Admittedly the averments in the written statement are vague. Therefore, in order to meet the pleadings in the written statement the plaintiff has called upon the defendants' answer the interrogatories.
Though the plaintiff has taken the objection regarding vagueness of the written statement the defendants have not made any attempt to amend the written statement by supplying particulars. In absence of particulars such pleas taken by the defendants are liable to be rejected on the ground of vagueness. Order 6, Rule 5, C.P.C. provides for calling upon the defendants to supply further particulars. Reading Order 6, Rule 5, C.P.C. and Order 11, Rule 1, C.P.C. in my opinion, there is no prohibition under the Code that in absence of compliance with Order 6, Rule 5, C.P.C. the party to the proceeding cannot resort to the provision of Order 11, Rule 1, C.P.C.
Orissa High Court
Bhakta Charan Mallik vs Nataorar Mallik And Ors. on 21 December, 1990
Equivalent citations: AIR 1991 Ori 319
A.K. Padhi, J.
1. Challenging the order rejecting the application for interrogatories under Order 11, Rule 1, C.P.C. the plaintiff has filed this Civil Revision. The suit is for partition.
2. In the written statement the defendant took the stand that:
(a) Some of the properties belonging to the joint family has been left out from hotchpot;
(b) Properties alienated before filing of the suit have been included in the suit schedule; and
(c) Some of the plots included in the suit schedule have been exclusively settled in the names of the defendants.
3. Plaintiff filed a petition under Order 11 Rule 1, C.P.C. calling upon the defendants to answer the interrogatories on the ground that the averments in the written statement are vague. The three interrogatories which the plaintiff prayed to be served on the defendants are :--
(i) "What other joint family properties have been left out from the suit as stated by you in para 5 of your written statement and the detailed descriptions?
(ii) Have you sold any land out of the suit properties? Give the name and address of the purchasers, the dates of sales and the properties sold?
(iii) That in para 15 of your written statement you have mentioned that the suit plots Nos. 227, 1708. and 1711 under khata No. 125 has been settled in your name, Please furnish as to when it was settled and by whom?"
Defendants filed their counter to the application under Order 11 Rule 1, C.P.C. Trial court rejected the application on the ground that the plaintiff can know as to which of the properties have been settled with the defendants, which properties have been sold to strangers. Since the onus is on the plaintiff to prove its own case, the defendants should not be called upon to answer the interrogatories.
4. Learned advocate for the petitioner assailing the rejection order submits that in the interest of justice the defendants should be called upon to answer the interrogatories. The averments in paras 5, 13 and 15 in written statement are vague in nature. Therefore, to shorten the litigation the interrogatories should be allowed.
5. The learned advocate for the opp. parties on the other hand, submits, if pleadings are vague then plaintiff has remedy under Order 6 Rule 5, C.P.C. A specific provision being there under Civil Procedure Code to call upon the defendants to clarify the pleadings, the plaintiffs application under Order 11 Rules 1 and 4, C.P.C. is not maintainable. Order passed rejecting the application under Order 11 Rule 4, C.P.C. not being in the nature of a case decided is also not revisable under Section 115 of C.P.C. Order 11, Rule 1, C.P.C. is meant for shortening a litigation calling the defendants to admit certain facts. In this case the application of the plaintiff being by way of clarification does not come within the scope of Order 11, Rule 1, C.P.C. and therefore the application had been rightly rejected.
6. Order 11, Rule 1, C.P.C. reads as follows:--
"Discovery by interrogatories. '
In any suit the plaintiff or defendant by leave of the Court may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties. As such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer:
Provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose:
Provided also that interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness,"
Obviously the purpose of this rule is to enable a party to require information from his opponent for the purpose of maintaining his own case or for destroying the case of the adversary. The main object of interrogatories is to save expenses and shorten the litigation by enabling a party to obtain from his opponent information as to the facts material regarding the question in dispute between them or to obtain admission of any facts which he has to prove on any issue which is raised between them. As a general rule, interrogatories are to be allowed whenever the answer to them will serve either to maintain thecase of the party administering them or to destroy the case of the adversary. The power to serve interrogatories as it appears is not meant to be confined within narrow technical limits. It should be used liberally whenever it can shorten litigation and serve the interest of justice. However, this can be exercised within certain limits. The power to order interrogatories to he served and answer should be used with considerable care and caution, so that it is not abused by any party. A party entitled to interrogate his opponent with a view to ascertain what case he has to meet and the facts relied on and to limit the generality of the pleadings and find out what is really is in issue See AIR 1934 Nagpur 181 Shamrao v. Motiram. At the same time interrogatories must be confined to facts which are relevant to the matters in question in the suit. Interrogatories which are really in nature of cross-examination will not be allowed see AIR 1972 SC 1302 Raj Narain v. Smt. Tndira Nehru Gandhi.
In AIR 1914 Calcutta 767 Baijnath Kedia v. Raghunath Prasad, his Lordship has opined that interrogatories can be administered in the same manner as in England for discovering facts in issue. This is how his Lordship has put it (;it page 768):
".......So far as I can see, it is nowhere suggested that a party to a suit was not entitled to discovery relating to the facts directly in issues on the pleadings. As a matter of fact, if you once come to that conclusion at all the rules relating to discovery by interrogatories would be practically useless, because if you cannot interrogate as regards the facts put directly in issue by the pleadings. I do not know what you can interrogate upon.........."
In ILR (1964) Cuttack 958 Ganga Devi v. Krushna Prasad Sharma, his Lordship while considering as to whether interrogatories can be administered in respect of the matter arising out of Section 24 of the Hindu Marriage Act, 1955 as an order under Section 24 of the Hindu Marriage Act is interlocutory in the sense that it arises out of a divorce proceeding. His Lordship has observed :--
"Even assuming that Section 141, Civil Procedure Code, has no application to interlocutory proceedings in a suit, the Court can issue interrogatories under Section 151, Civil Procedure Code. In respect of matter arising under Section 24 of the Act. there is no provision in the Code of Civil Procedure expressly prohibiting that the remedy, prescribed in Order 11, would not be available to interlocutory proceeding. In the absence of an express prohibition, it is now well settled in AIR 1962 SC 527 Manohar Lal Chopra v. Rai Bahadur Rao Raja Seh Hiralal that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. The Court can, therefore, under Section 151, permit interrogatories being served to shorten the prolonged course of interlocutory proceedings.
8. It would now be pertinent to examine the scope of Order 11, Civil Procedure Code, The main object of interrogatories is to save expenses by enabling a party to obtain an admission from his opponent which makes the burden of proof easier. It would certainly not to be extended to prying into the evidence wherewith the opposite-party intends to support his case.............."
The Calcutta High Court decision in Baijnath Kedia's case (supra) was followed by this Court in the case of Ganga Devi v. Krushna Prasad Sharma : AIR 1967 Orissa 19 wherein it was observed (at page 23):
"........These, in substance, are generally the matters to which interrogatories should be directed. Under Order 11, C.P.C. interrogatories can be administered in the same manner as is done in England, for discovering the facts in issue......"
In Civil Revision No. 354 of 1983, disposed of on 23-6-1986 Banchhanidhi Nayak v. Bhagabat Goswami Thakur Sebayat His Lordship has observed:
".......From the provisions stated above it is clear that while considering the question for leave to deliver interrogatories the court has to consider whether the interrogatories submitted are necessary either for disposing fairly of the suit or for saving costs........."
In (1988) 1 OLR 379 : (AIR 1989 Orissa 216) Shri Janaki Ballav Patnaik v. Bennett Coleman and Co. Ltd. his Lordship has observed (at page 217 of AIR);
"Every party to a suit is entitled to know the nature of his opponent's case, so that he may know beforehand what case he has to meet at the hearing. But he is not entitled to know the facts which constitute exclusively the evidence of his opponent's case, the reason being that it would enable an unscrupulous party to tamper with his opponent's witnesses, and to manufacture evidence in contradiction, and so shape his case as to defeat justice. The nature of a plaintiffs case is disclosed in his plaint. The nature of a defendant's case is disclosed in his written statement. But a plaint or a written statement may not sufficiently disclose the nature of a party's case, and to make good the deficiency, either party may administer interrogatories in writing to the other through the Court.........."
In (1987) 1 OLR 367 ( Utkal Milling Industries v. Anand Kumar Chhagan-lal), considering the scope of Order 11, his Lordship has opined (at page 370) :--
"..........Keeping the principles of aforesaid decisions and the legislative intention, the trial Court ought to have considered whether the interrogatories would help the fair trial and would save the cost of litigation which are the two material considerations for granting leave, apart from the objections as indicated in Rule 6 of Order 11, C. P.C., which have not been raised in this case. Availability of the answer in the written statement is not a ground to refuse the leave and the refusal as in this case is, therefore, based on extraneous considerations."
7. In the case at hand the defendants have pleaded in the written statement in paragraphs 5, 13, 15 as follows: --
Paragraph-5:
"That all the joint family properties have not been brought to hotpotch. Therefore the suit is not tenable."
Paragraph- 13:
"That Sundari Dei wife of defendant No. 1 has purchased lands out of suit lands and is in possession of the said lands which should be excluded from the suit lands."
Paragraph-15:
"That plot No. 277 A.O.26, 1708 A.O.11, 1711 A.O.17 under holding No. 1125 of 'B' schedule land has been exclusively settled in the name of the defendant No. 1 and this defendant is in possession of the same. Plaintiff or any body has no right, title, interest or possession over it. The said land cannot be the subject matter of the partition and is to be excluded from the suit."
Admittedly the averments in the written statement are vague. Therefore, in order to meet the pleadings in the written statement the plaintiff has called upon the defendants' answer the interrogatories.
Though the plaintiff has taken the objection regarding vagueness of the written statement the defendants have not made any attempt to amend the written statement by supplying particulars. In absence of particulars such pleas taken by the defendants are liable to be rejected on the ground of vagueness. Order 6, Rule 5, C.P.C. provides for calling upon the defendants to supply further particulars. Reading Order 6, Rule 5, C.P.C. and Order 11, Rule 1, C.P.C. in my opinion, there is no prohibition under the Code that in absence of compliance with Order 6, Rule 5, C.P.C. the party to the proceeding cannot resort to the provision of Order 11, Rule 1, C.P.C.
8. Keeping the above principles in view and analysing it, I am of the opinion that the interrogatories should be allowed to enable the plaintiff to know the nature of the defendants' case, so that he may know beforehand what case he has to meet at hearing. This will enable the parties to have a fair trial and will shorten the litigation.
9. Opposite parties have raised the contention that the revision is not maintainable as the order rejecting the application under Order 11, Rule 1, C.P.C. is not a case decided.
In a decision reported in AIR 1978 Orissa 179 ( Tata Iron & Steel Co. Ltd. v. Rajarishi Exports (P) Ltd.) his Lordship has observed (at page 181):
"........The revisional power of this Court is circumscribed by the provisions of Section 115, C.P.C. It is well settled that the special and extraordinary revisional jurisdiction of this Court is exercised only to promote justice, and that power should not be exercised unless it is found that the party approaching the court under Section 115, C.P.C. has no other remedy in law open to him to set aright his grievance, if any. Moreover, as provided in clause (b) to the proviso to Section 115 (new), this Court shall not exercise its revisional jurisdiction if it is not shown that the impugned order, if allowed to stand, would occasion a failure of justice or cause irreparable injury against whom it was made."
Whether the interrogatories should be allowed or not is a question within the jurisdiction of the Court. The error of procedure committed by the learned Sub-Judge lay in the fact that he did not attempt to formulate the correct legal position and to apply the Same to the facts of the case. The resultant conclusion is that the Court, while deciding a question within jurisdiction acted in the exercise of it with material irregularity (see AIR 1949 PC 156, N.S. Venkatagiri Ayyangar v. The Hindu Religious Endowments Board, Madras; AIR 1959 SC 492, Chaube Jagdish Prasad v. Ganga Prasad Chaturvedi and ILR (1964) Cuttack 958 (supra)). Therefore under Section 115, C.P.C. it is open to the High Court to make such order as it deems fit.
10. In the result, the order of the learned Subordinate Judge is set aside and the Civil Revision is allowed. The defendants are directed to answer the interrogatories before the Sub-Judge within eight weeks from the date of the judgment.
11. In the circumstances of the case, there shall be no order as to costs.
No comments:
Post a Comment