Delhi High Court
Smt. Sharda Dhir vs Sh. Ashok Kumar Makhija And Ors. on 9 July, 2002
Equivalent citations: AIR2003DELHI288, 99(2002)DLT350, AIR 2003 DELHI 288, (2002) 64 DRJ 713 (2002) 99 DLT 350, (2002) 99 DLT 350
Author: Mahmood Ali Khan
Bench: Mahmood Ali Khan
JUDGMENT Mahmood Ali Khan, J.
1. This is plaintiff's chamber appeal by which an order of the Joint Registrar dated 28th August, 2001 passed on IA 4495/98 has been challenged. IA 4495/98 was filed by the plaintiff under Order 11 Rule 1 CPC for the service of Interrogatories for examination of the defendant No. 1 for discovery of facts on oath.
2. The facts leading to this application succinctly stated are as follows. The plaintiff has filed a suit for recovery of money against the defendants on the allegation that defendant No. 1 in collusion with other defendants entered into an agreement of sale of property No. 706, Sector 15-A, Faridabad for a sale consideration of Rs. 19,40,000/-. The defendant No. 1 executed a Receipt-cum-Agreement to Sell dated 10th January, 1997 on receipt of a sum of Rs. 1 lac in advance. It was recited in the agreement that the plot/property was free from all encumbrances and that the documents of title in original would be delivered to the plaintiff at the time of the payment of the balance sale consideration and the execution of the sale deed. Another sum of Rs. 1 lac was paid by the plaintiff to the defendant No. 1 as desired by him on 10th January, 1997 against a separate receipt. On the request of the defendant No. 1 another sum of Rs. 50,000/- was also paid to him, in all making the total advance payment to the defendant No. 1 of Rs. 2,50,000/-. Despite repeated demands the defendant No. 1 failed to produce the original title document for the inspection of the plaintiff and execute the sale deed on receipt of the balance amount of the sale consideration. The plaintiff asked the defendant No. 1 to be present in the office of the Sub-Registrar on 10.3.1997 for the execution and registration of the Sale Deed subject to production and verification of the original document which included the Original Title Deeds and other documents relating to the property, no due certificate and clearance certificate from the Income Tax Department, completion certificate of two and a half storeyed house and the Lease Deed executed in favor of the tenant in occupation of the property. The defendant No. 1 failed to appear till 5 P.M. He then came but without the original title deed of the property. He, however, offered to return the money received in advance after deducting Rs. 25,000/- allegedly incurred as expenses by him. The plaintiff declined this offer. Thereafter, the plaintiff received a letter dated 16th March, 1997 from the defendant No. 1 falsely alleging that he was present in the office of the Sub-Registrar and that the plaintiff had committed the breach of agreement. However, the defendant No. 1 admitted that he did not have all the original document with him which were the essence of the agreement since there was no mention thereof in the letter. Later on the defendant No. 1 assured to refund the money taken by him and also to compensate her for the harassment caused to her. But all in vain. Subsequent enquiry made by the plaintiff revealed that the property in question was mortgaged by the defendant No. 1 with his employer bank and at the time of execution of the agreement of sale he had no right to sell the property. The defendant No. 1 had misrepresented about his title and right to sell the property or its being free from all encumbrances. The defendant No. 1 in fact had utilised the money taken as advance from the plaintiff for making payment of the loan. He has played fraud upon the plaintiff. After making further enquiry the plaintiff lodged a complaint dated 16th May, 1997 and September, 1997 against the defendant No. 1 at police station, Faridabad. Other defendants colluded with the defendant No. 1 were equally liable for this fraudulent transaction. The plaintiff had originally claimed the relief of recovery of damages of Rs. 8,15,630/- with interest @ 24% per annum in future; a decree of permanent injunction for restraining defendant No. 2 from handing over the original title deed of the property to the defendant No. 1 and; decree of permanent injunction restraining the defendants from transferring, alienating or parting with the possession or dealing with the property in question in any manner. Later on the relief of permanent injunction in Clauses b & c of the prayer were given up and the suit was restricted to the claim of the damages only.
3. The defendant contested the suit and raised diverse pleas. The allegations of the plaintiff were refuted and the blame was laid upon the plaintiff for non performance of the agreement of the sale. Execution of the sale deed and the receipt of Rs. 2 lacs, however, was not disputed. It was alleged that the suit property was purchased as a single storey house after due permission from HUDA. Thereafter, additional construction of the first floor and the second floor was raised and the completion certificate in respect of this construction was obtained from the HUDA. The defendants No. 1 was an employee of defendant No. 2. Defendant No. 1 raised loan from his employer for construction after due permission from HUDA. It was an agreement with the plaintiff that the amount received would be deposited by the defendant with his employer and the title deed deposited with the bank would be taken back. The defendant No. 1 proposed to purchase another house in Delhi from the sale proceed and the title deed of the new property was to be deposited with the bank. The plaintiff, however, failed to pay the balance amount of the sale consideration as a result although the defendant No. 1 paid the amount to the bank and got back the title deed, he could not purchase the new property and the document of tile of the new property deposited with the bank for security which had to be done within six months. He lost the benefit of concessional housing loan at nominal interest which his employer bank was advancing. It was submitted that the entire property was in occupation with the tenant. The ground floor and the first floor both were occupation of two different tenants and the allegation of the plaintiff that one tenant occupied the whole property is erroneous. All the communication received from the plaintiff were duly replied to and she was assured that all the necessary formalities required by HUDA were completed and that he would ensure that the property was free from all encumbrances. He however requested the plaintiff to reach Sub-Registrar's office on 10th March, 1997 where he would be present with all the documents on 8th March, 1997. He sent a telegram requesting the plaintiff to come at the office of Sub-registrar on 10th March, 1997 with balance amount of the sale consideration and assured that all the formalities would be completed. Plaintiff in reply wanted him to obtain completion certificate and clearance certificate besides no due certificate, and the title deed. He had already informed the plaintiff that all the formalities have been completed. Whole day the defendant No. 1 waited for the plaintiff at the office of the Sub-Registrar office. The plaintiff did come there but she told that the bank draft for sale consideration was being brought by her representative. However nobody came. The plaintiff did not offer the sale consideration. Therefore on 11th March, 1997 the defendant No. 1 wrote a letter to the plaintiff setting out all the facts which had transpired on 10th March, 1997 and for paying the amount of advance. Along with the written statement he filed the photocopy of all the documents with the completion certificate regarding whole of the property, clearance certificate, no due certificate from the Canara Bank and also claimed that the original document of title was in this possession. Other allegations made in the plaint were likewise repudiated by him.
Replication was filed by the plaintiff reiterating her own case.
4. After the completion of pleadings the issues were framed in this case on 18th August, 2000 and the case was posted before the Joint Registrar for recording the evidence on commission on the request of the parties. Before that, instant application was filed by the plaintiff for serving the Interrogatories on the defendant.
5. In the application the plaintiff after narrating her pleadings alleged that the defendant No. 1 failed to produce the original document of title, completion certificate and the no due certificate from the bank etc. and execute the sale deed. It was alleged that in view of allegations made by the defendant No. 1 in the written statement it is just and proper that plaintiff is permitted to deliver the Interrogatories set out in annexure 1 upon the defendant No. 1 for disposing of the suit. She prayed for leave to deliver the Interrogatories in annexure 1 of the application on the defendant No. 1 to answer.
6. Annexure 1 of the interrogatories contains 14 questions that the plaintiff sought to be put to the defendant No. 1 for filing a reply. No affidavit in answer to the Interrogatories annexed to the application was filed. It was reiterated that the photocopy of the completion certificate/occupation certificate dated 6th March, 1997 has been filed. It was alleged that the proposed Interrogatories were irrelevant and had no bearing on the trial of the suit filed by the plaintiff. It was prayed that the application should be dismissed.
7. The application was considered by the learned Joint Registrar and by the impugned order he held that the defendant No. 1 had already filed the copies of Income Tax clearance certificate, completion certificate, a letter sent by defendant No. 2 Canara Bank that the loan taken by the defendant No. 1 in respect of the property has been cleared. The income tax certificate is dated 5th March, 1997 and the completion certificate is dated 6th March, 1997 and the bank letter is also dated 6th March, 1997. All these documents indicate that on 10th March, 1997 which was the date on which sale deed was to be executed, the defendant No. 2 had all the relevant documents in his possession. As to whether these documents were in fact in possession of the defendant No. 1 is a matter of evidence and even if the Interrogatories were answered the documents in question would be required to be proved by calling the witnesses from the concerned department. The learned Joint Registrar has observed that the list of witnesses has already been filed which shows that the plaintiff desired to summon all the necessary record which relates to the present Interrogatories. In his view no useful purpose was going to be served by asking the defendant No. 1 to serve the Interrogatories since these facts would be proved at the trial on production of the relevant record and the evidence.
8. The plaintiff is aggrieved and he has filed the present appeal. Along with the appeal the plaintiff also filed an application under Section 5 of the Limitation Act for condensation of delay in filing the appeal. It is alleged in the application that the appeal was filed within the prescribed 15 days period from the date of the impugned order under appeal but the registry raised certain objection. It was refiled on 7th November, 2001. The court clerk was dealing with the removal of objection etc., in the office of the counsel for the plaintiff who inadvertently put the appeal in the suit filed and this mistake was detected on 9th December, 2001 when the plaintiff contacted the counsel.
9. This application was also opposed by the defendant alleging that the delay is not bona fide and the appeal should be dismissed.
The defendant No. 1 filed a reply to this appeal and justified the order of the Joint Registrar.
I have given careful thought to the submission made by the counsel for the parties at the Bar.
The application was filed by the plaintiff under Order 11 Rule 1 CPC. This rule allowed the court to grant leave to any of the party of the suit to deliver Interrogatories in writing for examination of the opposite party relating to any matter in question in the suit. The object of this rule is that a party knows the nature of his opponent's case before hand in order to meet it at the hearing. Indeed, he is not entitled to know the fact which constitute evidence to prove the opponent's case. The nature of the case of the parties is disclosed in their respective pleadings but in a given case the pleadings may not sufficiently disclose the nature of the parties' case. In order to make good deficiency this rule has been enacted. It is now well settled that administering of Interrogatories is to be encouraged as it is a means of obtaining admissions of parties and tends to shorten litigation. As a general rule the Interrogatory should be allowed, whether the answer to them would either strengthen the case of the party administering them or to destroy the case of the adversary. The court should not be hyper-technical at the stage of the service of the Interrogatories. This rule is to be used liberally whenever it could shorten the litigation and serve the interest of justice. Indeed, it cannot be used as a means of obtaining information which may be admissible during the oral cross-examination of a party and his witnesses. Interrogatories cannot be disallowed merely because the party interrogating has other means of proving the facts in question. One of the important purpose of interrogatories is to obtain admission of material fact of a case. Under this rule the Interrogatories may be served with the leave of the court by one party to the other in a suit: (1) to ascertain the nature of his opponent's case and material facts constituting it and (2) to support his own case by obtaining admissions or by impeaching or destroying his opponent's case. The Interrogatories which do not relate to any matter in question involved in the suit, indeed, would be deemed irrelevant even though they might be admissible in oral cross-examination of the witnesses. Rule (6) of Order 11 makes it further clear. It provides that objection to answer an Interrogatory on the ground that it is scandulous or irrelevant or not exhibited bona fide for the purpose of the suit, or with the matter inquired into are not sufficiently material at that stage or on the ground of privilege, or on any other ground will be taken in the affidavit in answer. Leave to deliver interrogatories does not imply an order to answer them and any objection to answer can be taken under the Rule. The court is required to decide whether the appellant should be allowed to interrogate the other side, but it is not to determine what question should the opposite party to be compelled to answer.
10. As observed above at the preliminary stage of hearing on the application the court is required to decide whether the applicant should be allowed to interrogate the other side, but is not to determine what question should the opposite party be compelled to answer. Interrogatories may then be served on the other party for his answer to that on affidavit. The party, who has been served with Interrogatories, will then answer the Interrogatories on affidavit or raise objections about the relevancy or they being of scandalous nature, irrelevant, not bona fide, or not to be answered on the ground of privilege etc., in answer. The court then may consider and dispose of the Interrogatories. It will not for the court at this stage of granting leave to consider what particular questions the party interrogated should be compelled to answer. Proper time for considering that question is after the party interrogated has filed its affidavit in answer.
11. In the instant case the plaintiff has applied for leave to serve Interrogatories on the defendant No. 1. The defendant No. 1 has filed a reply, generally denying the allegations but not giving specific answer to the pointed questions put in the Interrogatories. The answer was also not on affidavit.
12. The procedure adopted by the learned Joint Registrar in dismissing the application, is not consistent with Rule 1 of Order 11. By a perfunctory order he has held that the defendant has already filed documents regarding Income-tax clearance certificate, the completion certificate and a letter that the loan amount has been paid back to the bank and they may be proved by evidence of witnesses. The Joint Registrar after he was of the view that the interrogatories are relevant for supporting the case of the appellant or impeach the case of the defendant, should have asked the defendant to answer the Interrogatories on affidavit. Thereafter the Joint Registrar should have considered which of the Interrogatory should the defendant No. 1 be compelled to answer. If an objection is raised about irrelevancy or otherwise of the Interrogatories the same may also be decided at that stage. The Joint Registrar in his order seems to have disallowed interrogatories on the ground that defendant had filed some document, which are answer to the interrogatories, which is not the correct approach. The impugned order, therefore, is liable to be set aside.
13. As regards the delay in filing the appeal the plaintiff has given due explanation. The appeal was filed in time but it was refiled late. The plaintiff was given due explanation which caused delay in condensation of the delay under Section 5 of the Limitation Act. It is now settled law that the delay in filing the appeal should be liberally condoned and that the endeavor of the court should be to decide the matter on merit of a case rather than throw it away at the threshold on technicalities. Application is supported by an affidavit. I find sufficient cause for the condensation of delay. The delay is condoned.
14. The result is that the appeal is allowed. Order of the learned Joint Registrar dated 28th August, 2001 is set aside. The defendant shall file the affidavit in answer to the Interrogatories. Thereafter the Joint Registrar will take up the application of the plaintiff filed under Order 11 Rule 1 CPC for consideration in order to decide which of the Interrogatories the defendant should be compelled to answer if he has not answered them. The affidavit shall be filed by the defendant within four weeks.
Renotify before the Joint Registrar on 13th August, 2002.