A defendant whose defense has been struck off for non-compliance with an order to answer interrogatories is not barred from filing an appeal against the decree passed in the suit.

S.B.Kapoor, J.

1. This regular second appeal raises an interesting legal point which is so unique that no direct authority could be cited by the learned counsel for the parties.

2. The suit from which this appeal has arisen was instituted as far back as the year 1959. The plaintiff prayed for a declaration that the order elated the 1.08.1957, passed by the State Bank of Patiala posting him as an Accountant in its Branch at Narnaul de f rading him from the post of Manager ol Kasauli Branch was illegal, mala fide and ultra vires. In addition to claiming some house-rent allowance, he also prayed for a declaration that the withholding of the plaintiffs promotion from 1-1-1952 was illegal, mala fide and an act of discrimination and that he was entitled to promotion to that grade from the aforesaid date. The plaintiff also challenged the order of his premature compulsory retirement dated the 7th June, 1958. contending that it was void and that the plaintiff still continued to be in service. A money claim as regards arrears of salary and future salary, which would accrue to him, was also made. The defendant was initially the State of Punjab and subsequently the State Bank of Patiala was also joined. The defendants re- sisted this suit and at many as 15 issues were framed.

3. In the course ol trial of the suit an application was made by the plaintiff for the issue of interrogatories to the defendants and the trial Court ordered the issue of notice of the application to the other side on the 14th July, 1960. However, the interrogatories were not answered and on the 22nd August, 1960. the plaintiff filed an application praying that the defence of the defendants be struck off for the defendants non-compliance. Eventually, by an order dated the 8.08.1961, the trial Court struck off the defence of the defendants on the ground that reply to the interrogatories had not been put in though several adjournments had been granted for the purpose. The defendants appealed against that order and (vide his order dated the 20th February, 1962), the Additional District Judge, Ambala (at Patiala), dismissed the appeal and held that it was not competent in his Court. The defendants then approached the High Court which by its judgment dated the 8th April, 1962, allowed the appeal and set aside the order striking off their defence subject, however, to the payment of Rs. 100 as conditional costs. These costs in the High Court were even not paid before the due date and so the trial Court by its order dated the 18th May, 1962, held that its earlier striking off the defence of the defendants subsisted. This order was again challenged in the High Court in appeal as well as Letters Patent Appeal but with no success. The copy of the judgment of the Letters Patent Bench dated the 27.02.1963, has been placed on the record.

4. On the case being remitted to the trial Court, the defendants prayed for an opportunity to cross-examine the plaintiffs witnesses but this was not permitted on the ground that their defence had been struck off. The trial Court by its order dated the 3.08.1964, held that the defendants were barred even from addressing arguments to it.

5. Ultimately, considering the evidence already on the record, the trial Court in its elaborate judgment dated the 3rd October, 1964, held that "the order of the compulsory retirement of the plaintiff is illegal unconstitutional, mala fide, void and not binding on the plaintiff and that the plaintiff continues to be in the service of the Bank. It is further heid that the plaintiff is entitled to be promoted to the Managers grade of Rs 250-15-340/EB -20-440 with effect from 1.01.1952 and that his promotion had been withheld illegally A decree for Rs. 3,690.00 is passed in favour of the plaintiff against the defendants. The defendants shall pay proportionate costs of the suit in addition The defendants shall pay interest on the sum of Rs. 3,599.00 at the rate of 6 per cent from 30.12.1959 till realisation"

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