Mankolam Vasudevad Nambudri vs Mankolam Sankaran Nambudri

Abdur Rahim, J.—With regard to the preliminary objection which has been raised here as to the value, all that I need say is that even if at be

doubtful that the court has power to revise the order in this case u/s 115 of the Civil Procedure Code, the order being in the nature of an

interlocutory order, there can be very little doubt that I have ample powers u/s 15 of the Charter Act. This has been held in Pusan Mal v. fenki

Pershad Singh ILR (1901) C. 680, Somasundaram Chettiar v. Manika Vasaka Desika Gnana Sambandha Pandara Sannadhi ILR (1907) M. 60

and C.R.P. 363 of 1910 unreported.

On the merits of the case I am satisfied that the Subordinate Judge had no jurisdiction to pass an order to strike out the defence of the petitioner.

What happened was, the petitioner, who was examined as a witness by the plaintiff, did not attend on the day to which the case was adjourned,

although he had given an undertaking to do so. The Subordinate Judge, there-upon, ordered that his defence might be struck off. The only

provision under which the defence of a defendant can be struck out is that of Order XI, Rule 21, which empowers the court to strike out the

defence of a defendant who fails to comply with an order to answer interrogatories or for the discovery or inspection of certain documents. That

rule does not apply in this case. My attention has been drawn by Mr. Rozario to Order XVI, Rule 20. That rule enables the court to pronounce

judgment against the party who, being present in court, refuses to give evidence, or who refuses to produce any documents in his possession. Here

the defendant was not present in court when the order was passed, and he did not refuse to give evidence or to produce any documents. This rule

also has no application. Lastly Mr. Rozario falls back on Section 151 of the ""Code which says that the provisions of the Code shall not affect any

inherent jurisdiction which the court may possess. But he is not able to satisfy me that the court has got inherent jurisdiction to strike out the

defence of a defendant who failed to appear in time in pursuance of an undertaking given by him to the court, so that he may be further examined

by the other party to the suit, who had summoned him as his witness. The Code provides for ample means of compelling the attendance of

witnesses, and if a witness is in contempt, the court has also power to punish him for such contempt. I am of opinion that the Subordinate Judge

exceeded his powers in passing the order complained of by the petitioner. I therefore set aside the order dated the 16th March 1911. The

respondent will pay the costs of the petition in this court.