1. MEHMOOD MAQBOOL BAJWA, J.--- Failure of appellant being defendant in the suit for specific performance instituted by respondent to answer interrogatories resulted in acceptance of application under Order XI, Rule 21 of The Code of Civil Procedure, 1908, (Act V of 1908) (hereinafter called Code) and striking off his defence vide order dated 30-7-2009, assailed by preferring present appeal.
2. 2.Facts in brief for the disposal of present appeal are that respondent instituted suit for specific performance of executory contract of sale dated 11-6-2004. Claim of the respondent was questioned by appellant on legal as well as factual premises. On 19-3-2008, application under Order XI, Rule 4 read with section 151 of The Code was submitted by the respondent to answer interrogatories, requiring the appellant by learned trial Court to submit reply to the application.
3. Being incomplete reply, direction was issued to the appellant on 28-7-2008 to submit answer to complete interrogatories and omission to comply with the said order prompted the respondent to submit application under Order XI, Rule 21 of The Code which was ultimately accepted vide order assailed.
4. 4.Heard.
5. 5.Learned counsel for the appellant while submitting arguments focused his attention to the provision of Order XI, Rule 1 of The Code and contended that "Leave" was required to be granted by the learned trial Court but order dated 19-3-2008 clearly suggests that question of "Leave" was neither considered nor granted and as such order assailed accepting the application under Order XI, Rule 21 of The Code is legally not sustainable. Submitted that reply was required to be submitted by appellant in routine which is not compliance of the provision and as such no superstructure can be raised over it. Argued, that there must have been conscious application of mind by the learned trial Court prior to proceeding further and there should have been specific order regarding grant of "Leave".
6. On the other hand, learned counsel for the respondent while defending the impugned order submitted that time and again opportunities were granted to the appellant for submission of reply which though given but incomplete and again specific direction was issued by learned trial Court vide order dated 28-7-2008 for submission of complete answer to the interrogatories but there was contumacious failure on the part of the appellant to answer the same and as such there was no option with the learned trial Court but to accept the application under Order XI, Rule 21 of the Code. Learned counsel for the respondent placed reliance upon "Messrs Delhi Vanaspati Syndicate v. R.C. Chawla" (AIR 1983 Jammu and Kashmir 65).
7. 5.In order to appreciate the respective contentions, relevant provisions of Order XI of The Code are to be examined.
8. 6.Facts can be established either for the purpose of proving a party's case or for questioning the claim of adversary. The facts may be proved either in accordance with law or by admission which may be procured by the issuance of interrogatories to such party.
9. Rule 1 requires that "Leave of the Court" must be obtained. Without leave of the court, which would be result of conscious judicious attempt on the part of the court, no further proceedings can be initiated. Rule 2 of Order XI explains the mode of submission of interrogatories which also provides the element of "Leave of the court". Rule 4 suggests that interrogatories shall be submitted in Form No.2 of Appendix (C) with such variations as per requirement. Rule 6 gives right to the other party to submit objections to answer interrogatories which objections are to be decided under Rule 7 and after the decision, interrogatories shall be answered by submitting affidavit within 10 days or in time extended. Form of the said affidavit has been explained in Rule 9, according to which it shall be in Form No.3 in Appendix (C) with certain variations as needed. Under Rule 11, court may require the person "under interrogation" to answer the same in explicit form if insufficiently answered or omitted to reply. Rule 21 deals with the penal consequences due to failure of the person to answer interrogatories.
10. 7.Scheme of Rules 1 to 11 of Order XI of The Code clearly suggests that penal provisions envisaged in Rule 21 can only be applied if the earlier mentioned provisions are complied with.
11. Rules 1 and 2 of Order XI suggest that there must be application for "Leave of the court". Though the form of the application may be immaterial but keeping in view the provisions of Rules under reference, there can be no two opinions that the further process of interrogatories is subject to "Leave of the court". While granting "Leave", there must be judicious application of mind by the court and "Leave" cannot be readily inferred. Reference may be made to "Premsukh Chunder and others v. Indro Nath Baner Jee" (ILR Vol.XVIII Calcutta Series 420 (Full Bench Reference)". Same rule of law was enunciated in "Sham Kishore Mundle v. Shoshib Hoosun Biswas" (ILR Calcutta Series Vol. V page 707).
12. Same rule of law was expounded in the case of "Messrs Delhi Vanaspati Vndicate v. R.C. Chawla"
13. (AIR 1983 Jammu and Kashmir 65) cited at bar by learned counsel for the respondent. Dealing with the proposition it was held that court is not supposed to serve interrogatories on other side with direction to answer them as automation and it has to apply its mind to facts and circumstances of the case.
14. Admittedly, the learned trial Court did not deal with the question of grant of leave within the meaning of Rules 1 and 2 of Order XI of The Code.
15. Referring to the order dated 28-7-2008, it was submitted by learned counsel for the respondent that direction contained in the said order was made under Rule 11 and as such penal action was rightly initiated by learned trial Court through order assailed.
16. Argument would not advance the plea of respondent for the simple reason that provision of Rule 11 can be pressed into service only if there is compliance of Rules 1, 2, 4, 8 and 9 of Order XI.
17. Non-compliance of the provisions referred to particularly those contained in Rules 1 and 2 will not empower the court to make an order under Rule 11 and then under Rule 21 in case of non- compliance of Rule 11.
18. 8.Pursuant to above discussion, this Court is of the considered view that learned trial Court was not competent to make an order under Rule 21 of Order XI of The Code.
19. 9.Consequently, while accepting the appeal, order assailed is hereby set aside and matter is remanded to the learned trial Court to decide the application of respondent afresh made under Order XI, Rules 1 and 4 of The Code keeping in view the observation made by this Court and scheme of Order XI of The Code stated briefly.
20. 10.Since the matter is old, therefore, the learned trial court is directed to decide the application made by respondent expeditiously but not later than 15th of February, 2013.
21. 11.There shall be no order as to costs.