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PETITIONER: BABBAR SEWING MACHINE CO.

       Vs.

RESPONDENT: TRILOK NATH MAHAJAN

DATE OF JUDGMENT07/08/1978

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) SINGH, JASWANT DESAI, D.A.

CITATION:  1978 AIR 1436            1979 SCR  (1)  57  1978 SCC  (4) 188  CITATOR INFO :  RF         1989 SC 162  (12)

ACT:      Defence in  a suit,  striking out of for non-compliance With order  for discovery Civil Procedure Code 1908, (Act V) order XI  rule 21  read With  Section 151, Scope of-Right to cross examine, whether lost.

HEADNOTE:      The plaintiff-respondent  claiming to be an assignee of a debt  under a  deed dated  27th April,  1965, filed a suit against the  defendant-appellant for  recovery of  a certain sum  alleged   to  be   due  to  M  /s  Chitra  Multipurpose Cooperative  Society,  the  assignor.  On  an  interlocutory application moved  by the respondent under order XI rules 14 and 18  C.P.C. for  the  production  of  certain  documents, despite the  objection by  the  appellant  the  Trial  Court directed their  production. The  appellant produced  all the documents in  his possession on 7-2-67, but he was permitted to take  back The  account books as they were required to Be produced before  the Income Tax officer on that day with the direction that  he should  produce them on 23-2-67. On 23-2- 67, when  the appellant appeared in the Court with his books the trial  judge directed him to produce them on 16-3-67 and in the  meanwhile allow  their inspection  to the respondent with three  days’ notice.  The appellant accordingly sent a. letter dt.  25-2-67 asking the respondent to take inspection of the  account books  on 27-2-67  at 6 p.m. in the office d his Counsel.  On his  failure to  do so,  the appellant sent once again  a registered  letter  dt.  1-3-1967  asking  the respondent to  inspect the records on 9-3-67 in his lawyer’s office between  7 p.m.  and 9 p.m. The respondent never sent any  reply   to  the  notice.  Nor,  did  he  avail  of  the opportunity of inspecting the account books at the office of the appellant’s lawyer on 9-3-67. On 16-3-67 the Trial Court passed an order saying that the appellant should produce the books  within   four  days   in  the  Court  to  enable  the respondent’s counsel to inspect them before 29-3-67 i.e. the date fixed  for evidence.  After the  examination  of  three witnesses of  the respondent,  the  trial  Court  asked  the respondent’s Counsel  to apply  under order  XI rule  21  to

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strike out  the defence  of the  appellant. On  31-3-67  the respondent  filed   an  application  accordingly  which  was vehemently opposed  by the  appellant.  The  appellant  also moved both  the  District  Court  and  the  High  Court  for transfer of  the suit  to  some  other  Court  of  competent jurisdiction.  The   High  Court   declined  to   interfere. Thereupon  the  trial  Court  passed  an  order  on  23-5-67 striking out  the defence  of the  appellant and  on 21-6-67 refused permission  to the  appellant’s  counsel  to  cross- examine the  respondent’s witnesses.  The revision  filed by the appellant in the High Court was rejected on 14-8-1968.      Allowing the appeal by special leave, the Court ^      HELD: 1. The penalty imposed by order XI, rule 21 is of a highly  penal nature  and ought only to be used in extreme cases and  should in  no way  be imposed  unless there  is a clear  failure  to  comply  with  the  obligations  laid  5- 520SCI/78 58 down therein.  The stringent provisions of order XI, rule 21 should be  applied only  in extreme  eases  where  there  is contumacy on  the part  of the defendant or a wilful attempt to disregard  the order  of the  Court is established. [62E, 63E]      2. The test laid down is whether the default is wilful. In the case of the plaintiff, it entails in the dismissal of the suit  and, therefore, an order of dismissal ought not to be made  under order  XI,  rule  21,  unless  the  Court  is satisfied that  the plaintiff  was wilfully  withholding the documents which the defendant sought to discover. In such an event, the plaintiff must take the consequence of having his claim dismissed  due to  his default  i.e. by suppression of information which  he was  bound to  give. In  the  case  of defendant, he  is visited  with the penalty that his defence is liable  to be  struck out  and to  be placed  in the same position as if he had not defended the suit. [63 B-D]      3. The power for dismissal of a suit or striking out of the defence  under order  XI, rule  21, should  be exercised only where  the defaulting party fails to attend the hearing or is  guilty of  prolonged or  inordinate  and  inexcusable delay which  any cause  substantial or  serious prejudice to the opposite party. The rule must be worked with caution and may be made use of as a last resort. [63D,E]      Denvillier v.  Myers, (1883)  WN 58,  Banshi  Singh  v. Palit Singh,  7 C.I.J.  295, Haigh,  L.R. (1886)  Ch.D. 478, Twycroft v.  Grant, 1875  W.N. 201, Reg v. Senior, [1889](1) QBD 283; quoted with approval.      Khajah. Assenoolla  Joo v. Khajah Abdool Aziz, I.L.R. 9 Cal. 923  and Allahabad  Bank Ltd.  v. Ganpat  Rai, T.L.R. 1 Lah. 209; approved.      4. It  is travesty  of justice  that  the  trial  Court should have,  in the  facts and  circumstances of  the case, passed an  order striking  out the  defence of the defendant under order  XI, rule 21 and that the High Court should have declined to set it aside. [62D-E]      5.  Applying   the  principle   governing  the  Court’s exercise of  its discretion  under order XI, rule 21, in the instant case, there was no wilful default on the part of the defendant of  the Court’s  order under  Order XI, rule 18(2) for  the   production  of   documents  for  inspection,  and consequently, the order passed by the trial court on 23 May, 1967, striking  out the  defence of  the defendant  must  be vacated and  the trial  must proceed  afresh from  the stage where the  defendant was not permitted to participate. [66C- E]

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    6. A  perusal of  order XI,  rule 21 shows that where a defence is  to be  struck off in the circumstances mentioned therein, the order would be that the defendant ’be placed in the  same  position  as  if  the  has  not  defended’.  This indicates that  once the  defence is  struck off under order XI, rule  21, the  position would be as if the defendant had not defended  and accordingly  the suit  would proceeds  ex- parte. If  the Court proceeds ex-parte against the defendant under order  IX, rule  6(a), the defendant is still entitled to cross-examine the witnesses examined by the plaintiff. If the plaintiff  makes out a prima facie ease the court unable pass a  decree for  the plaintiff. If the plaintiff fails to make out  a prima  facie case,  the Court  may  dismiss  the plaintiff’s suit.  Every Judge  in dealing  with an ex-parte case has  to take  care that  the plaintiff’s  case  is,  at least, prima facie proved. [66E-G]      Santram Singh v. Election Tribunal, [1955] (2) S.C.R. 1 referred to. 59

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2126 of 1968.      Appeal by  Special Leave  from the  Judgment and  order dated 14-8-1968  of the  Punjab and  Haryana High  Court  in Civil Revision No 430 of 1967      In person (C.K. Babbar) for the Appellant.      Harbans Singh for the Respondent.      The Judgment of the Court was delivered by      SEN, J.-  This appeal  by  special  leave  in  directed against the  order of  the. Punjab  and Haryana  High  Court dated 14  August, 1968 upholding an order of the trial court dated 23 May, 1967 striking out the defence of the defendant under order  XI, rule  21 read with section 151 of the Civil Procedure Code, 1908 and directing that the defendant cannot be permitted to cross-examine the plaintiff’s witnesses.      The suit out of which this appeal arises was brought by the respondent  Trilok Nath  Mahajan, as  plaintiff, against the appellant-defendant  M/s. Babbar  Sewing Machine Co., on 9th March,  1966 for recovery of a certain sum alleged to be due  to   M/s.  Chitra   Multipurpose  Co-operative  Society (Jogyana) Ltd.,  Ludhiana which  remained unpaid towards the price of  sewing machines  sold on credit from time to time, claiming to  be an  assignee under  a deed  dated 27  April, 1965. The  transaction sued  upon was  of the year 1959, and the suit  was obviously  barred by limitation. The plaintiff however, pleaded  that the  defendant had  acknowledged  his liability by  his letter  dated 8 March, 1963 for Forwarding cheque No.  01194 dated  7 March,  1963 for Rs. 50  drawn on the Punjab  National Bank  Ltd., Yamunanagar.  The defendant disputed the plaintiff’s claim and pleaded, inter-alia, that he does not owe anything to the said society and as such the suit was  not maintainable,  that there  was no  privity  of contract between  the parties nor does any relationship of a creditor and  debtor exists between them. He further pleaded that the suit was barred by limitation. He also pleaded that the trial court had no jurisdiction to try the suit.      On  11   November,  1966,   the  plaintiff   moved   an application under  order XI,  rules 14 and 18 for production and inspection of the following documents:           (a)  Cash book,  day book  and ledger for the year           1-4-1959 to 31-3-1960 and 1-4-1960 to 31-3-1961. H           (b)  Cash book  and ledger  for the years 1-4-1961

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         to 31-3-1966 60           (c)  All the  original bills  issued in  favour of           the  defendant   by   M/s.   Chitra   Multipurpose           Cooperative Society  Jogyana Ltd.,  including Bill           No. 22  dated 13-5-1960,  Bill No.  43 dated  2-8-           19607 Bill  No. 49  dated 14-9-1960,  Bill No.  53           dated 26-9-1960.           (d)  Original letters  written by the plaintiff to           the defendant and letters addressed by M/s. Chitra           Multipurpose Cooperative  Society Jogyana Ltd., to           defendant.           (e)  Counterfoils of  cheque book  in use  on 7-3-           1963.           (f)  The original cheque No. 01194 dated 7-3-1963.           (g)  Bank pass  book from  1-4-1962  to  31-3-1964           with counterfoils  of the  cheque books with which           the respondent (T.N. Mahajan) firm had an account.      Despite objection  by the defendant, the trial court by its order  dated 11 January, 1967, directed their production on 30  January, 1967 holding that they were relevant for the determination of the controversy between the parties.      On 30 January, 1967, when the suit came up for hearing, the court  adjourned the  suit  to  7  February,  1967,  for production of  the documents. In compliance with the court’s order, on  7 February,  1967, the defendant produced all the documents in  his possession  viz., account  books  for  the years 1959-60  to 1965-65  but he was permitted by the trial court to’  take back the account books as they were required to be produced before the Income Tax officer, Yamunanagar on that day, with the direction that he should produce the same on ’23  February, 1967.  On 23  February, 1967 the defendant appeared in  the court  with his  books but  the trial judge directed him  to produce  them on  16 March, 1967 and in the meanwhile allow their inspection to the plaintiff with three days’ notice.  The defendant accordingly sent a letter dated 25 February, 1967 asking the plaintiff to take inspection of the account  books on  27 February,  1967. On  28  February, 1967, the  plaintiff made  an application that the defendant had not  produced the  documents for inspection but this was apparently wrong,  as is  evident from the registered notice dated 1  March, 1967, sent by the defendant to the following effect:           "After the  last date  of hearing  on 23.2.1967  I      wrote you  a letter  from  Yamuna  Nagar  on  25.2.1967      informing you  that I shall be present in the office of      my counsel  Sh. H.  L. Soni on 27th February, 1967 at 6      p.m. for affording you the inspection of the documents.      I reached  at my  counsel’s  office  at  the  scheduled      informed time but you did not turn up. I 61      kept waiting for you uptil 8.30 p.m. On that day. Later      A I  contacted your  lawyer Shri  S. R.  Wadhera but he      expressed his inability to contact you.           Now I  would be reaching Ludhiana again on the 9th      March, 1967  and shall be available in my lawyer’s Shri      H. L.  Soni’s office from 7 p.m. to 9 p.m. and you will      be free to inspect the documents at the afore-mentioned      venue and during the above-noted time.           Three days’  clear notice  is being  given to you.      Please be noted to this effect "      Admittedly, the  plaintiff never  sent any reply to the notice. Nor  did he  avail of  the opportunity of inspecting the account books at the office of the defendant’s lawyer on 9 March, 1967.

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    On 16  March, 1967  the trial  court  passed  an  order saying that  the defendant  should produce  the books within four days  in the court to enable the plaintiff’s counsel to inspect them  before 29 March, 1967 i.e.. the date fixed for evidence, failing  which the  defence of the defendant would be struck  off. On  29 March,  1967 three  witnesses of  the plaintiff were  examined. After  the  examination  of  these witnesses, the  trial court  asked the  plaintiff’s  counsel that he  should apply  under order XI, rule 21 to strike out the defence  of  the  defendant.  On  31  March,  1967,  the plaintiff accordingly  made an application under C‘order XI, rule 21 read with section 151 of the Code asserting that the defendant had  failed to  comply with the order of the court as regards  production of  documents inasmuch  as he had not produced them for inspection.      The defendant  opposed the  application  stating,  that there was  no failure  on his  part to produce the documents ordered. It  was stated  that  all  the  documents  as  were capable of identification had been produced in the court. It was alleged  that the  plaintiff had  already inspected  the documents that were specifically set out in the application. It was  also alleged  that the  plaintiff had  not once  but thrice or  even four  times inspected  the documents  to his entire satisfaction except that he was prevented from making fishing, roving  and searching  enquiries into  the  entries which had  no relevance  to the  suit transaction.  It  was, therefore, urged  that the striking out of the defence would not he warranted by law.      Feeling apprehensive that he would not get a fair trial at the  hands of  the trial  Judge, the defendant applied to the District Judge, Ludhiana for the transfer of the suit on 10 April,  1967. While  the District Judge was seized of the transfer application, the defendant moved the 62 High Court  for transfer  of the suit to some other court of competent jurisdiction. The High Court by its order dated 15 May, 1967 declined to interfere.      On 23  May, 1967, the trial court passed an order under order XI,  rule 21 striking out the defence of the defendant stating that he was placed in the same position as if he had not defended  the suit  and adjourned  the suit  to 21 June, 1967, for  examination of  the remaining  witnesses  of  the plaintiff. On  21 June,  1967, the  court did  not allow the defendant’s counsel  to cross-examine  plaintiff’s witnesses holding that  in view  of the fact that his defence has been struck off,  he had  no right to participate and, therefore, could not cross-examine the witnesses produced in the court. The defendant  filed a  revision before the High Court which was rejected on 14 August, 1968.      In this  appeal, two  questions are  involved: firstly, whether the  trial court  was justified  in striking out the defence of  the defendant  under order  XI, rule  21 of  the C.P.C., 1908, and secondly, whether the High Court was right in observing that in view of the clear language are of order XI, rule  21 the  defendant cannot  be  permitted  to  cross examine the plaintiff’s witnesses.      It is a travesty of justice that the trial court should have, in  the facts and circumstances of the case, passed an order striking  out the defence of the defendant under order XI, rule ’’1 and that the High Court should have declined to set it aside. The penalty imposed by order XI. rule 21 is of highly penal  nature, and  ought only  to be used in extreme cases, and  should in  no way  be imposed  unless there is a clear failure  to comply  with the  obligations laid down in the rule.

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    Order XI, rule 21 of the Code of Civil Procedure reads:           "21. Where any  party fails  to  comply  with  any      order to  answer interrogatories,  or for  discovery of      inspection of  documents, he  shall, if a plaintiff, be      liable  to   have  his   suit  dismissed  for  want  of      prosecution, and,  if a defendant, to have his defence;      if any,  struck out,  and to  be  placed  in  the  same      position as  if he  had not  defended.  and  the  party      interrogating or  seeking discovery  or inspection  may      apply to  the Court for an order to that effect, and an      order may be made accordingly."      Section 136  of the  Code  of  Civil  Procedure,  1882, corresponding to  order XI,  rule 21 of the C.P.C. 1908, was based upon  order XXXI, rule 20, now replaced by order XXIV, rule 16 framed under the Judi- 63 cature Act.  The practice  of the  English Courts is, and it has always  A been, to make the order a conditional one, and to grant  a little  further time for compliance. In practice this provision is virtually obsolete(l).      Even  assuming   that  in   certain  circumstances  the provisions of  order Xl,  rule 21 must be strictly enforced, it does  not follow that a Suit can be lightly thrown out or a defence  struck out,  without adequate  reasons. The  test laid down is whether the default is wilful. In the case of a plaintiff, it  entails in  the dismissal  of the  suit  and, therefore, an  order for  dismissal ought  not be made under order XT,  rule 21,  unless the  court is satisfied that the plaintiff was  willfully withholding information by refusing to answer  interrogatories or  by withholding  the documents which he sought to discover. In such an event, the plaintiff must take  the consequence of having his claim dismissed due to his  default, i.e. by suppression of information which he was bound  to give:  Denvillier v.  Myers.(2) In the case of the defendant,  he is  visited with  the  penalty  that  his defence is  liable to  be struck out and to be placed in the same position  as if he had not defended the suit. The power for dismissal of a suit or striking out of the defence under order XI,  rule 21,  should  be  exercised  only  where  the defaulting party fails to attend the hearing or is guilty of prolonged or  inordinate and  inexcusable  delay  which  may cause substantial  or  serious  prejudice  to  the  opposite party.      It is  well settled  that the  stringent provisions  of order XI,  rule 21  should be applied only in extreme cases, where there  is contumacy  on the part of the defendant or a wilful attempt  to disregard  the  order  of  the  court  is established.      An order  striking out the defence under order XI, rule 21 of  the Code  should, therefore, not be made unless there has been obstinacy or contumacy on the part of the defendant or wilful  attempt to  disregard the order of the court. The rule must  be worked with caution, and may be made use of as a last  resort: Mulla’s  C.P.C. 13th  Ed. Vol.  I,  p.  581, Khajah Assenoolla Joo v. Khajah Abdool Aziz(3), Banshi Singh v. Palit  Singh(4), Allahabad  Bank Ltd.  v. Ganpat  Rai(5), Haigh v. Haigh(6) and Twycroft v. Grant(7). (1) Halsbury’s Laws of England, 4th Ed., Vol. 13. p. 32. (2) (1883) WN 58. (3) I.L.R. 9 Cal. 923. (4) 7 C.L.J. 29S. (5) I.L.R. 11 Lah. 209. (6) L.R. (1886) Ch. D. 478. (7) 1875 W.N. 201. 64

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    In Haigh v Haigh (supra) Pearson J. observed:      "I have  no  hesitation  in  saying  that  I  have  the      strongest disinclination,  as  I  believe  every  other      Judge has,  that any  case should  be decided otherwise      than upon  its merits. But this order was introduced to      prevent plaintiffs  and defendants from delaying causes      by their  negligence or  willfulness. So  great was  my      anxiety to  relieve this  lady from  the consequence of      her wrong headedness if, by any possibility, I could on      proper terms,  that I  hesitated to  refuse to make the      order asked for, and I have looked into all the cases I      could find  on the  subject to see that the practice of      the Court  has been  on this  order. And  I can find no      case in  the books  where it  has been applied, where a      man knowingly  and wilfully  has allowed judgment to go      by default."      In Twycroft  v.  Grant  (supra)  Lush  J.  interpreting corresponding order  XXXI, rule  20 of  the Judicature  Act, held that he would only exercise the powers conferred by the rule in  the last resort. In England, the party against whom such an  order is  made would, it seems, be entitled to come in and  ask that  the order  might be  set aside  on showing sufficient grounds for such an application.      In Khajah Assenoolla Joo v. Khajah Abdool Aziz (supra), Pigot J. therefore made an order striking out the defence of the defendant  under section  136  of  the  C.P.C.  1882  in consequence of  non-compliance with  the earlier  order  for production of  certain  documents,  and  at  the  same  time mentioned that  the party  against whom  the order  was made might come in and seek to set it aside on showing sufficient grounds for the application.      It is settled law that the provisions of order XI, rule 21, should  be applied only in extreme cases where obstinacy or contumacy  on the  part of  the  defendant  or  a  wilful attempt to  disregard the order of the court is established. As pointed out by Lord Russel C.J. in Reg. v. Senior (1) and affirmed by  Cave L.  C. in  Tamboli v.  G.l.P. Rail way(2), "wilfully" means that:           "the act  is done  deliberately and intentionally,      not by  accident or  inadvertence, but so that the mind      of the person who does the act goes with it."      In this  case, there  was no  default,  much  less  any wilful default, on the part of the defendant, to comply with any order  of the  court under  order  XI,  rule  18(2).  In obedience of the order of the court dated (1) [1899] (1) Q.B.D. 283. (2) I.L.R. 52 Bom. 169 (P.C.). 65 11 January,  1967, the  defendant  came  all  the  way  from Yamunanagar   to Ludhiana  on  27  February,  1967  and  was waiting at  his lawyer’s  office from 6.00 p.m. to 8.30 p.m. when  the   plaintiff  or  his  counsel  did  not  turn  up. Thereafter the  defendant sent  a registered  notice dated I March, 1967  offering inspection  of the  documents  at  his lawyer’s office  on 9 March, 1967, but the plaintiff did not avail of  the opportunity  of inspecting  the documents. The defendant had  filed an  affidavit  that  the  rest  of  the documents were  not in  his  possession  and  could  not  be produced. The account books for the years 1961.. 62, 1962-63 and 1963-64  had to  be produced by the defendant before the Income Tax  officer, Yamunanagar on 31 January, 1967, then 7 February, 1967  and 16  March, 1967.  An affidavit  to  this effect was also filed. It is somewhat strange that the trial court should have fixed the dates which were the dates fixed by the Income Tax officer

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    In view of the notice dated 1 March, 1967, there can be no doubt  that the  defendant had  tried to  comply with the order of  the court  by offering  inspection on 27 February, 1967. There  is no  dispute that  27 February,  1967 was the date mutually  agreed  upon  between  the  counsel  for  the parties. The  only controversy  is about the scheduled time. The time  fixed according  to  the  plaintiff’s  application dated 28 February, 1967 was 2.30 p.m. at his lawyer’s office while that  according to  the  defendant’s  notice  dated  1 March, 1967  it was  6.3() p.m.  in his lawyer’s office. The plaintiff has not examined his counsel, S.R. Wadhera, nor is there any  affidavit by Wadhera. From the material on record it is  amply clear  that the  appointed scheduled  time  and place for  inspection of  the defendant’s  account books was 6.30 p.m. at his lawyer’s office. The plaintiff was afforded another opportunity  of inspection of the account books on 9 March, 1967 at the office of the defendant’s lawyer from 7.0 p.m. to  9.0 p.m.  In the circumstances, the trial court was not justified  in holding  that there WAS any non-compliance of its order under order XI, rule 18(2).      It is  common ground  that the  account books  for  the years 195960  and 1960-61  were Lying  in  court.  The  suit transactions are  of the  year 1959.  Nothing prevented  the plaintiff  from  inspecting  these  books.  As  regards  the account books  for the  years 1961-62  to 1964-65, they were required to be produced before the Income Tax Authorities at Yamunanagar on  20 March, 1967 and - on subsequent dates. It is not  clear what  relevance these  books could have to the controversy between  the parties unless the plaintiff wanted to find some entries to show that there was carry forward of the entries  relating to the suit transaction in the account books for the years 1959-60 to the subsequent years So as to bring his  claim within time. Apparently, there were no such entries in the account books for the years 1959-60 66 and  1960-61.   As  regards   the  bank  pass  book  of  the defendant’s account  with the Punjab National Bank Ltd., for the period 1 April, 1962 to 31 March, 1963 and 1 April, 1963 to 31  March, 1964  and the  counterfoil of cheque No. 01194 dated 7 March, 1963, alleged to be drawn by the defendant in plaintiff’s favour,  the defendant  has sworn  an  affidavit that he  had no  account with  Punjab  National  Bank  Ltd., Yamunanagar during  that period  nor he  had issued any such cheque as  alleged. In  view of this, the order of the trial court dated  23 May,  1967, striking  out the defence of the defendant was wholly unjustified .      The principle  governing the  court’s exercise  of  its discretion under  Order XI,  rule 21,  as already stated, is that it  is only  when the  default is  wilful and as a last resort that  the court should dismiss the suit or strike out the defence,  when the  party is guilty of such contumacious conduct or  there is a wilful attempt to disregard the order of the  court that  the  trial  of  the  suit  is  arrested. Applying this  test, it  is quite  clear that  there was  no wilful default  on the  part of  the defendant of the courts order under  order XI,  rule 18(2)  for  the  production  of documents for inspection, and consequently, the order passed by the trial court on 23 May, 1967, striking out the defence of the defendant must be vacated, and the trial must proceed afresh from  the stage where the defendant was not permitted to participate.      It was  further contended  that the  High Court  was in error in  observing that  ’in view  of the clear language of order X[,  rule 21’  the defendant  has no  right to  cross- examine the plaintiff’s witness. A persual of order XI, rule

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,?1 shows  that where  a defence  is to be struck off in the circumstances mentioned therein, the order would be that the defendant ’be  placed in  the same position as if he has not defended’. This indicates that once the defence is struck of under Order  XI, rule  21, the  position would  be as if the defendant had  not defendant  and accordingly the suit would proceed ex-parte.  In Sangram  Singh v. Election Tribunal(l) it was  held that if the court proceeds ex-parte against the defendant under  order IX, rule 6(a), the defendant is still entitled to  cross-examine the  witnesses  examined  by  the plaintiff. If  the plaintiff  makes out  a prima facie  case the court  may pass  a decree  for  the  plaintiff.  If  the plaintiff fails  to make  out a  prima facie case, the court may dismiss  the plaintiff  s suit.  Every Judge  in dealing with an  ex-parte case has to take care that the plaintiff’s case is,  at least, prima facie proved. But, as we set aside the order  under order XI, rule 21, this contention does not survive for  our consideration.  We, therefore, refrain from expressing any opinion on the question. (1) [1955] (2) S.C.R. 1. 67      For the  reasons given,  the order  passed by the trial court dated  A 23  May, 1967 striking out the defence of the defendant under  order XI, rule read with section 151 of the C.P.C., and  its subsequent  order dated  21 July,  1967 are both set  aside and it is directed to proceed with the trial according to law. There shall be no order as to costs. S.R.                                         Appeal allowed. 68