AIR 2004 BOMBAY 212 ::2004 (2) Mah LJ 1

Bombay High Court

Hon'ble Judge(s): R. M. Lodha, Anoop V. Mohta , JJ

(A) Civil P.C. (5 of 1908) , O.39 R.11(1)— Parties defying orders of Court - Committing breach of undertaking given to Court - Committing breach of undertakig given to Court - Consequential dismissal of suit of plaintiff or striking off defence of defendant - Provided under O.39, R.11(1) - Said provision is directory and not mandatory. AIR 1996 Bom 69; 2003 (1) All MR 1035, Overruled. Rule 11 of Order 39 as introduced by the Bombay amendment provides for a procedure on parties defying orders of the Court and/or committing breach of any undertaking to the Court. The provision in sub-rule (1) of R. 11 merely vests power in the Court to dismiss the suit or proceeding where the default is by the plaintiff and strike off the defence of the defendant where the defaulter is the defendant. It does not obligate to do so in every case of default. This is further fortified by the provision contained in sub-rule (2) which gives a discretion to the Court that even after the order contemplated under sub-rule (1) of Rule 11 has been passed, upon sufficient cause being shown by the party responsible for the default or contravention or breach and such party makes amended for the default or contravention or breach to the satisfaction of the Court, the Court may restore the suit or hear the defence on such terms and conditions it deems fit. If the Court has powe....