Telangana High Court
M/S Omega Development Ventures Pvt. Ltd vs Ajay Karan on 28 April, 2022
Author: A.Rajasheker Reddy
Bench: A. Rajasheker Reddy
THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY
CIVIL REVISION PETITION Nos.567, 572 & 574 of 2022
COMMON ORDER
Since the issue and the parties in all these Revisions are same, they are being disposed off by Common Order.
2. CRP No.567 of 2022 is filed against orders in I.A.No.156 of 2021 in I.A.No.129 of 2020 in O.S.No.896 of 2020, CRP No.572 of 2022 is filed in I.A.No.158 of 2021 in I.A.No.131 of 2020 in O.S.No.897 of 2020 and CRP No.574 of 2022 is filed in I.A.No.157 of 2021 in I.A.No.127 of 2020 in O.S.No.898 of 2020 vide orders dated 07.02.2022 wherein and whereby the application filed under Order 11 Rule 1 r/w Section 151 CPC are allowed.
3. For the sake of convenience, the facts in CRP No.567 of 2022 is taken into consideration. The parties hereinafter will be referred to as arrayed in the interlocutory application.
4. It is the case of the petitioners that the suit OS No.896 of 2020 is filed seeking cancellation of the registered sale deed dated 01.09.2014 fraudulently executed by GPA holder i.e., 5th defendant in favour of the 1st defendant along with consequential relief of delivery of possession. Though the sale deed dated 01.09.2014 was presented for registration, the document was kept pending registration and was ultimately 2 registered by the Sub-Registrar, Narapally on 05.02.2016. The defendants were not disclosing the real nature of the transaction i.e, sale deed dated 01.09.2014. The sale consideration mentioned in the aforesaid sale deed is grossly undervalued and has not find place in the books of the 1st defendant company, as such, the said sale deed is a fictitious and sham document and the same is non-est and invalid document. The sale consideration mentioned in the registered sale deed is only 5% when compared to the market value. When there is no consideration, the contract would become void as per Section 25 of the Contract Act, 1872. It is also stated that the defendant Nos.1 to 4 have filed an application for rejection of plaint and before deciding the said application, it is necessary to know i) whether the 1st defendant actually paid Rs.10,00,000/- to the 5th defendant as recited in the sale deed and ii) Whether the 1st defendant actually not paid Rs.10,00,000/- to the 5th defendant. Therefore, the defendant Nos.1 to 5 have to answer within the mentioned interrogatories for determining the aspect of limitation in the application filed for rejection of plaint as the answer to the interrogatories will determine the true nature of the sale deed dated 01.09.2014.
5. Counter affidavit is filed by the respondents 1 to 4 denying the averments in the affidavit filed in support of this application 3 stating that this application is not necessary to be decided for deciding an application under Order 7 Rule 11 of CPC for rejection of plaint in I.A.No.129 of 2020. The present application is hit by the proviso to Order 11 Rule 1 CPC, which is applicable only to suit proceedings and not to interlocutory proceedings and that interrogatories can be delivered only when they relate to any matters in question in the suit and not otherwise. The interrogatories sought in the present application are irrelevant not only for the suit OS No.896/2020, but more particularly for determination of IA No.129 of 2020, which is filed for rejection of plaint and has to be decided only with reference to the pleadings in the plaint and/or the documents annexed thereto by the plaintiff and that the defence of the defendants is not at all relevant for the purpose of determining such petitions, as such, the present application is misconceived. Though I.A.No.129 of 2020 is filed long back, the petitioners are not coming forward for disposal of the same and in order to procrastinate the same, filed the present application. The application for rejection of plaint has to be decided based upon the averments allegations in the plaint along with the documents filed therewith and no new material can be brought at this stage. The defendants would have to establish a case for rejection of plaint based on the plaint itself and not upon the defense of defendants. If any 4 investigation/enquiry is being conducted by any authority in regard to payment of paltry sale consideration and not paid any sale consideration, the defendants will cooperate with the said authority/investigation, and the petitioners are not entitled to file the present petition and sought for dismissal of the application.
6. The trial Court, after considering the averments in the affidavit and counter affidavit, allowed the application. Aggrieved by the same, present Revision Petition is filed.
7. Heard Sri J.Prabhakar, learned Senior Counsel appearing for Sri N.M.Krishnaiah and Sri K.Sharath, learned counsel for the revision petitioners and Sri Rakesh Sanghi, learned counsel for the respondents/plaintiffs.
8. Sri J.Prabhakar, learned Senior Counsel and Sri K.Sharath, learned counsel for the revision petitioners submits that an application under Order 7 Rule 11 CPC is admittedly pending before the trial Court and in the said application, the present application is filed, which is not permissible under law. Since the application of rejection of plaint is pending, the question of interrogatories does not apply and more so, it can only apply to suit proceedings, but not to an interlocutory application. He also submits that insofar as interrogatories 1 and 2 are concerned, it is a matter of evidence and 5 interrogatories 3 and 4 are not germane to the suit proceedings and it is for the department concerned to cause an enquiry in different proceedings. In support of their contention, they relied on the judgments reported in the case of Lalinda Shipping Inc.Liberia v. The Board of Truestees of the Port of Visakhapatnam1 and Raj Narain v. Smt.Indira Nehru Gandhi2. They further submit that the plaintiffs cannot fish evidence by way of interrogatories even before the written statement is filed, that too, without there being any pleadings to that effect in the plaint. To support the contention, relied on the judgment reported in the case of Bagyalakshmi Ammal v. Srinivasa Reddiar3.
9. On the other hand, Sri Rakesh Sanghi, learned counsel for the respondents/plaintiffs submits that the alleged registered sale deed is a void document, as no amount of Rs.10,00,000/- is paid by the 1st defendant to the 5th defendant, and even if it is paid, it is a paultry amount, as such, before deciding an application for rejection of plaint, answering of interrogatories are very much necessary for just and proper adjudication of the suit. He also submits that Order 11 Rule 1 of CPC is applicable to interlocutory applications in view of Section 141 of CPC. In 1 1986(2) ALT 648 2 AIR 1972 Supreme Court 1302 3 AIR 1960 Mad 510 6 support of his contention, he relied on the judgment reported in 2020 (6) ALT 162. He also submits that the purchaser has to pay income tax.
10. In this case, it is to be seen that admittedly, an application under Order 7 Rule 11 for rejection of plaint is pending in I.A.No.129 of 2020 filed by the revision petitioners. The respondents/plaintiffs filed I.A.No.156 of 2021 under Order 11 Rule 1 for interrogatories. For the sake of convenience, Order 11 Rule 1 CPC is extracted hereunder:
" In any suit the plaintiff or defendant by leave of the Court may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer: Provided that no party shall deliver more than one set of interrogatories to the same party without an Order for that purpose:
Provided also that interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.
11. It is clear that this rule in its main clause does not embody any principle on which the interrogatories can be ordered. The two provisos indicate two rules, viz., (1) no party shall deliver more than one set of interrogatories to same party without an order for that purpose; and 2) the interrogatories that may be administered in oral cross- examination of witness shall be deemed to be irrelevant. 7 Indian courts fairly accepted the rule obtained in England in respect of this procedure under Order 31 of the rules of the Supreme Court. The object of interrogating is twofold;
"first to obtain admissions to facilitate the proof of your own case; secondly, to ascertain, so far as you may, the case of your opponent.
Further, it will save time and money. The decided cases disclose broadly the following principles;
(1) The interrogatories must be confined to the matters which are in issue;
(2) Interrogatories, which relate solely to credit, that is, questions which are only put to test the credibility for witnesses are not allowed. This rule is provided in the second proviso to Order 11 Rule 1 CPC and hence the information that could be obtained in cross-examination of a witness shall not form an interrogatory:
(3) The interrogatories shall not be oppressive and they should not be allowed if they exceed the legitimate requirements of a particular occasion.
They should not put an undue burden on the party interrogated;
(4) The interrogatories must be bonafide, must not be aimed to use for others or at a future litigation; (5) The interrogatories cannot be made in respect of contents of documents or which may tend to incriminate the material;
(6) The interrogatories shall have a note at the foot if they are administered to more than one person. This is provided in the main clause in Order Rule 1 itself.
The Court has wide discretion in the matter of interrogatories, and such a discretion exercised cannot be called in question unless it is clearly illegal. It is necessary to bear in mind that the rules stated above may overlap but they are intended to know just an outline of opponent's 8 case. One can compel his adversary to disclose the facts on which he intends to rely, but not his evidence. He cannot ask the list of witnesses to be furnished.
The information that can be obtained in document or in cross-examination cannot properly form the subject matter of interrogatories. Hence, it was described in some jurisdiction that interrogatories should not be fishing, that is, they must refer to some definite and existing state of circumstances, and not be put merely in the hope of discovering some case (see Lalinda's case (supra).
12. 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 maters in question.' The interrogatories served must have reasonably close connection with "matters in question". (See Raj Narain's case supra)
13. No defendant can be compelled to produce any documents or to give inspection of the same for the purpose of facilitating cross-examination, or for enabling the plaintiff to understand the genuineness or purport of the documents 9 relied upon by the defendants for proving his case. It will lead to strange results if such grounds are to be accepted by courts in ordering discovery or inspection, especially when these grounds are not the ones contemplated under the rules, which enable courts to direct discovery or inspection of documents. [(see Bhagyalakshmi Ammal's case (supra)].
14. In the instant case, it is the contention of the respondents/plaintiffs that the 5th defendant has not paid the alleged sale consideration of Rs.10.00 lakhs and even if it is paid, the same is less than 5% of the total market value of the suit schedule property, which is not at all consideration in the eye of law and same is void in view of Section 25 of the Indian Contract Act. The alleged registered sale deed contains that the amount of Rs.10,00,000/- has been paid and no oral evidence can be lead in respect of the contents of the documents, as such, in all, the plaintiffs having filed the suit, burden lies on them to prove their case, because they are seeking roving enquiry by filing present application.
15. A perusal of the impugned order goes to show that the Trial Court did not consider the question whether the 10 discovery was or was not necessary at the stage of the suit or whether the documents, the production of which was sought were or were not relevant. Before directing discovery of documents, the trial Court is required to satisfy itself that whether the documents are relevant for the purpose of disposing of the suit or not. A party cannot be permitted to have a roving enquiry to extract information which may or may not be relevant, which goes to show that the impugned order of the trial Court is without application of mind.
16. The interrogatories submitted by the plaintiff do not conform to matters which are in issue at the present stage of the suit. Before proving the case of the plaintiff, he is not supposed to fish out evidence of defence from the defendant. When the defendant is ready to face the trial and subject himself for cross-examination, all the questions given in the interrogatories must be put to him in the cross-examination during the course of trial. The plaintiff has to enter into the box and prove his case first. Further the interrogatories are not only irrelevant but also the questions are such that they are not admissible even to put those questions at the time of cross-examination in the box. When the requirements 11 under Order 11, Rule 1 CPC are not complied with, the trial court ought to have dismissed the petition.
17. Though there is no dispute with regard to the principle laid down Super Casettes Industries v. Nandi Chinni Kumar [2020 (6) ALT 162] stating that in view of Section 141 of CPC, the procedure which is to be adopted in a regular suit, as far as possible, has to be followed while dealing with interlocutory matters also subject to certain exceptions. No doubt, as per Section 141 of CPC, which is applicable for the suits is also applicable for interlocutory applications, but in the present case, the applications under Order 11 Rule 1 of CPC are filed in interlocutory applications filed under Order 7 Rule 11 of CPC and the scope of enquiry under Order 7 Rule 11 of CPC is to the extent of pleadings contained in the plaint as well as documents annexed therein and the truth or otherwise of the same cannot be gone into at this stage and it will not serve any purpose and the respondents/plaintiffs filed application for conducting roving enquiry about the pleadings, which is not permissible under Order 7 Rule 11 12 of CPC and at this stage, the applications filed under Order 11 Rule 1 of CPC are premature.
18. Though the learned counsel for the respondents/plaintiffs have relied upon several judgments on different aspects, the same are not applicable to the facts and circumstances of the case on hand.
19. It is pertinent to note here that Chapter VI of the Indian Evidence Act, deals with the exclusion of oral by documentary evidence, especially Section 93 of the Act, wherein it provides for exclusion of evidence or amend ambiguous document when the language used in a document is, on its face, ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects. Section 94 of the Act also provides for exclusion of evidence against application of document to existing facts when the language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts. In the instant case, even according to the learned counsel for the respondents/plaintiffs, there is no challenge to the language 13 used in the subject registered document except the amount. As per Section 99 of the Act, persons who are not parties to a document, or their representatives in interest, may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document, however, in this case, the plaintiffs/respondents sought to answer interrogatories by the revision petitioners/defendants 1 to 4, who are parties to the subject registered sale deed.
21. In view of foregoing discussion, all the civil revision petitions are allowed setting aside the impugned order dated 07.02.2022.
There shall be no order as to costs. As a sequel thereto, miscellaneous applications, if any, shall stand closed.
_________________________ A.RAJASHEKER REDDY, J Date: 28.04.2022 tk THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY 14 CIVIL REVISION PETITION Nos.567, 572 & 574 of 2022 Date: 28.04.2022 tk