Kerala High Court
Dasan vs Yathra,A Registered Partnership Firm on 13 February, 2025
O.P.(C)No.3329 of 2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
THURSDAY, THE 13TH DAY OF FEBRUARY 2025 / 24TH MAGHA, 1946
OP(C) NO. 3329 OF 2017
AGAINST THE ORDE DATED 01.11.2017 IN I.A.NO.74/2017 IN
OS NO.230 OF 2011 OF SUB COURT, CHERTHALA
PETITIONER/PLAINTIFF:
DASAN
S/O.PARAMESWARAN,KULANGARATHARAVEEDU,
PADINJATTUMKARA SOUTH MURI,
THIRUMALABHAGOM, THURAVOOR SOUTH VILLAGE.
BY ADVS.
SMT.C.G.BINDU
SMT.C.G.AJITHA
RESPONDENT/DEFENDANTS:
1 YATHRA,A REGISTERED PARTNERSHIP FIRM
REGISTRATION NO 939/2001, MEENU BHAVAN,
KALAVAMKODAM P O, CHERTHALA TALUK,REPRESENTED BY
PARTNER,(WRONGLY TYPED IN THE ORDER IN IA NO.
74/2017 AS MANAGING PARTNER), C.D.RAJENDRAN,
S/O.NARAYANAN,MEENUBHAVAN, KALAVAMKODAM P O,
PIN - 688 232
2 C.D.RAJENDRAN
S/O.NARAYANAN, MEENU BHAVAN,KALAVAMKODAM P O,
CHERTHALA TALUK,MANAGING PARTNER OF YATHRA,
PIN - 688232
O.P.(C)No.3329 of 2017
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3 R.SHAJI
S/O.RAJAPPAN,PUTHUKKARICHIRA
KALAVAMKODAM PO, VAYALAR EAST VILLAGE,
CHERTHALA,PARTNER OF YATHRA, (WRONGLY TYPED IN THE
ORDER IN IA NO .74/2017 AS MANAGING PARTNER)
PIN - 688232
4 V G RADHAKRISHNAN
S/O.GOPINATHAN,VALLAZHATHU VEETTIL,
KALAVAMKODAM P O,VAYALAR EAST VILLAGE,
CHERTHALA,PARTNER OF YATHRA,(WRONGLY TYPED IN THE
ORDER IN IA NO 74/2017 AS MANAGING PARTNER)
PIN - 688232
5 C P SURESH
S/O.PURUSHAN,CHERUKANI VEEDU,
KALAVAMKODAM P O,VAYALAR EAST VILLAGE,
CHERTHALA,PARTNER OF YATHRA,(WRONGLY TYPED IN THE
ORDER IN IA NO 74/2017 AS MANAGING PARTNER)
PIN - 688232
6 P.G.NATARAJAN
S/O.GOPALAN,POKKALISSERRY VEEDU,
KALAVAMKODAM P O,VAYALAR EAST VILLAGE,
CHERTHALA,PARTNER OF YATHRA,(WRONGLY TYPED IN THE
ORDER IN IA NO 74/2017 AS MANAGING PARTNER)
PIN - 688232
7 S.DINESAN
S/O.SANKUNNY,RADHANIVAS, PATTANAKKAD PO ,CHERTHALA,
PARTNER OF YATHRA,(WRONGLY TYPED IN THE ORDER IN IA
NO 74/2017 AS MANAGING PARTNER)
PIN - 688535
8 SUNILDETH
S/O.GOPALAKRISHNAN,AMRITHAM VEEDU,
PATTANAKKAD P O,CHERTHALA, PARTNER OF YATHRA,
(WRONGLY TYPED IN THE ORDER IN IA NO 74/2017 AS
MANAGING PARTNER)
PIN - 688535
9 K.MOHANAN
S/O.KRISHNAN,KRISHNABHAVANAM @
KUNCHELATHUVEEDU,KALAVAMKODAM P O, VAYALAR EAST
VILLAGE, PARTNER OF YATHRA,(WRONGLY TYPED IN THE
ORDER IN IA NO 74/2017 AS MANAGING PARTNER)
PIN - 688232
O.P.(C)No.3329 of 2017
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10 DILEEP
S/O.THANKAPPAN,PUTHUVAL NIKARTH, KALAVAMKODAM P O,
VAYALAR EAST VILLAGE, PARTNER OF YATHRA,(WRONGLY
TYPED IN THE ORDER IN IA NO 74/2017 AS MANAGING
PARTNER)
PIN - 688232
11 SABU
S/O.VISWAN,VADAKKE VARAYIL,
KALAVAMKODAM P O,VAYALAR EAST VILLAGE, CHERTHALA,
PARTNER OF YATHRA,(WRONGLY TYPED IN THE ORDER IN IA
NO 74/2017 AS MANAGING PARTNER)
PIN - 688232
12 MURALEEDHARAN
S/O.PADMANABHAN,ATHIRANIVAS, NEAR KULATHRAKKAD
TEMPLE,CHERTHALA P O, CHERTHALA
TALUK,KOKKOTHAMANGALAM VILLAGE,PARTNER OF YATHRA,
(WRONGLY TYPED IN THE ORDER IN IA NO 74/2017 AS
MANAGING PARTNER)
PIN - 688535
BY ADVS.
SRI.P.V.JAYACHANDRAN
SMT.G.N.DEEPA
SRI.NIDHI BALACHANDRAN
THIS OP (CIVIL) HAVING COME UP FOR HEARING ON
30.01.2025, THE COURT ON 13.02.2025 DELIVERED THE FOLLOWING:
O.P.(C)No.3329 of 2017
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CR
JUDGMENT
The plaintiff, who filed a suit for the recovery of money from a registered partnership firm engaged in the business of transport service, delivered interrogatories for the discovery of facts related to the suit when the defendants denied the plaint claim. Alleging that certain defendants did not fully answer the specific questions put to them while answering the interrogatories through Ext. P4 affidavit, the plaintiff further filed Ext.P12 application under Order XI Rule 11 read with Order XIX Rule 2 of the Code of Civil Procedure (hereinafter referred to as 'the Code') for viva voce examination of the defendants.
2. The Sub Court dismissed the said application as per Ext.P13 order by finding that the plaintiff O.P.(C)No.3329 of 2017 5 2025:KER:11299 did not specifically state to which question the answers are incomplete or contradictory. The plaintiff challenges the said order by preferring the present original petition.
3. The petitioner contends that as he has no documentary evidence to prove the plaint claim, it is highly necessary to get proper and precise answers to the interrogatories originally submitted and thus viva voce examination of the respondents is unavoidable. The respondents contend that there is no illegality in the impugned order and the petitioner has no justification for filing the above-said application.
4. Heard the learned counsel appearing for the petitioner and the respondents. Before assessing the legality of the impugned order, it is necessary to delineate the legal framework governing the discovery of facts by delivery of interrogatories and the consequence of failure to answer the same. O.P.(C)No.3329 of 2017 6
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5. Interrogatories are aimed at discovering facts. They will narrow down the controversy in a suit and enable the litigant to compel his opponent to disclose facts relating to the matters in question in a suit or other proceeding. Answers given on interrogatories and documents disclosed on the application for discovery of documents will form part of the evidence.
6. As per Rule 1 of Order XI of the Code, there are certain restrictions for delivering interrogatories. The interrogatories can be delivered only with the leave of the court and the party shall not deliver more than one set of interrogatories to the same party, without the order of the court. The scope of interrogatories shall be related to any matters in question in the suit. The expression "matters in question in the suit" is similar to the facts in issue i.e., matters related to the existence or non-existence of any right or O.P.(C)No.3329 of 2017 7 2025:KER:11299 liability asserted or denied in the suit.
7. Matters in question/issue are indeed not as wide as matters that are relevant during the cross- examination of a witness in the suit. Therefore, the interrogatories that are not related to matters in issue will be deemed irrelevant, even if such matters might be admissible on oral cross- examination of a witness. The court will not grant leave to deliver such interrogatories. If the interrogatories relate to any matter in question or issue in the suit, the court must be very liberal in granting leave, as a general rule. It should ordinarily encourage the litigants to deliver the interrogatories to the opponent, especially for the reason that a party to a proceeding cannot, as of right, examine his opponent as a witness during the trial.
8. If the opposite party omits to answer the interrogatories or provides insufficient, vague, or O.P.(C)No.3329 of 2017 8 2025:KER:11299 evasive responses, the applicant has two options. He can apply to the court for leave to deliver a fresh set of interrogatories if it is helpful to pinpoint the shortcomings in the reply. Delivering more than one set of interrogatories, though restricted in the first proviso to Rule 1 of Order XI, the same provision makes it clear that it can be done with the permission of the court. A vague or evasive answer to the first set of interrogatories is certainly one of such eventualities in which the court can permit a party to deliver another set of interrogatories to nail down his contumacious opponent.
9. The second course open to him is to apply to the court under Rule 11 of Order XI. In Yusuff v. Central Bank of India (1993 (2) KLT 684), this court has held that the drastic step of striking out the defence or dismissing the suit as envisaged under R.21 of Order XI would be invoked by the court only O.P.(C)No.3329 of 2017 9 2025:KER:11299 if the opposite party has failed to comply with the direction of the court in pursuance to an order under R.11 of O.XI.
10. When an application under Rule 11 of Order XI is made alleging that the opposite party omitted to answer the interrogatories or the answers given are insufficient, the applicant is bound to specify the interrogatories or part of the interrogatories to which the omission occurred or further answer is required. He should also state in a reasonably clear manner the context that requires further clarification. It is not permissible to fish for answers under the guise of requiring further answers. The court can decide the question of omission or insufficiency in the answers only if the request is definite and clear.
11. In this case, the petitioner chose the second course. Let us now examine the scheme of Rule 11 to decide the correctness of the petitioner's O.P.(C)No.3329 of 2017 10 2025:KER:11299 challenge. Rule 11 reads thus:
"Order to answer or answer further - Where any person interrogated omits to answer, or answer insufficiently, the party interrogating may apply to the Court for an order requiring him to answer, or to answer further, as the case may be. And an order may be made requiring him to answer, or answer further, either by affidavit or by viva voce examination, as the Court may direct."
It is clear from the language of Rule 11 that a party aggrieved by the omission or insufficiency in the answers to the interrogatories can apply to the court for an order requiring the opposite party to answer/answer further, as the case may be. The manner in which the answer/further answer ('answer' in the case of omission and 'answer further' in the case of insufficiency) is to be given by the opposite party will be decided by the court. The court may either direct the party to answer/ answer further by affidavit or by viva voce examination. O.P.(C)No.3329 of 2017 11
2025:KER:11299 Rule 11 does not empower the party interrogating to choose a particular course of action in this regard. He can only apply to the court for an order requiring the opposite party to answer in the manner decided by the court.
12. The term "viva voce examination" is used in Rule 11 of Order XI to connote oral examination, in contradistinction to the written examination of the opposite party by delivery of interrogatories as contemplated in Rule 1 of Order XI. Conventionally, a viva voce examination will be ordered by the court only in exceptional circumstances. In Halsbury's Law of England (4th edition, Volume 13 Paragraphs 101 and 102, paragraph 140), it is stated as follows:
"Oral Examination. The order may be that the further answer be by affidavit or by oral examination, but the latter mode is only adopted in exceptional cases. Where it is ordered the scope of the examination is not larger than that of interrogatories, and the party examined can only be required to give such an answer as would have been sufficient O.P.(C)No.3329 of 2017 12 2025:KER:11299 if given in the affidavit in answer to the interrogatories."
However, if the court feels that a party to the suit is evading answering the relevant interrogatories, it should not hesitate to order the same if it finds that such a viva voce examination alone would yield the desired result. Similarly, if the court finds that the answers given by the party are unsatisfactory, in spite of being given an opportunity to answer further by affidavit, the court should ordinarily direct him to appear in person for a viva voce examination. A similar view was expressed by this Court in Jortin Antony v. S.P.D Marthanda Varma (2001(1)KLT 511).
13. A proceeding before a court of law is not akin to a game of hide-and-seek between the parties. The parties are bound to state the truth, and nothing but the truth, before the court. If a party evades its responsibility to the court and employs O.P.(C)No.3329 of 2017 13 2025:KER:11299 evasive tactics, the court has a duty to ensure a level playing field for the adversary by invoking the appropriate measures provided in the Code.
14. However, in Ext.P12 application submitted by the petitioner, he has not described the insufficiency or incongruity of the answers. Instead, he has made a general statement in paragraph 4 of the affidavit that the answers given by the respondents are contradictory and insufficient and thereby, he requested the court to order the appearance of the respondents for a viva voce examination. This is not the scheme of Rule 11 to Order XI of the Code and the said allegations are not sufficient to invoke the jurisdiction of the court under the said provision. It is true that the petitioner has filed the said application under Rule 2 of Order XIX as well. A direction under Order XIX cannot be sought by alleging non-compliance with an order passed under Rule 1 of Order XI. O.P.(C)No.3329 of 2017 14
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15. In view of the above discussion, this court finds no illegality in the impugned order. However, during the course of the hearing, the learned counsel for the petitioner made a laborious effort to explain how the respondents flouted the orders of the court. Keeping in mind the laudable object of Order XI of the Code and the circumstance in which the petitioner has made Ext.P12 application, it is only just and proper to permit the petitioner to make a proper application under Order XI of the Code.
16. In the result, the original petition is disposed of as follows:
(i)There is no illegality in Ext.P13 order passed by the Sub Court.
(ii) However, if the petitioner submits a proper application under Order XI of the Code within a period of two weeks from the date of receipt of a certified copy of this judgment, O.P.(C)No.3329 of 2017 15 2025:KER:11299 the Sub Court shall consider the same and pass appropriate orders, before proceeding with the trial of the suit.
(iii) Considering the undue delay that occurred in the disposal of the suit owing to the pendency of this original petition, the Sub Court shall make all efforts to dispose of the suit within a period of three months from the final disposal of the application, if any, filed by the petitioner under Order XI of the Code.
Sd/-
P.KRISHNA KUMAR JUDGE sv O.P.(C)No.3329 of 2017 16 2025:KER:11299 APPENDIX OF OP(C) 3329/2017 PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO 230/2011 ON THE FILE OF SUB COURT, CHERTHALA DTD 3/11/2011 EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT IN OS NO.230/2011 ON THE FILE OF SUB COURT, CHERTHALA.
EXHIBIT P3 TRUE COPY OF THE IA NO.94/2016 IN OS NO.230/2011 EXHIBIT P4 TRUE COPY OF THE ANSWER TO EXHIBIT P3 DTD 1/7/2016 EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT IN OS NO.230/2011 EXHIBIT P6 TRUE COPY OF THE AFFIDAVIT IN OS NO.230/2011 DTD 25/8/2016 EXHIBIT P7 TRUE COPY OF THE AFFIDAVIT IN ANSWER TO EXHIBIT P3 INTERROGATORIES FILED BY THE 7TH DEFENDANT EXHIBIT P8 TRUE COPY OF THE AFFIDAVIT IN ANSWER TO EXHIBIT P3 INTERROGATORIES FILED BY THE 8TH DEFENDANT EXHIBIT P9 TRUE COPY OF THE AFFIDAVIT IN ANSWER TO EXHIBIT P3 INTERROGATORIES FILED BY THE 9TH DEFENDANT EXHIBIT P10 TRUE COPY OF THE AFFIDAVIT IN ANSWER TO EXHIBIT P3 INTERROGATORIES FILED BY THE 10THE DEFENDANT EXHIBIT P11 TRUE COPY OF THE AFFIDAVIT IN ANSWER TO EXHIBIT P3 INTERROGATORIES FILED BY THE 11TH DEFENDANT O.P.(C)No.3329 of 2017 17 2025:KER:11299 EXHIBIT P12 TRUE COPY OF THE PETITION EXHIBIT P13 TRUE COPY OF THE ORDER DTD 1/11/2017 IN IA NO 74/2017 IN OS NO 230/2011 ON THE FILE OF SUB COURT, CHERTHALA.