. 38,000/-. Vide order dated 29th September, 1999 the Court Receiver was directed to ascertain the current rate of rent (royalty) that the subject flat would fetch while taking into account the demand and situation of the flat de hors other valuation reports and the Court Receiver was directed to submit the report. In compliance thereof, the Court Receiver submitted the report dated 24th November, 1999 and royalty of Rs. 30,000/- to Rs. 35,000/- per month was suggested as per the prevailing market rate. By the order dated 6th December, 1999, the learned chamber Judge fixed the sum of Rs. 25,000/- per months as royalty. The defendant carried the order dated 6th December, 1999 in appeal. The said appeal was summarily rejected by the order dated 14th March, 2000. On the application for speaking to the minutes, the Division Bench by the order dated 10th April, 2000 ordered that if the arrears of royalty were paid within a period of three months from the date of the order dated 14th March, 2000, the Receiver shall not take forcible possession and if the arrears were not paid by the said deadline and the royalty was not paid every month as already held in the order dated 14th March, 2000, the Court Receiver was permitted to take possession. The defendant challenged the order dated 14th March, 2000 passed by the Division Bench in a special leave petition before the Supreme Court. Vide interim order dated 11th May, 2000 the Apex Court directed that the defendant shall not be dispossessed provided he deposits the entire arrears of royalty at the rate of Rs. 5,000/- per month within a period of two months therefrom and in default, the order shall automatically stand vacated. The special leave petition came to be dismissed by the Supreme Court on 9th October, 2000. Upon dismissal of the special leave petition by the Supreme Court, the Court Receiver called upon the defendant to deposit the entire arrears of royalty at

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