Kerala High Court
K.Sivasankara Menon vs T.Ramakrishnan on 22 February, 2021
Author: T.V.Anilkumar
Bench: T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942
OP(C).No.1160 OF 2020
AGAINST THE ORDER IN IA 915/2018 IN OS 482/2005 OF MUNSIFF
COURT, OTTAPPALAM
PETITIONER/PETITIONER:
K.SIVASANKARA MENON
AGED 59 YEARS
S/O.K.RUGMINI AMMA, 'SIVASAKTHI', VANIYAMKULAM
AMSOM, PULACHITRA DESOM, OTTAPALAM TALUK,
PALAKKAD DISTRICT.
BY ADV. SRI.SANTHEEP ANKARATH
RESPONDENT/RESPONDENT:
T.RAMAKRISHNAN
AGED 52 YEARS
S/O.KUNJILAKSHMI AMMA, THOPPIL, SREEKRISHNAPURAM
AMSOM DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT,
PIN-679 513.
BY ADV. SRI.K.RAVI (PARIYARATH)
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
22.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C)No.1160/2020
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Dated this the 22nd day of February, 2021
J U D G M E N T
This original petition is filed by the plaintiff in O.S.No.482/2005 on the file of Munsiff's court, Ottappalam. He is a building contractor engaged by the defendant for construction of a house in the property of the latter. The suit was filed for realisation of value of work done by the plaintiff for the defendant.
2. In the course of the proceeding, at the instance of the petitioner/plaintiff an Advocate Commissioner was deputed to locate the items of work executed by him in the property. The Commissioner reported that he was not able to locate the water storage and septic tank alleged to have been constructed by the plaintiff in the building. The petitioner therefore filed I.A.No.915/2018 before the court below seeking leave to deliver two interrogatories and require O.P.(C)No.1160/2020 :-3-:
the defendant to point out whether the building consisted of a septic tank and a ferro cement tank and if so, the places where they existed.
3. The defendant objected to grant leave contending that the interrogatories have no relevance as they are beyond the scope of the suit. Accepting the objection, I.A.No.915/2018 was dismissed. The legality of Ext.P6 order dated 25.05.2020 is challenged in this original petition.
4. I heard the learned counsel for the petitioner as well as the respondent.
5. Looking at the averments in the plaint, there is no definite contention raised by the petitioner to the effect that he ever constructed septic and ferro cement tanks for the defendant. There is only a general statement that there are certain additional works also done by him besides those specifically mentioned in the plaint. After hearing the learned counsel appearing on both O.P.(C)No.1160/2020 :-4-:
sides, I am of the opinion that in the absence of a specific allegation or averment in the plaint that the plaintiff constructed septic and ferro cement tanks for the defendant, he is not entitled to seek leave to deliver interrogatories regarding the construction of tanks or their locations.
6. Under Order 11 Rule 1 of CPC, interrogatories cannot be insisted to be delivered in respect of facts which are not relevant for decision of the suit. Relevancy to a great extent depends on the facts pleaded by party. The facts as to the construction of tanks and its location, may be probably relevant during the cross examination of the petitioner in the course of the trial. But that does not, however, justify plea for leave to deliver interrogatories in all circumstances irrespective of the pleadings of the parties. This appears to be the legal spirit contained in Second proviso Order 1 Rule 1 of CPC.
O.P.(C)No.1160/2020
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7. The learned counsel for the petitioner contended that if leave to deliver interrogatories is refused, he will be deprived of the opportunity to prove the construction of the tanks in question. I do not consider that the petitioner would be prejudiced by dismissal of I.A.No.915/2018, if he chooses to apply for necessary amendment to the plaint seeking to incorporate relevant facts, if law so permits. For the reasons aforesaid, I am not inclined to interfere with the Ext.P6 order.
In the result, original petition fails and it is dismissed. This dismissal will not, however, preclude the petitioner from seeking to amend the plaint in accordance with law and seeking a fresh leave for delivery of interrogatories.
All pending interlocutory applications are closed.
Sd/-
T.V.ANILKUMAR JUDGE ami/ O.P.(C)No.1160/2020 :-6-:
APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF PLAINT DATED 19.12.2005 IN OS NO.482/2005 ON THE FILE OF THE MUNSIFF COURT, OTTAPALAM.
EXHIBIT P2 TRUE COPY OF WRITTEN STATEMENT DATED 25.06.2006 IN OS NO.482/2005 ON THE FILE OF THE MUNSIFF COURT, OTTAPALAM.
EXHIBIT P3 TRUE COPY OF REPORT DATED 15.06.2012 IN OS NO.482/2005 FILED BY ADVOCATE COMMISSIONER ALONG WITH REPORT AND PLAN OF THE ASSISTANT ENGINEER.
EXHIBIT P4 TRUE COPY OF IA NO.915/2018 DATED 26.03.2018 IN OS NO.482/2005 ON THE FILE OF THE MUNSIFF COURT, OTTAPALAM. EXHIBIT P5 TRUE COPY OF COUNTER DATED 26.03.2018 IN IA NO.915/2018 IN OS NO.482/2005 ON THE FILE OF THE MUNSIFF COURT, OTTAPALAM. EXHIBIT P6 TRUE COPY OF ORDER DATED 25.05.2020 IN IA NO.915/2018 IN OS NO.482/2005 PASSED BY THE MUNSIFF COURT, OTTAPALAM.