IMPORTANT POINTS
Plaintiff must take the consequence of having his suit dismissed. On the other hand, if it is the case of the defendant his defence is liable to be struck off and he is to be placed in the same position as if he had not defended the suit. But it is settled legal position that Court should exercise the stringent provisions only in extreme cases, where there is contumacy on the part of the defendant or a willful attempt to disregard the order of the Court. If there was no default much less any willful default on the part of the defendant to comply with the order of the Court, Court is not to exercise the stringent power.

JUDGMENT :

1. The appellants are defendants in O.S No.103/1998 on the files of Principal Sub Court, Ernakulam (For short, 'the trial court'). The suit was filed before the trial court by the respondent seeking for realisation of a sum of Rs.5,89,353.78 with interest @ 18% per annum from the appellants.

2. The suit was decreed by the trial court by judgment dated 25.6.2001 and a decree followed the judgment. Aggrieved by the aforesaid judgment and decree in the suit, the defendants are now before this Court in the appeal on hand.

3. The contention of Sri.K. Jayakumar, the learned counsel for the appellants was that the decree and judgment passed by the trial court is illegal and infirm and therefore unsustainable. According to him, an Interlocutory Application was filed by the plaintiff before the trial court as I.A No.1495/2000 under Order XVI Rule 6 of the Code of Civil Procedure, 1908 (for short, 'C.P.C') seeking for a direction to the defendants in the suit to produce the registered mortgage deed dated 26.4.1971 of Ernakulam Sub Registry and the Statement of Accounts and Ledgers in relation to the suit transaction. The above I.A was allowed by the trial court on 31.5.2000 and direction was issued to the defendants to produce the documents summoned or to file an affidavit on 04.08.2000 stating that the documents sought for production are not available with them. Despite grant of opportunities, neither the documents summoned were produced nor the affidavit as directed by the trial court was filed.

4. Thereupon, an Interlocutory Application as I.A No.2536/2001 was filed by the plaintiff, seeking to strike out the defence. The application was firstly entertained by the trial court on 02.06.2001 and posted for objection and hearing to 14.06.2001. On 14.06.2001, though objection was filed, the application was posted for hearing to 15.06.2001. On 15.06.2001, the application was heard and posted for orders to 18.06.2001. After several postings, ultimately on 25.06.2001, a detailed order was passed in the Interlocutory Application, allowing the same. On the very same day, the suit was also decreed.

5. It is urged by the learned counsel that the plaintiff has moved I.A No.1495/2000 under Order XVI Rule 6 C.P.C and not under Rule 12 or 15 of Order XI C.P.C. According to him, only when an application was filed under Rule 2, 12 or 15 of Order XI C.P.C respectively for submission of interrogatories, discovery or inspection of documents and when orders were passed allowing the applications, for willful non-compliance of those alone, Order XI Rule 21 C.P.C shall be invoked by the court to strike out the defence. According to him, the application filed in the case on hand is under Order XVI Rule 6 C.P.C and the direction to produce the documents, even if not complied with, that does not confer power on the court to invoke jurisdiction under Order XI Rule 21 C.P.C. Therefore, the learned counsel has contended that the order passed by the court below in I.A No. 2536/2001, filed under Order XI Rule 21 C.P.C, striking out the defence is without jurisdiction. According to him, the judgment and decree passed by the trial court also suffers from illegality in the context and being unsustainable is liable to be reversed.

6. The contention secondly advanced by the learned counsel was that even in a case where the defence was struck out legally, that would not hamper the right of the defendants to cross examine the plaintiff. In the case on hand, after striking out the defence vide order passed in I.A No.2536/2001 on 25.06.2001, the trial court allowed the suit without any opportunity being granted to the defendants to cross examine the plaintiff. According to the learned counsel, for that reason also, the judgment and the decree passed by the trial court is infirm.

7. It is contended thirdly that even if the defence was struck out, that would not absolve the plaintiff from proving his case by adducing reliable and cogent evidence. In the case on hand, by a