Calcutta High Court (Appellete Side)
Mamata Ray vs Ranjan Kumar Chakravarti on 27 November, 2019
Author: Shampa Sarkar
Bench: Shampa Sarkar
1 27.11.2019Court No. 19
Item 24 & 25 CP C.O. 3871 of 2019 with C.O. 3872 of 2019 Mamata Ray vs. Ranjan Kumar Chakravarti Mr. Bhudeb Bhattacharyya, Sr. Adv., Mr. Sugata Shankar Roy.
.....for the petitioner.
Mr. Prantick Ghosh, Mr. Siddhartha Sarkar, Mr. Hirak Roy.
.....for the opposite party.
Since common issues are involved in these two revisional applications, the same are disposed of by this common order.
Leave is granted to the learned advocate-on-record for the petitioner to correct the cause title of these two revisional applications.
The substituted plaintiff in a suit for declaration and permanent injunction pending before the learned Civil Judge (Senior Division) Second Court at Barasat, North 24 Parganas, has filed this application being aggrieved by and dissatisfied with an order dated July 17, 2019, passed in Title Suit No. 27 of 2010 being heard analogously with Title Suit 45 of 2011.
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By the impugned order the learned court below rejected the petitions of interrogatories filed in both the suits by the petitioner as plaintiff as also the defendant respectively. The learned Judge came to a finding that upon perusal of the interrogatories, it revealed that the questions of interrogatories were subject matters of both the suits and those interrogatories were required to be adjudicated upon taking evidence during trial. The learned court further found that by the said interrogatories attempts were made to extract evidence. The interrogatories, according to the learned court were in the form of questionnaires and questions of facts. The court was of the view that the said questions should be decided on evidence at the stage of trial.
The plaint case is that the plaintiff Avijit Ray in Title Suit No. 27 of 2010 came upon possession of the premises in question by way of an agreement for assignment dated February 17, 1999 and since then late Avijit Ray, had been residing in the said premises on and from February 17, 1999 along with his family members by paying all rates, taxes, electricity bills etc. In the second week of December, 2009, the opposite party/defendant started creating some disturbances by uprooting the floor tiles of the roofs constructed by late Avijit Ray in 1999; that the plaintiff made some construction on the roof and the defendant was trying to obstruct the same by blocking a substantial part of the roof; that the plaintiff had paid Rs. 13,40,000/- as consideration money in terms of the agreement for assignment; that the civil contractor M/s Civicon India had been given the contract to complete the construction of a two-storied building and the plaintiff had paid the entire cost of construction; that M/s Prabhat 3 Udyog supplied the marble; that the plaintiff paid total sum of Rs.13,40,000/- towards consideration money for the 1st floor of the flat. Details of the payment made has also been enumerated in the plaint; that the plaintiff had become the joint owners of the property by virtue of making the payments as aforesaid; that the plaintiff called upon the defendant by lawyer's notice to stop such illegal activities and not to infringe the privacy of the plaintiff; that the defendant continued with such illegal activities and the plaintiff was constrained to file the suit. The plaintiff prayed for declaration of right, title and interest in respect of the suit property along with a right to enjoy the proportionate undivided share or interest.
The defendant filed his written statement and denied the agreement of assignment. The defendant's case was that the defendant had obtained the lease of the plot in question in plot no. 192 in block - BE in Sector - 1 of North Salt Lake City for a period of 999 years from the Government; that late Avijit Ray was in dire need of some accommodation and he approached the defendant and the defendant inducted him as a lessee. The said Avijit Ray came to use the entire first floor of the two storied building on payment of Rs. 5000/- per month; that an agreement to that effect was entered into on February 24, 1999; that the plaintiff had loaned Rs.80,000/- to the defendant which was being adjusted from the monthly rent that the agreement commenced on March 1, 1999 and was valid upto February 28, 2009; after adjustment of Rs. 80000/-, the plaintiff again paid Rs.13,40,000/- by different instalments by cheque to the defendant against the licence fee; that the plaintiff had misbehaved with the defendant; that after 4 expiry of the period of agreement of licence the defendant asked the plaintiff to leave; that the defendant by a letter dated April 7, 2009 revoked the licence. Thereafter, a pay order was sent by the plaintiff which was not accepted by the defendant and the defendant asked the plaintiff to quit and vacate.
Now the said late Avijit Ray filed a petition with interrogatories for the defendant to answer the questions. The said interrogatories was filed on August 12, 2015. Although the interrogatories was filed on the date fixed for discovery and inspection but the same was kept pending for a long period of two years when the present petitioner was substituted.
It appears from the interrogatories that the questions relate to i) the payment of sum of Rs.13,40,000/-, ii) whether the defendant had paid for the construction of the house, iii) name of the contractor who had constructed the house, iv) whether the completion certificate was obtained and whether the defendant paid the Bidhannagar Municipality tax, v) disclosure of the memorandum of agreement with M/s Civicon India, vi) disclosure of documents to show receipt of Rs.80,000/- on account of recoverable loan, vii) statement of accounts to show liquidation of Rs.13,40,000/-, viii) break up of the payment of alleged loan and whether the income from house property was reflected in the income tax return of the defendant.
Upon perusal of these interrogatories, I do not find that they have any bearing on the real controversy in issue. It is not a case that the suit cannot proceed or the plaintiff cannot proceed with the case unless these interrogatories are answered. The clear case of the plaintiff is payment of Rs. 13,40,000/- to the 5 defendant for assignment of a part of the property on which he had made considerable investment, on the understanding that he would become a co- sharer by virtue of the agreement for assignment. He thus prayed for declaration of his right title and interest in respect of the suit property.
The object and purpose of serving interrogatories is to enable a party to require information from his opponent for the purpose of maintaining his own case, so that he may know beforehand, the case he has to meet at the hearing. The court should exercise such power of allowing delivery of interrogatories with great care and caution so that the same is not abused by any party. Interrogatories have to be confined to the facts, which are relevant to the matters in question in the suit. Every party to a suit is entitled to know the nature of his opponent's case, but is not entitled to know the facts which constitute exclusively the evidence of his opponent's case. As this is a suit of declaration of title, the plaintiff must prove his own case by establishing his title.
The plaintiff filed the suit for declaration of his title so acquired and permanent injunction against the defendant from disturbing his possession. It is upto the plaintiff to prove his case. These questions relate to facts which may be put to the defendant during the cross-examination. The plaintiff cannot extract admissions from the defendant by way of interrogatories in order to prove his case. More over, the suit is now at the stage of evidence and much time has lapsed and the questions of facts framed in the form of interrogatories in this case, are always available to the plaintiff to be put to the defendant at the stage of cross-examination.
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The Hon'ble Apex Court in the decision of Raj Narain vs. Indira Gandhi, reported in AIR 1972 SC 1302. The Hon'ble Apex Court held that questions that were relevant during cross-examination were not relevant as interrogatories. The interrogatories served must have reasonable and close connection with any matter in question.
The defendant in this case has not come up with any specific case or new case which has taken the petitioner by surprise as such clarifications would not be required to enable the petitioner/plaintiff to prove his case. From the averments in the written statement the plaintiff is well aware of the case of the opponent and can meet the same at the hearing.
The decision relied on behalf of the petitioner in the matter of P. Balan v. Central Bank of India, reported in AIR 2000 Kerala 24, reiterated the principle that interrogatories are to be kept within the legitimate limits within which they were permissible. Administering of interrogatories was definitely a step desirable as they bring an action to an end at an early stage by shortening the life span of a litigation. However, the nature of interrogatories, in this case, are either matters to be put to the defendant on cross-examination or on such matters which are not connected with the case. Moreover much time has elapsed and the purpose of shortening the litigation will not be served.
Under such circumstances, I do not find any reason to interfere with the order impugned. The revisional application being C.O. 3871 of 2019 is dismissed.
There shall be no order as to costs.
7However, it is made clear that the interrogatories, sought to be administered, being questions of fact will be available to the plaintiff to be put to the defendant at the stage of cross-examination during trial.
C.O. 3872 of 2019 In view of the disposal of C.O. 3871 of 2019, no further order need to be passed in this revisional application as the order passed above will govern this revisional application also and, accordingly, the same is disposed of.
There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible upon complying with all usual formalities.
Photocopy of this order, duly countersigned by the Assistant Court Officer, shall be retained with the records of C.O. 3872 of 2019.
(Shampa Sarkar, J.)