The main legal point established in the judgment is the discretionary nature of the power conferred by Order 39 Rule 11 of the Code of Civil Procedure, emphasizing the requirement of intentional and willful breach to justify the striking out of a defense.

JUDGMENT

SANDEEP V.MARNE, J. - Rule. Rule is made returnable forthwith. With the consent of parties taken up for final hearing.

2. By this petition, petitioner assails order dtd. 25/11/2021 passed by the District Judge-6, Kalyan allowing Appeal and setting aside order passed by the 2nd Joint Civil Court, Senior Division on 2/1/2018 by which the trial Court had rejected plaintiff's application for striking out the defence of defendant No. 2. The net result of the order of District Court is that the defence of defendant No. 2 has been struck out.

3. Plaintiff/respondent No. 1 has instituted Special Civil Suit No. 144 of 2016 against Vishnu Bhagwan Mhatre (respondent No. 2) and Sanjay Thakkar (petitioner) for enforcement of agreement of Sale dtd. 30/12/2015 executed in pursuance of compromise decree in RCC No. 428 of 2014 and for amalgamation and allotment of Shop Nos. 9 and 10 by defendant No. 2 to plaintiff. Plaintiff apprehended defendant No. 2 creating third party rights in respect of shop Nos. 9 and 10 and was therefore pressing for temporary injunction. In the application for temporary injunction, which was to be heard 26/10/2016, defendant No. 2 filed a pursis stating that he intended to keep the position of the suit property as it is till disposal of Exh.5 application and that he shall not give possession thereof. On account of such a pursis being filed by defendant No. 2, hearing of application for temporary injunction was deferred. However, within two days on 28/10/2016, defendant No. 2 executed an agreement for sale in respect of shop No. 9 in favour of third party. Since the undertaking given before the trial Court was breached, plaintiff filed application at Exh.32 for striking out the defence of defendant No. 2 under provisions of order 39, Rule 11 of the Code of Civil Procedure, 1908 ("Code"). The trial Court proceeded to reject the application vide its order dtd. 2/1/2018. Plaintiff filed Miscellaneous Civil Appeal No. 10/2018 challenging the decision of the trial Court and by the judgment and order dtd. 25/11/2021, which is impugned in the present Petition, the District Court proceeded to allow the appeal and set aside the order of the trial Court by allowing plaintiff's application for striking out the defence of defendant No. 2. Aggrieved by order of the District Judge-6, petitioner/defendant No. 2 has filed the present Petition.

4. Appearing for petitioner, the learned Counsel would submit that there has been no violation on the part of defendant No. 2 of the undertaking given in pursis dtd. 26/10/2016. He would submit in that pursis defendant No. 2 undertook not to part with possession of the Suit property. He would submit that even though the sale deed in respect of Shop No. 9 was executed on 28/10/2016, possession thereof has not been parted by defendant No. 2 in favour of the purchaser. He would submit that the undertaking given in the pursis did not prevent defendant No. 2 entering into the sale deed. He would further submit that nonetheless defendant No. 2 issued notice to the purchaser for allotment of another shop in place of shop No. 9 with a view to defend the application for striking of defence. He would submit that such a conduct on the part of defendant No. 2 would show his bona fides.

5. Mr. Naik would submit that the provisions of Order 39, Rule 11 of the Code are drastic in nature and the Court should not have passed order under that provision which would virtually result in the Suit of plaintiff being allowed in absence of defence on the part of defendant No. 2. He would rely upon the judgment in (Kavita Krishnamurthy Vs. K.N. Krishnamurthy)1, 2015(4) Bom.C.R. 352 : 2015(1) Mh.L.J. 941. He also rely upon the judgment of this Court in (Ramavatar Surajmal Modi Vs. Mulchand Surajmal Modi)2, 2004(Supp.2) Bom.C.R. 298(S.C.) : 2004 S.C.C. OnLine Bom. 44.

6. Per Contra, Mr. Deshmukh the learned Counsel appearing for plaintiff/ respondent No. 2 would oppose the Petition and support the order passed the Dist