1. Admit.

2. Heard finally on the following substantial question of law: Whether the order passed by the trial Court below Exhibit 1 in exercise of powers under Order-XI Rule 21 of the Code of Civil Procedure, 1908 is after giving reasonable opportunity to the defendant?

3. The respondent is the original plaintiff who had filed suit seeking recovery of an amount of Rs.1,33,303/- being the balance amount payable on account of work done by him. According to the plaintiff, he had supplied water to the respondents of Ward No.17 in the city of Akola for the period from 29-9-2004 to 31-7-2005 but he was not paid the entire dues as agreed. In the written statement it was pleaded that the suit was barred by limitation and that the defendant had made necessary payments due to which there were no dues to be further paid. The trial Court after considering the evidence on record partly decreed the suit and directed the defendant to pay an amount of Rs.1,33,303/- along with interest. Being aggrieved, the original defendant filed an appeal which came to be dismissed. Hence this second appeal.

4. It is submitted by the learned Counsel for the appellant that before the trial Court the plaintiff had filed two applications at Exhibits 18 and 19. As per application at Exhibit18, a notice to produce certain original documents was given to the defendant. As per application at Exhibit-19, discovery of documents under Order XI Rule 10 of the Code of Civil Procedure, 1908 (for short, the Code) was sought. The defendant despite these applications did not comply with the directions issued therein. The trial Court, therefore, exercised powers under Order XI Rule 21 of the Code and struck off the defence of the defendant. It is submitted that this course was not permissible as the defence was struck off without granting an opportunity to the defendant. This has caused prejudice to the case of the defendant and the impugned judgment is therefore liable to be set aside.

5. Shri O. Y. Kashid, learned Counsel for the respondent supported the impugned judgment. He submitted that the directions issued in both the applications were not complied with and therefore the defence was rightly struck off. It was submitted that the order passed by the trial Court below Exhibit-1 on 11-11-2010 was not challenged by the defendant before the appellate Court and therefore such challenge should not be permitted at this stage. The claim having been duly proved the decree does not call for any interference.

6. Heard the learned Counsel for the parties at length and perused the records of the case. It is not in dispute that the plaintiff had filed two applications at Exhibits 18 and 19 seeking production of the original records and for discovery of documents. No say was filed by the defendant and therefore, the trial Court directed the defendant to discover the said documents on affidavit. This order was passed on 22-10-2010. On 11-11-2010 the trial Court passed an order below Exhibit1 and struck off the pleadings of the defendant. This has been done in exercise of powers under provisions of Order XI Rule 21 of the Code.

7. As per the provisions of Order XI Rule 21 of the Code, the party failing to comply with any order, if a defendant is liable to have the defence struck off. This is however subject to the other party applying to the Court for an order to that effect and such order being made on that application after due notice to the parties and giving them reasonable opportunity of being heard. The records indicate that the plaintiff did not move any application for striking off the defence of the defendant and without granting any opportunity to the defendant, the trial Court passed an order below Exhibit-1 and struck of the defence. In absence of any such application by the plaintiff as contemplated by Rule 21 of Order XI of the Code, the defence could not have been struck off in such a manner. Suo motu exercise of powers in this regard are not contemplated by afores