- (1.) This is an application filed by the plaintiff in suit No. 9 of 1996 for striking out the defence of the defendant for failure to file the affidavit of documents according to Rules. This application has been filed under Order XI, Rule 21 of the Code of Civil Procedure.
(2.) Briefly stated the facts of the case are these. The suit was filed in the year 1996 claiming a decree for around Rs. 5 crores against the defendant. On service of writ of summons the defendant filed written statement on May 24th, 2002. By an order dated March 29th, 2001 direction was given for expeditious hearing of the suit. The plaintiff took out an application being G.A. No. 2859 of 2002 praying for direction upon the defendant to file affidavit of documents and furnish legible copies of the disclosed documents and allow inspection of the originals. By an order dated July 23rd, 2002 this application was disposed of by directing the defendant to discover the documents within a fortnight from the date of communication of that order. It was mentioned in that order that in default of discovering the documents the plaintiff would be entitled to apply for striking out the defence of the defendant . The defendant did not file the affidavit of documents. The plaintiff took out another application (G.A. No. 445 of 2003) for strik- ing out the defence of the defendant. This application was disposed of by an order dated April 17th, 2003 and by that order last chance was given to the defendant to file affidavit of documents within 4 (four) weeks from April 17th, 2003. It was mentioned in this order that in default of filing the affidavit of documents the defence of the defendant would be struck off and the suit would be heard ex parte. In terms of the order dated April 17th, 2003 the defendant filed a purported affidavit of documents dated May 12th, 2003. This affidavit has not been filed in Form No. 5 prescribed in Appendix C of the Code of Civil Procedure. This affidavit has been filed rather in the form of an affidavit dealing with the case of the plaintiff and annexing the copies of certain documents.
(3.) Mr. Khanna, learned counsel appearing for the plaintiff, submits that the affidavit dated May 12th, 2003 filed by the defendant cannot be considered to be an affidavit of documents filed by the defendant in terms of the order dated April 17th, 2003. He submits that the affidavit was required to be filed in the statutory form and conforming to the requirements indicated in the form. It is his submission that as the defendant has failed to comply with the order dated April 17th, 2003, the default clause incorporated therein has taken effect and as a result it is required to be recorded that the defence of the defendant stood struck out. He contends that because of the casual approach given by the defendant in filing the purported affidavit of documents, the trial of the suit has been delayed and it will appear from the conduct of the defendant that the defendant has not been complying with repeated orders passed by this Court, and hence, in the interest of justice it is required that the striking out of the defence of the defendant is a recorded in this case. The difficulty that is faced by the learned advocate on record for the plaintiff because of the improper affidavit of documents filed by the defendant has been indicated by the learned counsel for the plaintiff by stating that it is not possible to prepare the Judges brief and proceed with the trial of the suit. In support of his contention Mr. Khanna has relied on the Supreme Court decision in the case of M/s. Babbar Sewing Machine Co. v. Tirlok Nath (Sen, J.) reported in AIR 1978 SC 1436 (1437) and the Division Bench Judgment of this Court in this case of Ranipet C. & E. Co. Pvt. Ltd. v. Swastik Stainless Steel Stores, reported in AIR 1986 Cal 76.;