Bombay High Court
Shri.Amol Vijay Joshi vs Smt. Moushumi Shailesh Vaidya ... on 15 March, 2023
Author: N. J. Jamadar
Bench: N. J. Jamadar
15-AO100-2021+.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 100 OF 2021
SANTOSH Amol Vijay Joshi ...Appellant
SUBHASH
KULKARNI Versus
Digitally signed by
SANTOSH SUBHASH
Smt. Moushumi Shailesh Vaidya through
Shailesh Yadunath Vaidya & ors. ...Respondents
KULKARNI
Date: 2023.03.17
19:51:25 +0530
WITH
INTERIM APPLICATION NO. 1363 OF 2020
IN
APPEAL FORM ORDER NO. 100 OF 2021
Mr. Shankar Thorat, for the Appellant.
Mr. S. S. Jinsiwale, for Respondent No.1.
Ms. Payal Upadhyay, i/b ANP Chambers, for Respondent No.7.
CORAM: N. J. JAMADAR, J.
DATED : 15th MARCH, 2023
ORDER:-
1. Heard the learned Counsel for the appellant.
2. The challenge in this appeal is to an order dated 9 th July, 2019, passed by the learned 5th Jt. Civil Judge, Senior Division, Pune, on an application (Exhibit-113) for dismissal of the suit under Order XI Rule 21 of the Code of Civil Procedure, 1908 ("the Code") for non-compliance of the directions to reply to the interrogatories given by the Court by order below application (Exhibit-69).
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15-AO100-2021+.DOC
3. The appellant - defendant No.1 had filed an application (Exhibit-69) seeking direction to the plaintiff to answer the interrogatories. The said application came to be allowed and the plaintiff was directed to answer the interrogatories.
4. It was the contention of the appellant before the trial court that there was non-compliance of the order of the said Court, which entailed the consequence of the dismissal of the suit under Order XI Rule 21 of the Code.
5. By the impugned order, the learned Civil Judge recorded that the answers to the interrogatories were taken on record after condoning the delay pursuant to the order below application (Exhibit-118). Since the interrogatories have been answered by the Power of Attorney holder of the plaintiff, the claim of defendant No.1 that there was non-compliance of the order, did not merit acceptance. Hence, the application came to be rejected.
6. Being aggrieved, defendant No.1 is in appeal.
7. The learned Counsel for the appellant would urge that direction to answer interrogatories cannot be said to have been complied with as the interrogatories were of such a nature that only the plaintiff in person could have answered those interrogatories on the basis of her personal knowledge. The 2/4 15-AO100-2021+.DOC answers to the interrogatories by Mr. Yadunath Ganesh Vaidya, the purported Power of Attorney holder of the plaintiff, therefore, cannot be said to be in conformity with the provisions of Order XI of the Code.
8. To bolster up the submission Mr. Thorat placed reliance on the judgments of the Supreme Court in the cases of Mohinder Kaur vs. Sant Paul Singh1 and Janki Vashdeo Bhojwani & Anr. vs. Indusind Bank Ltd. and others2.
9. It is trite that the Power of Attorney can only depose to the facts which are within the personal knowledge and "to act" does not subsume within its fold the power to depose. Nobody can authorize another to depose on his behalf.
10. However, the aforesaid propositions do not govern the facts of the case at hand. It is imperative to note that the suit was instituted by the plaintiff through a Power of Attorney. Answers to the interrogatories by a Power of Attorney on the strength of the information and knowledge of the plaintiff does not seem to be in breach of the mandate contained in Order XI of the Code. Rule 10 of Order XI provides in clear terms that no exception shall be taken to any affidavit in answer, but if in the sufficiency or otherwise of any such affidavit objected to as insufficient 1(2019) AIR 4780.
2 2005(3) Supreme Court 275.
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15-AO100-2021+.DOC shall be determined by the Court. Inadequacy or insufficiency of answers cannot be equated with the non-compliance of the order to answer interrogatories entailing consequences provided in Rule 21 of Order XI. In my view the analogy of 'deposition' before the Court can not be readily imported to answers to the interrogatories. Hence, no fault can be found with the impugned order.
11. The appeal thus stands dismissed.
12. In view of disposal of the appeal, Interim Application No.1363 of 2020 does not survive and stands disposed.
[N. J. JAMADAR, J.] 4/4