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Orissa High Court

Sukanta Kumar Biswal And Another vs Hrudananda Biswal And Others .... Opp. ... on 23 August, 2023

Author: K.R. Mohapatra

Bench: K.R. Mohapatra

Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 24-Aug-2023 17:12:54

                                                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                               CMP No. 924 OF 2023
                                               Sukanta Kumar Biswal and another    ....     Petitioners
                                                                     Mr. Khetra Mohan Dhal, Advocate
                                                                      -versus-
                                               Hrudananda Biswal and others        .... Opp. Parties

                                                     CORAM:
                                                     JUSTICE K.R. MOHAPATRA
                                                                     ORDER

                       Order No.                                    23.08.2023

                             01.          1.      This matter is taken up through hybrid mode.

2. The Plaintiffs-Petitioners in this CMP seek to assail the order dated 10th August, 2023 (Annexure-4) passed by learned Senior Civil Judge, Salipur in C.S. No.107 of 2022, whereby an application filed by them under Order XI Rules 1 and 2 CPC, has been rejected.

3. Mr. Dhal, learned counsel submits that the Petitioners as Plaintiffs filed the suit for partition by declaring the RSD Nos. 1323 and 1324 dated 29th April, 2022 to be illegal, void against the right, title and interest of the Plaintiff in respect of 'Ga' schedule property. The Defendant Nos.1 to 4 filed their written statement stating at Paragraphs-20(j) and (l) that the Defendant No.1 acquired the properties described in those paragraphs without mentioning the manner and details of such acquisition. Thus, it is stated that those properties are not ancestral property. Thus, before commencement of trial, the Plaintiffs-Petitioners filed an application under Order XI Rule 1 CPC to deliver interrogatories to Defendant Nos.1 to 4. The same are as follows:

Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Aug-2023 17:12:54 "Schedule of interrogatories proposed to be delivered to Defendant nos. 1 to 4.

1) What is the number of the document and the date of its registration under which Defendant No.1 purchased the suit land appertaining to Plot No.-969 Area Ac0.15dec and Plot No. 968 Area Ac0.17dec in Lot No.-2 of schedule- "Kha" from Surendranath Bisoi.

2) What is the number of the document and the date of its registration under which Defendant No.1 purchased the suit land appertaining Chaka Plot No.-1325 Area Ac0.59dec in Lot No.-2 of schedule "Kha" from Nilamani Mahanta Chakradhar Biswal.

3) What is the number of the document and the date of it's registration under which Defendant No.1 purchased ½ share from the suit land appertaining to Lot No.-3 of schedule "Kha" from Banamali Biswal.

4) What is the name and address of the co-owner form whom Defendant No.-1 purchased ½ share out of Lot No.4 of schedule- "Kha" and what is the number of the document and the date of its registration under which the said land was purchased."

It is submitted that Rule 1 of Order XI CPC makes it clear that interrogatories, which are relevant to the matter in question in the suit can be delivered by a party to be answered by the opponent.

4. In the instant case, although the Defendant Nos.1 to 4 have stated that Defendant No.1 had acquired the property, but the manner and details of such acquisition were not stated in the written statement. Thus, in order to shorten the period of litigation, the Plaintiffs-Petitioners filed an application under Order XI Rule 1 CPC. It is his submission that a petition under Order XI Rule 1 CPC should be allowed liberally, if the same are relevant to the subject matter in dispute. The questions which Page 2 of 6 Signature Not Verified // 3 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Aug-2023 17:12:54 could be put in cross-examination to the adversary can be asked to be delivered through interrogatories to shorten the litigation. In support of his case, he relied upon the case of Janaki Ballav Patnaik -v- Bennett Coleman and Co. Ltd., and others, reported in AIR 1989 Orissa 216, wherein this Court has held as under:

"4. Every party to a suit is entitled to know the nature of his opponent's case, so that he may know beforehand what case he has to meet at the hearing. But he is not entitled to know the facts which constitute exclusively the evidence of his opponent's case, the reason being that it would enable an unscrupulous party to tamper with his opponent's witnesses, and to manufacture evidence in contradiction, and so shape his case as to defeat justice. The nature of a plaintiff's case is disclosed in his plaint. The nature of a defendant's case is disclosed in his written statement. But a plaint or a written statement may not sufficiently disclose the nature of a party's case, and to make good the deficiency, either party may administer interrogatories in writing to the other through the Court. Interrogatories may also be administered by a party to his opponent to obtain admissions from him to facilitate the proof of his own case. The party to whom interrogatories are administered must answer them in writing and on oath. Administering of interrogatories is to be encouraged, as it is a means of getting admissions and tends to shorten litigation. It is a valuable right of which a party should not lightly be deprived. The fact that the party has other means of proving the fact in question is not a ground for refusing interrogatories."

He also relied upon the case of Bhakta Charan Mallik -v- Nataorar Mallik and others, reported in AIR 1991 Orissa 319, wherein it is held as under:

"6. ......Obviously the purpose of this rule is to enable a party to require information from his Page 3 of 6 Signature Not Verified // 4 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Aug-2023 17:12:54 opponent for the purpose of maintaining his own case or for destroying the case of the adversary. The main object of interrogatories is to save expenses and shorten the litigation by enabling a party to obtain from his opponent information as to the facts material regarding the question in dispute between them or to obtain admission of any facts which he has to prove on any issue which is raised between them. As a general rule, interrogatories are to be allowed whenever the answer to them will serve either to maintain the case of the party administering them or to destroy the case of the adversary. The power to serve interrogatories as it appears is not meant to be confined within narrow technical limits. It should be used liberally whenever it can shorten litigation and serve the interest of justice. However, this can be exercised within certain limits. The power to order interrogatories to he served and answer should be used with considerable care and caution, so that it is not abused by any party. A party entitled to interrogate his opponent with a view to ascertain what case he has to meet and the facts relied on and to limit the generality of the pleadings and find out what is really is in issue."

He further relied upon the case of Sri Ghanashyam Das Tekriwal -v- Smt. Jayanti Tiwari and others, reported in 2016 (I) OLR 783, wherein this Court has held as under:

"7. The right to administer interrogatories is neither absolute nor unqualified. A suit contemplates two sets of facts, i.e., (1) facta probanda (facts constituting party's case), and (2) facta probantia (facts constituting evidence).

A party is entitled to know only facta probanda and not facta probantia. Thus question sought for in the interrogatories can be put in cross- examination is per se no ground to reject the application under Order 11 Rule 1 C.P.C."

5. Although the case laws as above were placed before learned trial Court, but without taking note of the same, it rejected the petition holding that the Petitioners are adopting Page 4 of 6 Signature Not Verified // 5 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Aug-2023 17:12:54 dilatory tactics to delay the disposal of suit. He, therefore, prays for setting aside the impugned order under Annexure-4 and to direct learned trial Court to permit the Petitioners to deliver the aforesaid interrogatories to Defendant Nos.1 to 4 to be answered.

6. Upon hearing learned counsel for the Petitioners and on perusal of the case record as well as the case laws cited, it appears that the Defendant Nos.1 to 4 in their written statement although stated that the Defendant No.1 acquired certain properties, more fully described therein, but the manner and details of acquisition has not been stated. It is the settled law that a party has right to know the case of the opponent, but not his evidence. An interrogatory should ordinarily be allowed, if it relates to a matter in question in the suit. In the instant case, when the Defendant Nos.1 to 4 stated that Defendant No.1 acquired a portion of the suit property as mentioned therein, it is their duty to disclose the manner and details of such acquisition. But that having not been stated, the Petitioners filed an application to deliver the interrogatories to the Defendant Nos.1 to 4. This material aspect was not taken into consideration by learned trial Court while adjudicating the matter. However, the discretion should be exercised by the Court with care and caution to prevent misuse and abuse of the liberty given under law.

7. No doubt, the suit is at the stage of commencement of trial and the Petitioners have taken adjournments. But, that itself is not a ground to preclude them to deliver interrogatories, if the Petitioners are otherwise entitled to the same and the same is required for just adjudication of the suit.

Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Aug-2023 17:12:54

8. These aspects were not considered by learned trial Court while adjudicating the petition. Hence, this Court is of the considered opinion that the petition under Order XI Rules 1 and 2 CPC requires fresh consideration keeping in mind the ratio decided in the aforesaid case laws.

9. Accordingly, this Court while setting aside the impugned order under Annexure-4 remits the matter to learned trial Court to adjudicate the petition under Order XI Rules 1 and 2 CPC afresh giving opportunity of hearing to the parties concerned.

10. The CMP is allowed to the aforesaid extent.

11. Since the CMP is disposed of without issuing notice to Opposite Party Nos.1 to 4, they are liberty to seek for variation of this order, if they feel aggrieved.

Urgent certified copy of this order be granted on proper application.

                                                                              (K.R. Mohapatra)
               ms                                                                   Judge




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