Orissa High Court
Acharya Devi Dutta Samasekhar And ... vs Ajit Kumar Acharya And Others on 18 April, 2016
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.3091 of 2008
In the matter of an application under Article 227 of the Constitution
of India.
----------
Acharya Devi Dutta Samasekhar
and another ............... Petitioners
---versus--
Ajit Kumar Acharya and others ............... Opp. Parties
For Petitioners : Mr. Soumya Mishra, Advocate
For Opp. Parties : Mr. Mahadev Misrha, Sr. Advocate,
Ms. Mamata Mishra, Advocate
(For O.P. Nos.1 & 2)
-------------
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
----------------------------------------------------------------------------
Date of Hearing: 06.04.2016 │ Date of Judgment: 18.04.2016
----------------------------------------------------------------------------
Dr. A.K. Rath, J.By this application under Article 227 of the Constitution, challenge is made the order dated 15.11.2007 passed by the learned Civil Judge (Sr. Divn.), Jagatsinghpur in T.S. No.88 of 1995, wherein and whereunder, the learned trial court rejected the application filed by the plaintiffs under Order 11 Rule 1 C.P.C. for a direction to the defendants to answer the interrogatories. 2
2. The petitioners as plaintiffs instituted the suit for partition of the suit schedule properties impleading the opposite parties as defendants. The case of the plaintiffs is that Madan Acharya was the common ancestor of plaintiffs and defendant nos.1 to 6 and 10 to 15. Madan died leaving behind two sons, namely, Uda and Rama. Rama died in the year 1928 leaving behind his only son Anadi. Anadi died in the year 1989 leaving behind wife, namely, Basanta Kumari, defendant no.1, two sons, namely Ajit and Anil- defendant nos.2 and 3 respectively and three daughters, namely, Malati, Jayanti and Lilabati, defendant nos.4 to 6 respectively. Uda had one son and two daughters. He died in the year 1949. His son Kalandi predeceased him in the year 1947. Aparna (widow of Kalandi) adopted Devi Dutta (son of Champakalata), plaintiff no.1 after performance of necessary giving and taking ceremony on the Sripanchami day of 1976. After the death of Uda, Aparna and Champakalata-plaintiff no.2 succeeded to the properties of Uda. Jamuni and Maguni (daughters of Uda) are not entitled to any share as Uda died prior to coming into force of Hindu Succession Act, 1956. Aparna became the absolute owner of the share of Uda in the joint family property left behind by the common ancestor Madan Acharya after coming into force of the Hindu Succession Act, 1956 and after her death, plaintiffs succeeded thereto. Accordingly the plaintiffs are entitled to half share in the ancestral joint family 3 properties as well as the properties acquired from joint family nucleous as described in suit schedule. It is pleaded that in course of time dispute arose between two branches relating to the suit schedule properties, partition was affected on mutual settlement in presence of village Bhadralokas and as per the mutual partition both parties possessed their respective share separately as per convenience. They have also alienated respective portions of the joint family properties independently without any objection from either party. The vendees have been impleaded as parties to the suit and as such the extent of lands thus alienated are to be adjusted from the respective share of the parties at the time of final decree proceeding. It is further pleaded that Anadi was a shrewd person and in order to grab the entire joint family property he got his name recorded in consolidation ROR in respect of most of the joint family properties by gaining over the consolidation authorities. After death of Anadi the defendants also tried to grab the share of plaintiffs and even after repeated demand of plaintiffs for partition, they did not agree.
3. Pursuant to issuance of summons, the defendant nos.2 and 3 entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. The case of the defendants is that Anadi is the son of Udayanath Acharya, not 4 Rama Acharya. Udayanath died in the year 1989 leaving behind Anadi as his legal heir. He was in continuous peaceful possession of the suit land as the owner thereof. After his death, his legal heirs are in possession of the same. Though the defendants are in possession of the same for more than the statutory period, the plaintiffs have never taken any steps to dispossess them from the suit land nor obstructed in enjoying the usufructs from the disputed land. It is further stated that the consolidation authorities have recorded the suit properties along with other properties in favour of the defendant-Anadi. The plaintiffs have not taken any steps during consolidation operation. The specific case of the defendants is that the plaintiffs were not in possession of the suit properties at any point of time. While the matter stood thus, the plaintiffs filed an application under Order 11 Rule 1 C.P.C. for a direction to the defendants to answer the interrogatories. Learned trial court rejected the said application.
4. Heard Mr. Soumya Mishra, learned counsel on behalf of Mr. S.P. Mishra, learned Senior Advocate for the petitioners and Mr. Mahadev Mishra, learned Senior Advocate along with Ms. Mamata Mishra, learned counsel for the opposite party nos.1 and 2.
5. The learned trial court assigned the following reason and rejected the petition.
5
"It is found that plaintiffs have put up 24 numbers of questions which they are required to be established, but instead of doing to, they have put up a long list of interrogatory with intent to linger the proceeding."
6. Dealing with the scope and ambit of Order 11 Rule 1 C.P.C., this Court in Shri Ghanashyam Das Tekriwal vs. Smt. Jayanti Tiwari and others, 2016 (I) CLR-643, in paragraphs 4, 5, 6 and 7 held thus:-
"04. The scope of Order 11 Rule 1 C.P.C. has been succinctly stated by this Court in Ganga Devi v. Krushna Prasad Sharma, Vol.XXXI (1965) CLT 294. In paragraph 8 of the said report, it is held that :-
"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 interrogatories are permissible with regard to matters which are relevant to the facts directly in issue. In certain circumstances, however, they may be extended to other facts not directly in issue, but in connexion with which existence, non-existence, nature or extent of right, liability or disability, asserted or denied in the suit or proceeding necessarily follows. Sometimes it is used to show that the defence set up is unfounded. These, in substance, are generally the matters to which interrogatories should be directed. Under Order 11, Civil Procedure Code, interrogatories can be administered in the same manner as is done in England for discovering the facts in issue A.I.R. 1914 Cal. 767. In Attorney-General v. Gaskil, (1882) 20 Ch. D. 519, Cotton, L.J., observed--
The right to discovery remains the same, that is to say, a party has a right to interrogate with a view to obtaining an admission from his opponent of everything which is material and relevant to the issue raised on the pleadings. It was said in argument that it is not discovery where the plaintiff himself already knows the fact. But that is a mere play on the word 'discovery'. Discovery is not limited to giving the plaintiff a knowledge of that which he does not know, but includes the getting an admission of anything which he is to prove on any issue which is raised between him and the defendant. To show 6 that the pleadings have raised issues and that therefore interrogatories should not be allowed is another fallacy. The object of the pleadings is to ascertain what issues are. The object of the interrogatories is not to learn what the issues are but to see whether the party intelligently can obtain an admission from his opponent which makes the burden of proof easier than it otherwise would have been.
Order 11 Rule 6, Civil Procedure Code, enacts the nature of objections that can be advanced to the interrogatories. It says that any objection to answering any interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit or that the matters enquired into are not sufficiently material at that stage, or on any other ground, may be taken on affidavit in answer. To say that the question must relate to definite, existing and relevant circumstances and must not be merely in the hope of discovering some flaw in the opponent's case, or with the object of filling a blank in the interrogatories."
05. In Sri Janaki Ballav Patnaik vs. Bennett Coleman & Co. Ltd. and others, 1988(I) OLR-379, this Court held that administering of interrogatories is to be encouraged, as it is a means of getting admission and tends to shorten litigation. It is a valuable right of which a party should not lightly be deprived.
06. In Raj Narain vs. Smt. Indira Nehru Gandhi and another, AIR 1972 SC 1302, the apex Court held that questions that may be relevant during cross-examination are not necessarily relevant as interrogatories. The only questions that are relevant as interrogatories are those relating to "any matters in question". The interrogatories served must have reasonably close connection with "matters in question".
07. The right to administer interrogatories is neither absolute nor unqualified. A suit contemplates two sets of facts, i.e., (1) facta probanda (facts constituting party's case), and (2) facta probantia (facts constituting evidence). A party is entitled to know only facta probanda and not facta probantia. Thus question sought for in the interrogatories can be put in cross-examination is per se no ground to reject the application under Order 11 Rule 1 C.P.C."
7
7. In view of the authoritative pronouncement of this Court in the case of Shri Ghanashyam Das Tekriwal cited supra, the inescapable conclusion is that the question sought for in the interrogatories can be put in cross-examination is per se no ground to reject the application filed under Order 11 Rule 1 C.P.C. Further Order 11 Rule 1 C.P.C. does not provide the number of interrogatories to be delivered. Learned trial court fell into patent error in rejecting the said application.
8. Accordingly, the order dated 15.11.2007 passed by the learned Civil Judge (Sr. Divn.), Jagatsinghpur in T.S. No.88 of 1995 is quashed. Learned trial court is directed to consider the application afresh in the light of the principles enumerated above.
The petition is allowed. No costs.
.....................................
Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 18th April,2016/Barik