Decided on April 20,1955

The Governor General In Council Appellant
Firm Dau Dayal Ganga Prasad Respondents


Oak, J. - (1.) THESE are two connected First Appeals from two successive orders passed by the trial court on the question of striking out defence on the ground that interrogatories were not answered by the Defendant as ordered by the trial court. The appeals arise out of a suit brought by a firm Dau Dayal Ganga Prasad against the Governor -General -in -Council for damages. On 23rd January, 1948 the Plaintiff served interrogatories upon the Defendant. The court called upon the Defendant to reply to the interrogatories within a month. In compliance with that order the Defendant filed a reply on 23rd February, 1948, answering some of the questions and objecting to others. The Plaintiff moved another application on 13th March, 1948, demanding further answers from the Defendant to the interrogatories issued by the Plaintiff. On 20th March, 1948, the court ordered the Defendant to answer the interrogatories within three weeks. The order dated 20th March, 1948, does not seem to have been complied with by the Defendant. On 12th April, 1948, the Plaintiff moved application No. 48/C requesting the court that the defence of the Defendant be struck out. The application was taken up by the court on 22nd April, 1948. On that day the counsel for the Defendant were absent. The court passed an order on 22nd April, 1948, to the effect that, the defence will be struck off under Order XI, Rule 21, Code of Civil Procedure if the Defendant did not give answers within a further period of two weeks. On 26th May, 1948, the Plaintiff brought to the notice of the court that, the Defendant had not answered the interrogatories as directed by the court on 22nd April, 1948, The Defendant put in appearance before the court, and moved two applications. One application was for review of the previous order, and the other application was for permitting the Defendant to appear in the suit. These connected applications were disposed of by the learned Civil Judge by his order dated 20th August, 1948. He held that by virtue of the previous order dated 22nd April, 1948, the defence automatically stood struck out as from the expiry of three weeks from 22nd April, 1948. The Defendant filed appeal No. 273 of 1948 against the order dated 20th August, 1948. The Defendant has filed a separate appeal No. 93 of 1949 against the previous order dated 22nd April, 1948.
(2.) THE main controversy involved in these connected appeals is about the interpretation of the lower court's order dated 22nd April, 1948. According to the Plaintiff, the defence automatically stood struck out after the expiry of the period fixed in the order dated 22nd April, 1948. According to the Defendant, the court had to pass a separate order actually striking out the defence. In Gulraj Shroff v. Kaniram Sureka, I.L.R. 1938 (2) Cal. 14 it was held that Order XI, Rule 21, Code of Civil Procedure contemplates ordinarily the making of two orders: first, an order for discovery or inspection, and secondly, upon default on the pan of the Plaintiff, an order of dismissal of the suit for want of prosecution. It was further held that there was no difference in the two expressions, 'the suit be dismissed' and 'the suit do stand dismissed'.
(3.) IN Sewaratan v. Kristo Mohan Shaw : A.I.R. 1922 Cal. 320 the order ran as follows: If the money is not paid by the first June, the suit will be dismissed with costs.;

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