Madras High Court
Mr.Justin Prakash vs Mrs.Konika Parekh on 6 September, 2012
C.R.P(MD) Nos.1082 and 1083 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 15.09.2020
Pronounced on: 21.12.2020
CORAM:
THE HONOURABLE MR. JUSTICE N.SESHASAYEE
C.R.P(MD) Nos.1082 and 1083 of 2013
Mr.Justin Prakash : Petitioner/Petitioner/
Plaintiff in both CRPs
Vs.
1.Mrs.Konika Parekh
2.Konel Parekh
3.M/s. IFCI Limited,
Having its registered office
at No.142, Mahatma Gandhi Road,
Nungambakkam, Chennai.
4.The Recovery Officer,
Debt Recovery Tribunal - I.
6th Floor, 770 A, Spencer's Towers,
Anna Salai, Chenna
: Respondents/Respondents/
Defendants in both CRPs
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C.R.P(MD) Nos.1082 and 1083 of 2013
PRAYER: This Civil Revision Petition is field under Article 227 of
Constitution of India against the fair and decretal order dated 06.09.2012 in
I.A.Nos.255 & 256 of 2012 in O.S.No.106 of 2010 on the file of Additional
District Judge, Dindigul.
For Petitioner : Mr.H.Lakshmi Shankar
For Respondents : Mr.S.Ramesh
ORDER
1.1 The plaintiff in O.S.No.106 of 2010 on the file of Additional District Judge, Dindigul has approached this Court, having suffered dismissal of his applications in I.A.No.255/2012 and I.A.256/2012. He has laid the suit for declaration of his title to the suit property based on adverse possession. 1.2 Vide I.A.No.255 of 2012, the revision petitioner intended to serve a set of interrogatories on the respondents/defendants under Order 11 Rule 1 CPC and in I.A.No.256 of 2012, the revision petitioner requires discovery of certain documents under Order 11 Rule 12, 14 and 15 CPC. By a common http://www.judis.nic.in 2/11 C.R.P(MD) Nos.1082 and 1083 of 2013 order dated 06.09.2012, the learned District Judge has dismissed both these applications. Hence, these Civil Revision Petitions.
2. The facts which provide a backdrop for these petitions may be stated:
● The suit-property is described as a plot of 45 cents, comprised in Sy.Nos. 68(part) and 67(part) correlated to T.Sy.No.36(part) in Ward B, Block 4 of Kodaikanal Village. This property is part of a slightly larger property and it originally belonged to a certain Anil C Parek. He mortgaged the same as a collateral security for a loan which a company that he floated had obtained from the third defendant-bank. As the loan was not serviced, and the dues to the bank grew to a whopping Rs.2,85,16,003/- crores, the bank filed O.A.No.218 of 1999 before the Debt Recovery Tribunal–I Chennai. In the meantime, Anil Parekh died, and his widow and his son (who respectively are first and the defendants herein) were proceeded against. The DRT, by its order dated 29.05.2008, directed the borrower to pay the said sum with interest at 21.49% p.a. and directed the sale of the property through the 4th defendant, the Recovery Officer. http://www.judis.nic.in 3/11 C.R.P(MD) Nos.1082 and 1083 of 2013 ● Sometime in 2009, the plaintiff came to know of these developments, and on 29.10.2009, he moved the 4th defendant with a petition staking his claim over the property alleging that he had perfected title to the suit property by adverse possession. This came to be dismissed. ● Thereafter, he has instituted the present suit for a declaration of his prescriptive title to the suit property by adverse possession. ● In its written statement, the bank contested the plaintiff’s claim of prescriptive title to the suit property by adverse possession. It defended the proceedings that it had initiated before the DRT. It also pleaded that the plaintiff, during the pendency of this suit, has written a letter dated 27.01.2011, that on 13.06.1994, he had entered into a sale agreement with late Anil C.Parekh, and that he had paid Rs.25.0 lakhs towards part of the sale consideration, and as the revision petitioner defaulted in the payment of the balance sale consideration, Anil C.Parekh had forfeited the advance amount of Rs.25.0 lakhs. This theory of the agreement for sale contradicts his cause of action.
3. This is the setting. The revision petitioner/plaintiff would now file I.A.Nos. 255 and 256 of 2012, for serving a set of interrogatories and also for production/discovery of certain documents. In his affidavit filed in support of http://www.judis.nic.in 4/11 C.R.P(MD) Nos.1082 and 1083 of 2013 these applications, he has averred that Anil C.Parekh is believed to have died on 01.11.2006, whereas, the third respondent/Financial Institution has obtained a judgement on 29.05.2008, after the death of Anil C Parekh. In the proceedings before the DRT, the first defendant, the widow of Anil C Parekh has alleged that she did not know about the proceedings, nor had she inherited any of the properties of her husband. He has also alleged collusion between the widow and son of Mr. Parekh and the bank. These applications were resisted by the third respondent/Financial Institution.
4. Heard both sides. Relying on the ratio in P.Kolanda Gounder Vs. State of Tamilnadu rep. by its District Collector[(2010) 1 MLJ 421], P.Balan Vs. Central Bank of India[AIR 2000 Kerala 24], G.Nanchil Kumaran Vs.Govindasamy Reddiar[(1999) 3 MLJ 660], Shri M.L.Sethi Vs. R.P.Kapur[ AIR 1972 SCC 2379], the learned counsel for the revision petitioner argued that the learned trial judge has not appreciated the purpose and scope of serving interrogatories, and the need for ordering discovery of documents. They are resorted to for shortening the scope of the litigation, and will enable the party serving interrogatories or seeking discovery of documents to even demolish the case of the adversary. Arguing further the learned counsel http://www.judis.nic.in 5/11 C.R.P(MD) Nos.1082 and 1083 of 2013 submitted that the issue involved in this case was whether the bank had inspected the property before it accepted the property of Anil Parekh as a collateral security, and also if the decree of the DRT was not void, as the same was passed against a dead man, since Anil Parekh was dead by then. If only there was a physical inspection of the property by the bank it would have come to know of the possession and enjoyment of the property by the revision petitioner, argued the counsel.
5. This Court is slightly amused by the line of the argument of the learned counsel for the revision-petitioner/plaintiff in the suit. It is not about the object behind serving interrogatories or seeking discovery of documents generally, but the need for them in the context of the cause of action for the present case. The second aspect is about the need for this Court to interfere with the order of the learned District Judge under Article 227 of the Constitution. 6.1 The second aspect may be considered first. There is no denying the fact that the procedural law has made provisions for serving interrogatories by any of the parties to the suit on his adversary. Its primary objects are: (a) to obtain greater clarity about the case of the opponent when the pleadings fail to provide the requisite clarity; (b) to elicit such information which may amount to admission http://www.judis.nic.in 6/11 C.R.P(MD) Nos.1082 and 1083 of 2013 on any of the material facts, which, but for the admission elicited through interrogatories, a party pleading it might have to prove it during trial; (c) to sustain the case of the party serving interrogatories, or to demolish the case of the adversary. Discovery of facts by interrogatories, ipso facto, does not affect the burden of proof cast on a party, but reduces the need scope for discharging the burden to the extent it is admitted by the adversary in the answers to the interrogatories. It thus facilitates shortening the scope of the litigation, ease the process of trial, as it reduces the scope of the controversy, and minimises the points in dispute. However, it does not extend to eliciting evidentiary facts with which a party intends to discharge the burden to prove either a material fact which goes to constitute the cause of action for the suit, or a defence to it. Discovery of facts through interrogatories may therefore be understood as a mere aid or a facility in the procedure, and it is neither forms part of any substantive right in the subject matter of the suit, nor does it affect the right to remedy.
6.2 Discovery of facts through documents, is a documentary version of the object for which interrogatories are served. That which applies to interrogatories therefore applies to discovery of a fact through documents. The intent in both is only to elicit information, and no more. http://www.judis.nic.in 7/11 C.R.P(MD) Nos.1082 and 1083 of 2013 6.3 Serving interrogatories or directing discovery of documents are procedural aids to both the litigants and the court, and they by themselves cannot affect the course of the trial. There the burden of proof will continue to be governed by the Evidence Act. Where therefore, the Court rejects leave to discover facts through interrogatories or documents, since it does not interfere either with right of action or right to defend, or the burden of proof which the pleadings have cast on the parties to the suit, generally it is incapable of prejudicing the rights of the party who sought the leave of the Court for the purpose. Therefore, the Court may not interfere with the same in exercise of its powers under Article 227 of the Constitution. The contra, however is not true. Where however is leave granted and it is shown that the party on whom interrogatory is served will be prejudiced such as where the interrogatory sought is beyond the scope of the litigation, or where it is aimed to answer on the evidentiary material, or where it is intended to embarrass the party, then this Court may, in appropriate cases, interfere with such orders.
7. Was the plaintiff prejudiced by the impugned order that it requires the interference of this Court in exercise of its powers under Art. 227 of the Constitution? On pleadings, the plaintiff having chosen to claim prescriptive http://www.judis.nic.in 8/11 C.R.P(MD) Nos.1082 and 1083 of 2013 title to the suit property through adverse possession, impliedly has admitted the title of Anil C. Parekh. Therefore, the only issue requires to be investigated by the court is if the plaintiff has proved his cause of action. It is inconceivable that the proof of this fact would depend on an inspection report by the bank. And, it should not be lost sight off that the plaintiff is a stranger to the mortgage between Anil Parekh and the bank. At any rate, if the plaintiff manages to discharge his burden, then the burden surely will shift to the bank to prove such of the facts as may be necessary to defend the cause of action. Secondly, if the order of DRT is void or not, can be proved with documentary evidence. And, if the plaintiff manages to demonstrate that some of the documents which are in the possession of the bank is necessary for the final adjudication of the suit, it can still persuade the court to draw adverse inference against it, if the bank fails to produce the same.
8. Where the trial judge has exercised his discretion in a certain way, that by itself cannot be construed as an impropriety affecting the rights of the parties. This court does not find that there exist any procedural infirmity or impropriety in the order of the learned District Judge, and necessarily these two revision petitions should fail.
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9. All that the pendency of these two petitions has managed was to obstruct the trial of the suit. Since the suit is a decade old now, this court directs the trial court to dispose of the suit within a period of four months, at any rate not later than 30-04-2021.
10. In the result, both the Civil Revision Petitions are dismissed and the order dated 06.09.2012 passed in I.A.Nos.255 & 256 of 2012 in O.S.No.106 of 2010 on the file of Additional District Judge, Dindigul is hereby confirmed. No costs.
21.12.2020 Index : Yes/No Internet : Yes/No Tsg-2 To
1.The Additional District Judge Dindigul.
2.The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.
N.SESHASAYEE., J.
http://www.judis.nic.in 10/11 C.R.P(MD) Nos.1082 and 1083 of 2013 Tsg-2 Pre-delivery order in C.R.P(MD) Nos.1082 and 1083 of 2013 21.12.2020 http://www.judis.nic.in 11/11