Madras High Court
G. Nanchil Kumaran vs Govindasamy Reddiar on 22 September, 1999
Equivalent citations: (1999)3MLJ660
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER M. Karpagavinayagam, J.
1. Challenging the order allowing the application for interrogatories under Order 11, Rule 1 of C.P.C. filed by the plaintiff, Nanchil Kumaran, the defendant has filed this civil revision petition.
2. Govindasamy Reddiar filed a suit in O.S.No. 128 of 1989 before the Sub Court, Poonamallee to direct the defendant to pay a sum of Rs. 49,000 being the past damages for wrongful use and occupation of the suit property belonging to the plaintiff and for further damages at the rate of Rs. 100 per day as future damages from the date of plaint till the defendant surrenders possession.
3. The defendant, the petitioner herein, filed a written statement stating that the plaintiff was the benami of the suit property and that the suit property was actually purchased in his name by utilising the money pooled by the plaintiff's daughter, the erst-while wife of the petitioner herein, which included the defendant's money to the tune of Rs. 70,000 which is 2/3rd of the sale consideration and that earlier he filed a suit in O.S.No. 1537 of 1987 for permanent injunction against the plaintiff in this suit and obtained interim injunction and that therefore, the defendant is not liable to pay any damages as claimed by the plaintiff.
4. In 1995 the plaintiff, the respondent herein filed a petition in I.A.No. 166 of 1995 under Order 11, Rule 1 of C.P.G. to grant him leave to serve the interrogatories and direct the defendant to answer the same within the time to be fixed by the court. Resisting this petition, the defendant filed a counter stating that the interrogatories are not relevant and the issues that arise in the instant suit should be decided only after the full-fledged trial after examining the witnesses in box and as such, the petition is liable to be dismissed.
5. However, the learned Subordinate Judge, Poonamallee, on considering the petition and the counter and the arguments of the counsel for the parties, allowed the petition granting leave for interrogatories. This is challenged in this civil revision petition by the defendant in the suit.
6. Mr. Subramanian, the learned Counsel for the petitioner/defendant would assail the order impugned on the following grounds:
The interrogatories submitted by the plaintiff do not conform to matters which are in issue or sufficiently material 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. Thereafter, the defendant has to enter into the box and prove his case. Furthermore, 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 under Order 11, Rule 1, C.P.C. are not complied with, the trial court ought to have dismissed the petition.
7. On the other hand, Mr. Sundar Rajan, the learned Counsel appearing for the plaintiff, the respondent herein, would submit the following:
The order impugned is perfectly legal. The interrogatories would only contain the questions which are quite relevant to the suit. If those questions are answered by the defendant, most of the legal questions would get settled and it would help the civil court to dispose of the suit fairly and save the time and cost. If the interrogatories are answered by the defendant, the same would narrow the scope of the suit and controversies at issue. Though detailed reasons have not been given in the impugned order, the conclusion by allowing the application under Order 11, Rule 1, C.P.C. is correct. At any rate, invoking revisional jurisdiction is not permissible, since the impugned order does not call for interference so as to attract the provisions of Section 115,C.P.C.
8. In the light of the above rival contentions, let me now see whether the order impugned would suffer from any illegality, so as to correct the same by exercising the power under Section 115, C.P.C.
9. Before dealing with the said question, a few facts in a nutshell could be stated for the purpose of understanding the nature of the case on hand.
10. Nanchil Kumaran, the petitioner herein married one Thilagavathi in the year 1982. They were living together in the suit property bearing Door No. 4, Ravi Colony 1st Street, St. Thomas Mount, Madras. The suit property was purchased in the name of Govindasamy Reddiar, the father of the said Thilagavathi, on 12.7.1984 out of the money of both husband and wife. Both are I.P.S. officers working in the Tamil Nadu Police Department. A daughter was born to them. There was some misunderstanding between the husband and wife. So, the wife left the house on 29.5.1987. In the house, the defendant Nanchil Kumaran and daughter Divya were living. On 15.7.1987 she came to the suit property and took away the child Divya taking advantage of the fact that Nanchil Kumaran was absent in the house. Therefore, he filed a petition for custody of the child before the High Court.
11. In the meantime, Nanchil Kumaran filed a suit in O.S.No. 1537 of 1987 before the District Munsif Court, Poonamallee for permanent injunction. He also filed an application for interim injunction and the same was granted. Later, it was made absolute after hearing the counsel for Govindasamy Reddiar and Thilagavathi, who were the defendants in the said suit.
12. At this stage, the said Govindasamy Reddiar filed the present suit in O.S.No. 128 of 1989 before the sub Court, Poonamallee, On 7.12.1988 claiming damages for the illegal occupation of the suit property by the defendant Nanchil Kumaran. In February 1990, the defendant filed a written statement stating that he is not entitled to pay any damages, as he also paid Rs. 70,000 which is 2/3rd of the sale consideration.
13. In the meantime, O.S.No. 1537 of 1987 pending before the District Munsif Court, Poonamallee was directed to be transferred to be tried along with the present suit by the sub court, Poonamallee, as the issue raised in that case is similar to this case. The said suit was renumbered as O.S.No. 193 of 1992.
14. At this stage, Nanchil Kumaran, the defendant in the present suit filed another suit in O.S.No. 637 of 1992 in the sub court, Poonamallee for partition of the suit property contending that he had paid 2/3rd share in the sale consideration for the purchase of the said property. In this case, both Govindasamy Reddiar and his daughter Thilagavathi were made as defendants. In the said case, written statement was filed by them in March 1994.
15. In January 1995, the plaintiff, the respondent herein filed a petition in I.A.No. 166 of 1995 in O.S.No. 128 of 1989 under Order 11, Rule 1 of C.P.C. to grant leave to serve interrogatories on the defendant, the petitioner herein to answer the questions. The petitioner also filed a counter stating that the said interrogatories cannot be permitted to be served, as the issues in the present case would have to be decided only after examination of the witnesses during trial.
16. The trial court, while allowing the application, would observe that the interrogatories are relevant to this proceeding and therefore, the application has to be allowed, in order to minimise the trial proceedings. The extract of the said order is as follows:
On careful appreciation of this proviso to Order 11, Rule 1, C.P.C., I find that these interrogatories furnished along with this petition are seems to be relevant to this proviso. According to the petitioner if the interrogatories are answered by the respondent, the proceedings of this suit will be simplified and it will not take a long time in trial. On the other hand, the respondent has contended that the interrogatories are not necessary and that this petition has to be dismissed accordingly. Further he would contend that with respect to the questions supplied by way of interrogatories the petitioner is not entitled to put these questions even at the time of cross-examination. On careful appreciation of all the relevant circumstances I find that these interrogatories are not irrelevant to this proceedings. The questions supplied by the petitioner seems to be very relevant to the subject matter of the suit property. Therefore, in the interest of justice and to minimise the trial proceedings, I find that this petition deserves to be allowed.
17. The reading of the order impugned as extracted above would reveal that the details of the interrogatories said to have enclosed along with the application under Order 11, Rule 1, C.P.C. have not been incorporated in the order. It is also clear that there is no discussion as to how those interrogatories and questions would be relevant to the issue framed in this case. It is quite appropriate to note in this connection that the relevancy with the issue is the most important one for deciding the application under Order 11, Rule 1, C.P.C.
18. Before dealing with the interrogatories and relevancy which are required under Order 11, Rule 1, it would be proper to remember respective stands taken the parties in respect of the issue that may arise for consideration in the present suit.
19. The case of the plaintiff is this:
Govindasamy Reddiar, the plaintiff purchased the suit property at Madras in his name under the registered sale deed on 12.7.1984. After the purchase, he allowed his daughter Thilagavathi and son-in-law Nanchil Kumaran to live there. He also left his native place Dharmapuri and had come to Madras to live with them. During that time, a dispute arose between his daughter and son-in-law. Ultimately, the plaintiff's daughter was driven out of the house in 1987. There was no reconciliation. Since Rs. 45,000 was spent towards part improvement of the suit property by the defendant, the plaintiff sent the said sum by mail transfer to the defendant. Then, the plaintiff sent a notice to the defendant to vacate the house. Thereafter, the defendant filed a suit in O.S.No. 1537 of 1987 in the District Munsif's Court, Poonamallee for permanent injunction against Govindasamy Reddiar and his daughter from interfering with his possession and obtained an order of interim injunction. In the petition for custody filed by the defendant before the High Court, the defendant admitted that the suit property belongs to the plaintiff. In April 1988, he sent a notice asking for the damages. The defendant sent a reply notice dated 28.4.1988 with false allegation with the false claim of a sum of Rs. 2,34,000 being his share in the suit property. The plaintiff already paid Rs. 45,000 to the defendant for the improvements made to the suit property by the defendant. Therefore, the defendant is liable to pay damages for the wrongful use.
20. The case of the defendant, the petitioner herein is this:
Though the suit property was purchased in the name of the plaintiff, he was only a name lender and the property was not actually purchased by him, as he had no means to pay the sale consideration. The said property was purchased in his name by utilising the money earned by the plaintiff's daughter Thilagavathi and the money belonged to the defendant. The money given by the defendant, namely, Rs. 70,000 was the 2/3rd of the sale consideration. Nanchil Kumaran with his wife Thilagavathi occupied the suit house in 1984 in their own right. But, on 29.5.1987 the plaintiff's daughter Thilagavathi deserted the defendant for her own adulterous and sexual escapades. On 15.7.1987 the said Thilagavathi with the help of her paramour and goondas came to the suit property and removed all the belongings in the suit house and also took away the minor child Dhivya, when the defendant was absent in the house. The defendant gave a police complaint which was registered by the police, Thereafter, claiming right in the property, the defendant filed a suit in O.S.No. 1537 of 1987 before the District Munsif's Court, Poonamallee for permanent injunction and also interim injunction pending the suit. As the defendant's occupation of the suit property is by virtue of his own right, the question of damages for use and occupation on the allegation of revocation of any licence does not arise. Therefore, the suit is liable to be dismissed.
21. As stated earlier, the present suit was filed in 1988. The written statement had been filed by the defendant in February 1990. The connected suit which was filed in District Munsif's Court, Poonamallee also was transferred to Sub Court, Poonamallee to have its trial along with this suit. The written statement was filed in the said suit also. In the meantime, the petitioner also filed another suit for partition in respect of the suit property. Issues also have been framed.
22. It is seen from the records that in the present suit O.S.No. 128 of 1989 the issues which have been framed on 23.1.1991 itself are as follows:
23. Then, the case was posted for trial and it was periodically adjourned from 7.2.1991 to various dates. On 30.3.1992 it was ordered that O.S.No. 1537 of 1987 is to be tried along with the present suit O.S.No. 128 of 1989. Thereafter, the case again was posted for trial from 1.12.1992 to various dates. Only in February 1995 the application under Order 11, Rule 1, C.P.C. was filed. Ultimately, the final order was passed on 22.8.1995.
24. The proposed interrogatories enclosed with the petition under Order 11, Rule 1 are as follows:
(1) Did you not occupy the suit premises No. 4, Ravi Colony, St. Thomas Mount, Madras, only on account of the fact, that you happened to be the husband of the plaintiff's daughter Mrs. Thilakavathy?
(2) Is it not the suit property owned by the plaintiff?
(3) Is it not true that the plaintiff had purchased the suit property and the sale deed also stands in his name?
(4) Is it not true that your wife Mrs. Thilakavathi had also filed O.P. in the High Court, for the custody of the minor child divya in O.P.No. (5) Is it not true that you had filed a petition O.P.No. on the file of the High Court, Madras, for custody of minor child?
(6) Is it not true that both the O.Ps. were taken up together for enquiry by the High Court?
(7) Is it not true that you have been examined as P. W. 1 in the High Court in those proceedings?
(8) Is it not true that you had admitted during cross-examination by Mr. Doraisamy, Advocate on 7.12.1987 that the suit property belongs to Mr. Govindasamy Reddiar, the plaintiff in the present suit?
(9) Is it not true that you have answered before Justice Mr. Bhaskaran, on 7.12.1987 in the following manner?
(10) Is it not true that you have not claimed ownership of the suit property at any point of time during 1987 and 1990?
(11) Is it not correct that you have not included the suit property, as owned by you, in your Income Tax returns?
(12) Is it not a fact, that you have claimed House Rent Allowance from the Government for your occupation of the suit premises?
(13) Is it not true that you have not included the suit property in your list of assets filed before the Government as I.P.S. Officer?
(14) Is it not true that you have applied for housing loan from the Government on the basis that you are not owning any property of your own and availed the loan?
(15) Is it not true that the present house occupied by you No. 133, Astalakshmi, Avenue, Madras 116 have been built after you availed Government loan for the same?
(16) Is it not true that your Income Tax returns for the year 1985 to 1990, discloses no other source of income except your salary?
(17) Is it not correct that you have at present unauthorisedly let out the suit premises and collecting the rent from the occupants?
25. As noted above, there shall be a joint trial of these cases as ordered by the District Court. There is also another suit for partition filed by the defendant in the present suit. This factor also shall be taken into consideration, while deciding as to whether these interrogatories can be permitted to be served at the present stage and whether these would be relevant to the present proceedings.
26. Order 11, Rule 1, C.P.C. reads as follows:
Discovery by interrogatories: 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.
27. Number of authorities have been cited by the counsel for both the parties with reference to the applicability of the provisions referred to above, to the present case in order to substantiate their respective pleas.
28. Let us now look into the principles laid down relating to the above provisions by this Court as well as the other courts one by one.
29. In Bhakta Charan Mallik v. Nataorar Mallik , the Orissa High Court would hold thus:
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 the litigation and serve the interest of justice. However, this can be exercised within limits. The power to order interrogatories to be 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. At the same time interrogatories must be confined to facts which are relevant to the matters in question in the suit. Interrogatories which are really in nature of cross-examination will not be allowed.
30. In Delhi Vansapati Syndicate v. K.C. Chawala , it is held as follows:
It is true that a party is not entitled to require its adversary to answer interrogatories, the effect whereof would be to enable it to know the facts, which exclusively constitute the evidence of his opponent's case. But, it is equally true that it can administer interrogatories to its opponent, to obtain admissions from him to everything that on the pleadings of the parties is material for the decision of the case, with the object of facilitating the proof of its own case, as also saving the costs which it may otherwise have to incur on adducing evidence to prove the necessary facts. As observed by their Lordships in Raj Narain v. Indira Gandhi A.I.R. 7972 S.C. 1302. The interrogatories must have reasonably close connection with matters in question.
31. In Tata Iron And Steel Co. v. Rajarishi Exports A.I.R. 1978 Ori. 179, it is observed as follows:
A party seeking answers to his interrogatories from the other party cannot direct the latter to answer the questions in a particular manner so as to suit the former's liking or convenience.... Any party to the suit or the court may use any portion thereof as provided in Rule 22 of Order 11 or the court may ultimately reject any portion of the same by declaring the same as irrelevant or may ignore the same for all intents and purposes.... On serving interrogatories on a party under Order 11, Rule 1, C.P.C. one cannot compel that party to make discovery on oath of any document.
32. In Nishi Prem v. Javed Akhtar , the following is the extract of the observations made by the Division Bench of Bombay High Court:
This rule is enacted to enable the parties to know the nature of the opponent's case, but the rule does not entitle the party to ascertain the facts which constitute exclusively the evidence of the other side, the reason being that it would enable unscrupulous parties to tamper with the witnesses of the other side and to manufacture evidence in contradiction and so shape his case as to defeat justice. In cases where the plaint or written statement does not necessarily disclose the nature of the case, then interrogatories are administered to make good the deficiency. Interrogatories can also be administered to obtain admissions from other parties to facilitate the proof of the claim. Order 11, Rule 6 of the Code of Civil Procedure provides that the interrogatories may be objected on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit or that the matters inquired into are not sufficiently material at that stage. It is well-settled that the parties are not entitled to administer interrogatories for obtaining discoveries of facts which constitutes evidence of its adversary's case or title.
33. While explaining the scope of Order 11, Rule 1, C.P.C., the Supreme Court in Raj Narain v. Smt. Indira Gandhi , would observe as follows:
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 matters in question". The interrogatories served must have reasonably close connection with "matters in question". Viewed thus, interrogatories 1 to 18 as well as 31 must be held to be irrelevant.
34. In Ganga Devi v. Krishna Prasad Sharma A.I.R. 1967 Ori. 19, the Orissa High Court would observe thus:
The main object of interrogatories is to save expenses by enabling a party to obtain an admission from his opponent which makes the burden of proof easier. The interrogatories are permissible with regard to matters which are relevant to the facts directly in issue and would not be extended to prying into the evidence where with the opposite party intends to support his case.
35. In Ashok Kumar v. Dalmia Institute of Scientific and Industrial Research , the gist of the observations made by the Orissa High Court is as follows:
Though the administering of interrogatories is to be encouraged because they not frequently bring an action to an end at an earlier stage to the advantage of all parties concerned, it shall be seen that the interrogatories must be confined to matters which are in issue or sufficiently material at the particular stage of the action at which they are sought to be delivered, or to the relief claimed. The interrogatories should be confined to obtaining from the party interrogated admissions of facts which it is necessary for the party interrogating to prove in order to establish his case.
36. In Ramlalasao v. Tansingh A.I.R. 1952 Nag. 1350, a Division Bench of the Nagpur High Court would hold as follows:
The right of a party to deliver interrogatories to his opponent and get answers from him is a valuable one in conducting his cause and he should not lightly be deprived of it. It must be remembered that discovery of facts and documents often tends to shorten litigation and save expenses. The learned Judge had not framed all the issues arising from the pleadings of the parties. If he had framed these issues and permitted the parties to make full use of Order 11 and 12, Civil Procedure Code, the trial would have been shortened and he would have found ample material to decide the case correctly.
37. In Thakur Prasad v. Md. Sohayal A.I.R. 1977 Pat. 233, the Patna High Court would held thus:
The main object of interrogatories is to save expenses and time by enabling a party to obtain from the opponent information as to facts material to the question in dispute between them and to obtain admissions of any facts which he has to prove on any issue which is raised between them. An admission of the adversary will serve to maintain the case of the party administering the interrogatory or the answer might be destructive of his own.
38. In Rajasthan Golden Transport Co. (Pvt.) Ltd. v. Avon F.I. Pvt. Ltd. , the Delhi High Court would observe as follows:
The main object of delivering interrogatories by a party is to discover facts in order to facilitate the proof of his own case. However, the power to allow interrogatories to be administered by one party to another is always subject to the discretion of the court....It is well-settled that interrogatories must be confined to the matters which are in issue or sufficiently material at the particular stage of the action at which they are sought to be delivered or to the relief claimed. The proviso to Order 11, Rule 1 in terms states that the interrogatories which do not relate to any matter in question in the suit shall be deemed irrelevant notwithstanding that they must be admissible on the oral cross-examination of a witness....They must not be unreasonable, vexatious, prolix, oppressive or scandalous. Further, they must not be of fishing nature.
39. The reading of the relevant paragraphs of the decisions cited above would clearly reveal that the court has discretion to admit or refuse an application for discovery of documents and while exercising the discretion, the court shall have to necessarily bear in mind the purport and purpose of the provisions of Order 11, Rule 1 of C.P.C.
40. The purpose of this rule is to enable a party to require information from his opponent for the purpose of supporting his own case. The main object of the interrogatories is to save expenses and shorten the litigation by enabling a party to obtain from his opponent the information as to the facts material regarding the question in dispute between them.
41. The power to grant leave for interrogatories 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 only within certain limits. The power to order interrogatories to be served and answer should be used with considerable care and caution, so that it is not abused by any party. A party is 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 in issue.
42. At the same time, the interrogatories must be confined to facts which are relevant to the matters in question in the suit. Interrogatories which are really in nature of cross-examination cannot be allowed.
43. While considering the question for leave to deliver interrogatories, the court has to consider whether the interrogatories submitted are necessary either for disposing fairly of the suit or for saving costs.
44. No doubt, it is true that every party to a suit is entitled to know the nature of his opponent's case so that he may know before hand what case he has to meet at the hearing. The nature of a plaintiff's case is disclosed in his plaint. The nature of the defendant's case is disclosed in his written statement. If the plaint and written statement would sufficiently disclose the nature of the respective parties case, then the party may not be permitted to administer the interrogatories in writing to the other through the court.
45. The interrogatories shall have reasonably close connection with the matters in question. The second proviso of Order 11, Rule 1 clearly would state that irrelevant interrogatories which do not relate to the issue and matters in question in the suit shall be deemed to be irrelevant. Even it could be said that those questions are admissible in the course of cross-examination. However, if it is noticed that the interrogatories do not have any connection with the issue or the matter in question in the suit, it shall not be permitted, since they are deemed to be irrelevant.
46. The court while dealing with the application with reference to the discovery of interrogatories has to necessarily take into the provisions of Order 11, Rule 6, C.P.C. Order 11, Rule 6 is as follows:
Objections to interrogatories by answer: Any objection to answering any interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit, or that the matters inquired into are not sufficiently material at that stage (or on the ground of privilege or on any other ground), may be taken in the affidavit in answer.
47. A perusal of this provision would clearly indicate the duty on the part of the court to find out whether the interrogatories would be relevant and whether they are objectionable as they would be scandalous or not exhibiting bona fide.
48. In the present case, as I indicated earlier, there is no discussion in the impugned order as to how the said 17 questions contained in the interrogatories can be said to relate to the facts that exclusively constitute the evidence of the plaintiff's case and to the matters in question. It is also noticed that there is no reference in the impugned order with regard to the objection raised by the petitioner, the defendant that the interrogatories are scandalous, irrelevant and mala fide and as such, these objections have not been dealt with by the trial court in the impugned order.
49. In this context, it is to be reiterated that the only issue framed in this case as early as 23.1.1991 by the trial court is, whether the plaintiff would be entitled to damages?
50. It is the consistent case of the defendant that though the property is in the name of the plaintiff Govindasamy Reddiar, he is only a name lender, but the property was actually purchased out of the money earned by Thilagavathi and Nanchil Kumaran, the defendant, Even according to the plaintiff, towards the improvement made by the defendant to the suit property, he sent Rs. 45,000 to him. It is the case of the defendant that he paid Rs. 70,000 for the purchase of the suit property which is 2/3 rd of the sale consideration.
51. It is also appropriate to notice, in this connection, that the defendant filed another suit for permanent injunction in the year 1987 and the interim injunction is still in force. These suits are to be tried together. In such a situation, we have to see whether these interrogatories would serve any purpose.
52. The reading of the interrogatories, as detailed earlier, would appear that these are the questions in cross-examination. Most of the questions would relate to the statement made by the defendant before the High Court or before the Department. When the stand of the defendant is very clear in the written statement that though the suit property is in the name of the plaintiff, he has got a share in it, as he also paid money towards sale consideration, the serving interrogatories and getting answers would not serve any purpose.
53. Moreover, I have perused all the interrogatories carefully. I have noticed that some of the interrogatories are fishing in nature and some of them are too cumbersome and oppressive. Some of the other interrogatories may be objected on the ground that the same are scandalous or irrelevant or they do not exhibit bona fide for the purpose of the suit. As a matter of fact, the question numbers 11, 12, 13, 16 and 17 in interrogatories would indicate that the plaintiff wanted to impute allegation through these questions that the defendant had filed a false income-tax return with reference to his income and a false statement with reference to his assets before the higher authorities of the Government.
54. Further, other questions also would not relate to any matters in question, as they have no close connection with the issue framed in this case. Even if these questions are answered, the proceedings in the present suit would not be minimised, as the connected other suits have to be tried along with this suit.
55. Under these circumstances, permitting the interrogatories and asking the defendant to answer the interrogatories in order to dispose of the suit would definitely affect the right of the defendant to establish his case as put forth in his written statement by giving oral and documentary evidence on his behalf before the court. Therefore, the order which would affect the right of the defendant the petitioner herein, would certainly suffer from the infirmity, which is liable to be set aside.
56. However', this Court has to face another hurdle for invoking revisional jurisdiction under Section 115, C.P.C. As it is pointed out by the learned Counsel for the plaintiff, the respondent herein, as the order of the court below will not fall within the category of a 'case decided' as per Section 115 of the Code, it is not permissible for this Court to exercise revisional jurisdiction.
57. The counsel for both the parties would cite a cart-load of authority was expressing views on either way regarding maintainability of the revision.
58. Before referring to those decisions, let us now look into the provision of Section 115, C.P.C. "115. Revision: (1) The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears--
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:
Provided that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where--
(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto. Explanation: In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.
59. While pointing out the restrictions put on this Court for invoking Section 115, C.P.C., the learned Counsel for the respondent would refer about the select committee Report in which the details have been given as to why Section 115, C.P.C. has been retained when the similar remedy provided by Article 227 of the Constitution. The report is as follows:
By Clause 45 of the Bill, Section 115 of the Code was proposed to be omitted. The question whether it is at all necessary to retain Section 115 was carefully considered by the Committee. The Law Commission has expressed the view that, in view of Article 227 of the Constitution, Section 115 of the Code is no longer necessary. The committee, however, feel that the remedy provided by Article 227 of the Constitution is likely to cause more delay and involve more expenditure. In remedy provided in Section 115 is on the other hand, cheap and easy. The committee, therefore, feel that Section 115, which serves a useful purpose, need not be altogether omitted particularly on the ground that an alternative remedy is available under Article 227 of the Constitution.
The committee, however, feel that an addition to the restrictions contained in Section 115, an overall restriction on the scope of applications for revision against interlocutory orders should be imposed. Having regard to the recommendations made by the Law Commission in its Fourteenth and Twenty-seventh Reports, the Committee recommend that Section 115 of the Code should be retained subject to the modifications contained therein. The committee feel that the expression "case decided" should be defined so that the doubt as to whether Section 115 applies to an interlocutory order may be set at rest. Accordingly, the committee have added a proviso and an Explanation to Section 115.
60. He would also cite authorities to show that even though the impugned order does not reflect reasonings, it would not attract the condition so as to invoke the revisional jurisdiction under Section 115, C.P.C. The authorities are given below:
(1) Maheshwari Oil Mill v. Girjanath Durga Saran . (2) Ashok Kumar v. Dalmia Institute of Scientific and Industrial Research A.I.R. 1986 OH. 42. (3) The Land Acquisition Officer-cum-Revenue Divisional Officer, Tirunelveli v. Swaminatha Mudaliar (1998)1 M.L.J. 459. (4) Chennichi alias Perikkalv. Srinivasan Chettiar (1970)1 M.L.J. 234. (5) Baldevadas v. Filmstan Distributors . (6) State of Punjab v. R.P. Kapoor . (7) Rajasthan Golden Transport Company (P) Ltd. v. Avon F.I. Private Ltd. . (8) Venkateswara Rao v. K. Nagamma A.I.R. 1972 Mys. 254.
61. On the other hand, the learned Counsel for the petitioner would cite other set of authorities to establish that the present case would certainly fall within the parameters contained in Section 115 of C.P.C., in the light of the explanation contained in the said section. The authorities are as follows:
(1) S.S. Khanna v. F.J. Dillon . (2) Tata Iron and Steel Company v. Rajarishi Exports A.I.R. 1978 On. 179. (3) Delhi Vanasapati Syndicate v. K.C. Chawala . (4) Ponnusamy v. Salem Vaiyappamalai Jangamar Sangam . (5) Bhakta Charan Mallik v. Nataorar Mallik . (6) N. Krishnamoorthy v. N.M.A.R.H. Chettiar . (7) Media Anasuyamma v. Choppela Lakshmamma . (8) Joginder Pal v. Raj-Rani . (9) Michael Mascarenhas v. John Mascarenhas . (10) Sudha v. Manmohan . (11) V.P. Padmanabhan Nair v. Grasim Industries, Mavoor .
62. Off going through all the decisions cited supra, it has become clear that the principles relating to invoking of the revisional jurisdiction under Section 115, C.P.C. is well-settled.
63. The section consists of two parts, the first, prescribes the conditions in which jurisdiction of the High Court arises, that is, there is a case decided by a subordinate court in which no appeal lies to the High Court, and the second, sets out the circumstances in which the jurisdiction may be exercised. But the power of the High Court is exercisable in respect of "any case which has been decided.
64. According to the counsel for the respondent the impugned order would not mean that the case, that is, suit has been finally decided and therefore, the revision would not lie.
65. In the words of the Supreme Court, to interpret the expression "case", as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result, in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice.
66. The expression "case" is not limited in its import to the entirety of the matter in dispute in an action. The expression case" is a word of comprehensive import. It includes a civil proceeding and is not restricted by anything contained in Section 11, C.P.C. to the entirety of the proceedings in a civil court.
67. The purpose of Section 115, C.P.C. is to remove jurisdictional errors from the record of cases so as to arrive at a "true adjudication" of the rights or obligations of the parties in the controversy. If there was no such true adjudication, it would amount to a case decided and could be interfered with under Section 115, C.P.C.
68. It is also clear from the above decisions that "a case which has been decided' includes interlocutory orders passed in the course of a suit which affect the substantial right of parties. If the subordinate court fails to exercise jurisdiction vested in it or exercises jurisdiction not vested in it or jurisdiction is exercised illegally or with material irregularity, a revision under Section 115, C.P.C. will lie to the High Court challenging the order of the subordinate court. It shall also be consideration of the High Court that if the impugned order is allowed to stand, it would occasion failure of justice or cause irreparable injury to the party against whom it is made and if no appeal lies against such an order, a revision is perfectly maintainable.
69. A complete and exhaustive definition of case is not possible, It is something wider than suit, but at the same time it is not so wide as to include each and every order passed during the trial of a suit or a proceeding. It is, however, no longer possible to claim that a case decided could relate only to main suit and not any other proceedings between the initiation of the suit and its final adjudication.
70. From the inception to the final disposal of the suit, certain proceedings may crop-up and they have to be decided in such proceedings. If in such proceedings, some right or obligation of the parties in controversy gets decided, it would amount to case decided. The right on obligation need not necessarily have a nexus to the main lis. Very many rights and obligations do crop-up and they have foundations both in substantive law as well as in procedural law. If they get decided by such interlocutory orders, they are certainly revisable.
71. The amended Section 115, C.P.C. reveals that its scope has been amplified with the amendment introduced in the year 1976. Thus, the expression "case decided' has received a liberal approach and taken in its fold any interlocutory order made or any order deciding an issue in the course of suit or other proceedings. But, there cannot be a strait jacket formula as to when an interlocutory order may amount to a case decided.
72. The exercise of the revisionary power of the High Court under Section 115 of the Code of Civil Procedure is purely discretionary. This Court will not take a technical view and necessarily interfere in every case, where an order is wrong and even improper. The revisional jurisdiction is intended to secure and subserve the ends of justice and not to deny or defeat it. If no interference in a particular case would result in hard ship or injustice to a party, the High Court would be justified in refusing to interfere in the order impugned by the exercise of its revisional jurisdiction even in the revision juridiction even in the revision challenging the interlocutory order passed during the pendency of the proceedings.
73. Quoting all the judgments on this point, Hon'ble Thangamani, L (as he then was) in Sambandam v. Guru Chandrasekaran (1996)1 M.L.J. 43, while touching upon the point, would observe as follows:
It is well-known that from the date of institution of the suit or proceedings or until a conclusion by the court, several orders are made from time to time. Some may be erroneous orders and even may smack of errors of jurisdiction. But all interlocutory orders as the Supreme Court pointed out cannot be taken to be a 'case decided' within the meaning of Section 115 of the Code. A line has to be drawn between two types of orders although both of them are made during the pendency of the suit or proceedings. It is to be noticed whether a particular order is an adjudication by the trial court deciding for the purpose of a suit or proceedings some right or obligation of the parties in controversy or whether it is an order which is not of that kind.
74. Keeping in view of the command, as stated above, and on going through the entire records of the case including the order impugned, I am of the considered view that by the order impugned, the lower court decided the right of the plaintiff to serve the interrogatories on the defendant, the petitioner herein, which are not only irrelevant, which do not satisfy the requirements of Order 11, Rule 1, but also some of the interrogatories would not exhibit bona fide, which could be a valid objection that could be raised under Order 1, Rule 6 of C.P.C. thereby affecting the right of the defendant.
75. Moreover, as per the orders of the District Court in transfer application, the present suit has to be tried along with the other connected suits. In Transfer Petition No. 94 of 1991, the learned District Judge, Chengalpattu by the order dated 18.2.1992 transferred the suit in O.S.No. 1537 of 1987 on the file of the Principal District Munsif, Poonamallee to the file of sub judge, Poonamallee, of being tried with O.S.No. 128 of 1989, as both are connected matters. In Transfer Petition No. 95 of 1991, another suit in O.S.No. 2408 of 1990 on the file of Additional District Munsif, Poonamallee was also directed to be transferred by the order of the District Court dated 20.8.1991 to the file of Subordinate Judge, Poonamallee, for being tried along with O.S.No. 128 of 1989.
76. In these circumstances, under the garb of minimising the trial proceedings and to cut short the period of trial, the lower court cannot pass the impugned order under Order 11, Rule 1, C.P.C. so as to affect the right of the defendant to have the full-fledged trial of not only the present case, but also the connected cases as ordered by the learned District Judge, Chengalpattu.
77. As popularly said, justice is not only to be done, but also seem to be done. In the light of this maxim, the trial court shall have to give full opportunity to both parties by having a joint trial in all these suit. If this is not done, it would amount to stifling the required procedure under law.
78. In view of what is stated above, the impugned order does suffer from grave infirmity and illegality, which would certainly attract Section 115, C.P.C. and which would warrant the interference by this Court, as this Court feels that if the order impugned is allowed to stand, it would be a great injustice to the petitioner/defendant in the present case, who is the plaintiff in connected suits and so, the impugned order is set aside. The lower court is directed to proceed with the trial in all the connected cases and dispose of the same as expeditiously as possible.
79. With the above observation, the revision is allowed with costs. Consequently, C.M.P. No. 126 of 1986 is closed.