Orissa High Court
Sukanta Kumar Biswal And Another vs Hrudananda Biswal And Others .... Opp. ... on 4 December, 2023
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: ROJALIN NAYAK
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 05-Dec-2023 18:26:04
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO.1401 OF 2023
Sukanta Kumar Biswal and another .... Petitioners
Mr. Darpahari Dhal, Advocate
-versus-
Hrudananda Biswal and others .... Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 04.12.2023
01. 1. This matter is taken up through hybrid mode.
2. Order dated 20th October, 2023 (Annexure-10) passed by learned Senior Civil Judge, Salipur in CS No.107 of 2022 is under challenge in this CMP, whereby an application filed by the Petitioners-Plaintiffs under Order XI Rule 11 CPC to direct the Defendant Nos.1 to 4 to further answer interrogatories made under Order XI Rules 1 and 2 CPC, has been rejected.
3. Mr. Dhal, learned counsel for the Petitioners submits that the suit has been filed for partition. The Plaintiffs claim that the suit lands are joint family properties but the Defendant Nos. 1 to 4 in their written statement have categorically stated that the Defendant No.1 purchased suit Plot No.969 to an extent of Ac. 0.015 dec. and Plot No.968 to an extent of Ac. 0.07 dec. from Surendranath Bisoi son of Dibakar Bisoi. The Defendant No.1 also stated that Chaka Plot No.1325 of Ac.0.59 dec. has been purchased from Nilamani Mahunt and Chakradhar Biswal prior to the consolidation operation and accordingly, the consolidation ROR has been prepared in their name. But, they have not stated the manner and details of acquiring the said properties in their written statement. Thus, before Page 1 of 5 Signature Not Verified Digitally Signed // 2 // Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 05-Dec-2023 18:26:04 commencement of trial the Plaintiffs delivered interrogatories by filing an application under Order XI Rules 1 and 2 CPC to the Defendant Nos. 1 to 4 to answer. The interrogatories are as under:
"1. What is the number of the document and the date of its registration under which defendant no-1 purchased the suit land appertaining to Plot No-969, Area Ac-0.15 decimal and Plot No-968, Area Ac-0.17 decimal in Lot No-2 of Schedule-"Kha" from Surendranath Bisoi.
2. What is the number of the document and the date of its registration under which defendant no-1 purchased the suit land appertaining Chaka Plot No-1325 Area Ac-0.59 decimal in Lot No-2 of Schedule "Kha" from Nilamani Mahunt and Chakradhar Biswal.
3. What is the number of the document and the date of its registration under which the defendant no-1 purchased ½ share from the suit land appertaining to Lot No-3 of schedule "Kha" from Banamali Biswal.
4. What is the name and address of the co-owner from whom defendant no-1 purchased ½ share out of Lot No-4 of schedule "Kha" and what is the number of the document and the date of its registration under which the said land was purchased."
4. The said application was rejected. Being aggrieved, the Plaintiffs preferred CMP No.924 of 2023 and vide order dated 23rd August, 2023 this Court disposed of the CMP with the following direction:
"9. Accordingly, this Court while setting aside the impugned order under Annexure-4 remits the matter to learned trial Court to adjudicate the petition under Order XI Rules 1 and 2 CPC afresh giving opportunity of hearing to the parties concerned."
5. Accordingly, the petition under Order XI Rules 1 and 2 CPC filed by the Plaintiffs was adjudicated afresh and was allowed directing the Defendant Nos. 1 to 4 to answer the interrogatories. The Defendant Nos. 1 to 4 answered the interrogatories on 7th October, 2023 (Annexure-7).
Page 2 of 5 Signature Not VerifiedDigitally Signed // 3 // Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 05-Dec-2023 18:26:04
6. Mr. Dhal, learned counsel for the Petitioners submits that although they have answered the Interrogatory Nos. 3 and 4 properly, but they did not answer the Interrogatory Nos. 1 and 2 providing details of the transactions mentioned therein. Hence, an application under Order XI Rule 11 CPC was filed by the Plaintiffs to direct Defendant Nos.1 to 4 further clarify the answers to the aforesaid Interrogatory Nos.1 and 2. The said application has been rejected on the ground that when the Defendant Nos. 1 to 4 have stated that the sale deeds in question are not available with them, directing them to give particulars of the sale deed would not be justified. Hence this CMP has been filed assailing the said order.
7. It is submitted that Order XI Rule 11 CPC empowers the Court to direct a party to further answer the interrogatories when it is evasive. In the instant case, the Defendant Nos. 1 to 4 under Annexure 7 only reiterated their pleading in the written statement without giving the detail particulars of the sale deeds in question, by which they claim to have acquired title over the suit property. Hence, the Court has committed an error in rejecting an application under Order XI Rule 11 CPC. In support of his case, Mr. Dhal, learned counsel for the Petitioners has relied upon the case of Basudev Misra and others vrs. Panchanan Misra and others, reported in Vol.48 1979 CLT 255, wherein it held as under:
"The properties referred to in this question are the plaint schedule properties. The Court below finds fault with the plaintiffs for not giving the dates of those transfers and the nature of the documents under which those properties were transferred. The plaintiffs of course in answering the said questions have not stated that they do not possess the details of the said transfers or the documents in respect of the same. Accordingly, it can be said that the answer to that part of the question is evasive. So that question has not been properly answered. The plaintiffs are, Page 3 of 5 Signature Not Verified Digitally Signed // 4 // Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 05-Dec-2023 18:26:04 therefore, required to give proper and further answer to that part of the question, but they cannot now be compelled to give description of any document or to produce any document for inspection in respect of the said transfers, as that 's not required to be done on a petition under Rules 1. 4 and 11 of Order 11. Civil Procedure Code. The provision for discovery on oath of documents or production or inspection of documents is made in Rules 12 to 21 of Order 11, Civil Procedure Code. The petitions in this case were made by defendant no. 1 under Rules 1, 4 and 11 of Order 11. Civil Procedure Code as expressly mentioned in those petitions. Accordingly, the party asking the questions cannot complain, or the Court cannot find fault with the plaintiffs, if discovery or production of documents is not given while answering the said questions."
8. It is therefore, submitted that the impugned order is not sustainable and is liable to be set aside.
9. Considering the submission made by Mr. Dhal, learned counsel for the Petitioners and on perusal of the materials on record, it appears that while answering Interrogatory Nos. 1 and 2, the Defendant Nos. 1 to 4 did not give the details of the sale deeds by which Defendant No.1 acquired properties, although it is categorically stated in the written statement that it is their self acquired property. Learned trial Court rejected the petition under Order XI Rule 11 CPC on the ground that it would not be proper to direct the Defendant Nos. 1 to 4 to give further answer, particularly, when they have stated that the sale deeds in question are not available with them. Those are either missing or stolen.
10. When a party refused to answer an interrogatory properly, adverse inference can be drawn against him. But, in the instant case, the Defendant Nos. 1 to 4 have answered the interrogatories at Annexure-7. It is, however, alleged by the Plaintiffs-Petitioners that the answers given to the interrogatory Nos. 1 and 2 are Page 4 of 5 Signature Not Verified Digitally Signed // 5 // Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 05-Dec-2023 18:26:04 insufficient and evasive as the details of the RSD by which they acquired the property have not stated therein.
11. It is stated in the answer itself that the documents are not available with those Defendants. Thus, it will be futile to entertain an application under Order XI Rule 11 CPC and to direct the Defendants to further answer the interrogatory Nos. 1 and 2. Consequence of such non-disclosure is at the risk of the Defendant Nos. 1 and 2. But, that cannot be the ground to allow an application under Order XI Rule 11 CPC. As such, this Court finds no infirmity in the impugned order.
12. Accordingly, this CMP, being devoid of any merit, stands dismissed.
Urgent certified copy of this order be granted on proper application.
(K.R. Mohapatra) Judge Rojalin Page 5 of 5