MEGHAMALA ROY Vs. STATE OF W B

JUDGEMENT

(1.) This application had been taken out by the State of West Bengal for an order that the time to file the affidavit of documents by the petitioner as originally fixed by the order dated 12-1-1982 passed by Mr. Justice D. K. Sen be extended and the petitioner be allowed time to file its affidavit of documents.

(2.) This suit had been filed on 26-3-1969 by one Bidyut Barani Debi inter alia for a declaration that the order dated 30-9-1966 made in Civil Rule No. 633 of 1960 by this Court in its Civil Revisional Jurisdiction was not binding on the plaintiff and/or for setting aside and/or recalling the said order as also the compromise affirmed on 21-9-1966 and filed in the Civil R. No. 633 of 1960 and Civil Rule No. 1852 of 1960 be adjudged void and for other consequential reliefs. 2A. On 16th April, 1973 the original plaintiff died intestate leaving her surviving the present plaintiffs as her only heirs arid legal representatives. By an order dated 10-2-1976, Mr. Justice Pyne substituted the plaintiffs in the place, and stead of the original plaintiff. The writ of summons in the suit was duly served upon the petitioner long before and it entered appearance through its advocate on record Sri R. C. Deb. On 22-3-1976, the petitioner filed its written statement. Thereafter upon the application of the plaintiff by an order dated 7-8-1980 Mr. Justice T. K. Basu allowed an amendment of the plaint incorporating there the claim of the plaintiff to the extent of Rs. 9,57,974/- being the market value of the land as on 31-12-1946. Thereafter the plaintiff made an application for discovery against the petitioner and by order dated 22nd July, 1981 Mr. Justice D. K. Sen directed the parties to file their affidavit of documents. The plaintiffs in this suit duty filed their affidavit of documents, but the petitioner State of West Bengal could not file its affidavit in time. Thereafter, the petitioner filed an application on 15-12-1981 for a peremptory order of discovery against the petitioner. On 12-1-1982 Mr. Justice D. K. Sen directed the State of West Bengal to file its affidavit of documents within four weeks from date and in default the defence was directed to be struck out. The petitioner was also directed to pay the cost of that application. It appears that under the said order the last date for filing the affidavit of documents was 9-2-1982 but the petitioner affirmed an affidavit of documents on 11-2-1982, but never chose to file the same in Court. According to the petitioner it completely escaped the notice of the petitioner's advocate on record to file the same with leave of the Court inasmuch as the original time given in the last order had already expired and the petitioner could not file the same. Thereafter, the suit appeared in the Warning List of Mrs. Justice Monuula Bose on 4-2-1983 whereupon at the instance of the petitioner the said suit was adjourned till 13-2-1983. According to the petitioner it is only then after searching the cause papers the petitioner's advocate on record found that the original affidavit of documents was never filed in Court nor any leave was obtained from this Court for extension of time nor prayed that the original time fixed by Mr. Justice D. K. Sen dated 12-1-1982 be extended enabling the petitioner to file its affidavit of documents.

(3.) Mr. Parthasarathi Basu, the learned advocate appeared in support of this application and submitted that this application was maintainable in view of the decision reported in AIR 1978 Cal 160, AIR 1975 Cal 80 (FB) and submitted that the single Bench judgment of Mr. Justice Protibha Bonnerjea reported in AIR 1979 Cal 64 was obviously erroneous inasmuch as this judgment was passed in complete disregard of the Division Bench decision reported in AIR 1978 Cal 160, the ratio whereof was completely against the order passed by the learned Single Judge.He further submitted that there was no wilful default on the part of the defendant as a result this Court should extend the time for filing of the affidavit of documents. Apart from that he submitted that O.11, R.21 envisages two orders inasmuch as it provides where any party fails to comply with any order for discovery if he is a defendant his defence is liable to be struck out and be placed in the same position as if he had not defended the suit and the party seeking discovery may apply to Court for an order to that effect and the order be made accordingly. This rule according to Mr. Basu cannot be applied unless there had been a prior order of discovery. He further submitted that the power to struck out should not be exercised except in extreme case. From the said order an appeal lies but the petitioner had chosen not to prefer an appeal from the said order.