Rajasthan High Court - Jaipur
Sandeep Grover vs . Smt. Priyanka Batra on 31 October, 2015
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH ORDER Sandeep Grover Vs. Smt. Priyanka Batra (S.B. Civil Writ Petition No.12425/2015) Date of Order: October 31, 2015. PRESENT HON'BLE MR. JUSTICE ALOK SHARMA Mr. J. P. Goyal, Senior Advocate with Mr. Abhi Goyal, for the petitioner. Mr. Ashok Mehta, Senior Advocate with Mr. Devendra Sharma, for the respondent. BY THE COURT:
A challenge has been made to order dated 18-8-2015 passed by Additional District Judge No.2 Behror District Alwar dismissing the petitioner-defendant's (hereinafter `the defendant') application for interrogatories under Order 11 Rule 1 CPC.
The facts of the case are that the plaintiff-respondent (hereinafter `the plaintiff') filed a suit for specific performance of an agreement to sell claiming that it was evidenced from a receipt dated 24-11-2001 in respect of agricultural land in Khasra No.179 to 181, 186 and 197 situate in village Jankisinghpura Sub Tehsil Neemrana, Tehsil Behror District Alwar admeasuring 17 bighas entered in the khatedari of the defendant. It was averred that the defendant agreed to sell the aforesaid land in lieu of Rs.1.45 crores in pursuance whereof the amount receipted on 24-11-2001 passed on to the defendant. The receipt dated 24-11-2001 recorded the fact that remaining sale consideration of Rs. 25 lacs would be paid on or before 24-11-2004, whereupon sale-deed would be executed in respect of the suit land and got registered in favour of the plaintiff. The defendant having reneged on his obligation on receipt cum agreement to sell, the suit for specific performance was filed.
The suit was filed on 3-4-2008. On service of summons of the plaint on the defendant, he filed an application under Order 7 Rule 11 CPC on 3-5-2008, which was dismissed on 17-3-2011. Another application under Order 11 Rule 14 CPC was filed on 2-8-2008 by the defendant even prior to filing of the written statement, this was also dismissed. On 11-4-2011 an application under Section 151 CPC was filed by the defendant and dismissed on 23-1-2015. A revision petition was filed against the order dated 17-3-2011, which was also dismissed on 17-10-2011, by the court. The written statement finally came to be filed only on 17-10-2011, over three and half years subsequent to the plaintiff's suit for specific performance.
Subsequent to filing of written statement, another application under Order 11 Rule 14 CPC followed at the instance of the defendant on 19-1-2013, which was dismissed on 23-1-2015. The defendant then filed an application under Section 340 Cr.P.C. on 19-1-2013. Counsel for the parties are not in a position to give out the status of the said application. Thereafter on 17-7-2013 the defendant moved an application under Section 151 CPC and Section 37 of the Rajasthan Stamps Act which was dismissed on 23-1-2015. Another application by the defendant under Order 26 Rules 10, 11, 14 CPC read with Sections 45, 47 and 73 of the Evidence Act followed on 25-1-2014, which was dismissed on 23-1-2015. At this stage about six years had elapsed since the filing of the plaintiff's suit.
On 18-8-2015 the defendant fully drawing of the CPC filed another application under Order 11 Rule 1 CPC seeking interrogatories from the plaintiff on as many as 38 questions. This was dismissed by the trial court vide the impugned order dated 18-8-2015 noting that issues in the suit had already been framed on 7-2-2015 and the matter was pending for plaintiff's evidence since 13-3-2015. The plaintiff having failed to produce evidence for several months had been allowed one last opportunity for doing so on 4-8-2015 on pain of his evidence being closed. It was noted that pursuant to court's direction, on 4-8-2015 the plaintiff's two witnesses had come from Mumbai, and the application under Order 11 Rule 1 CPC seeking interrogatories was then belatedly filed quite evidently lacking bonafide only with the intent to delay the trial in the suit. Hence this petition.
Mr. J.P. Goyal, Senior Counsel appearing with Mr. Abhi Goyal for the defendant has submitted that the trial court has not addressed the application filed by the defendant on merits and therefore the impugned order dated 18-8-2015 is liable to be set aside solely on that ground. It has been submitted that the purpose of interrogatories is to minimise issues in the trial by ensuring that to the extent possible facts obtain on record and are not left evasive and uncertain to the extent possible. Thus it is the duty of that court to evaluate the merits of interrogatories and it ought to dismiss the application under Order 11 Rule 1 CPC peremptorily and out of hand on preliminary ground of alleged malafide, delay and for reason of issues having been framed. It was submitted that in the event the trial court was concerned with the factum of the plaintiff's two witnesses coming from Mumbai, the plaintiff could have been adequately compensated with costs. The legal right of the defendant under prescribed procedure could not have been given a short slight only on that count. Referring to Section 30 CPC it has been submitted that no time frame is provided for filing applications inter alia for interrogatories where the interest of justice so warrants as it does in the present case.
Mr. Ashok Mehta, Senior Counsel appearing with Mr. Devendra Sharma on behalf of the plaintiff has submitted that the question as to whether interrogatories should be allowed or not is a matter of discretion of the trial court. In the exercise of such discretion the trial court has to take into consideration the surrounding circumstances including the conduct of party seeking interrogatories from the opposite party. Mr. Ashok Mehta has submitted that the chronology of dates in the suit indicates that the defendant has all along sought to use salutary provisions of CPC only to obstruct the trial of the suit for specific performance by filing myriad applications, even before filing of the written statement. In the instant the written statement was filed by the defendant after about three and half years of the filing of the suit bringing to naught the intent of the parliament for expedited trial in civil suit which motivated various amendments to CPC in 1999 effective 2001. It has been submitted that even otherwise written statement having been filed on 17-10-2011, it was for the defendant to seek any interrogatories as advised forthwith. The defendant let pass about four years after filing of the written statement before his filing the application under Order 11 Rule 1 CPC as an afterthought after his strategy of obstructing the trial in the suit by filing different applications was failing with repeated dismissal thereof.
Mr. Ashok Mehta seeking to emphasis the intent of law that interrogatories be filed at the earliest has referred to Order 11 Rule 2 CPC which provides that on filing application for interrogatories, the same is to be decided within seven days of its filing and the opposite party would be obliged to submit answers on the interrogatories within ten days of the passing of the court's order. It was then submitted that the structure of Civil Procedure Code indicates that interrogatories have to be applied immediately following the filing of the written statement and prior to framing of issues. Senior Counsel submitted that while Order 7 CPC deals with the plaint, Order 8 thereof deals with written statement, set off and counter claim, Order 9 then deals with appearance of parties and consequences of non-appearance. Order 10 of CPC thereafter deals with examination of parties by the court. Next following is Order 11 CPC which deals with discovery and inspection. Order 12 CPC follows with admission, and Order 13 CPC with production, impounding and return of documents. Order 14 CPC deals with settlement of issues and ancillary matters. The orders under CPC are logically arranged and in the event the order of procedure set out under CPC was to be altered or left to the whims of the parties in suit, the already notorious delayed trials in civil suit would become impossible of completion in a reasonable time frame. It has been submitted that in this perspective of justice through vindication of legal rights within reasonable time, the trial court has rightly held that aside of defendant's obstructive conduct as evident from the record of the trial, the stage of filing the application under Order 11 Rule 1 CPC had been past with issues having been framed and therefore the defendant's application could not be allowed. It has also been submitted that interrogatories have to relate closely to the subject matter of the dispute between the parties to a suit and cannot be either prolix, vexatious, unreasonable or improper. Reference has been made to Ramrameshwari Devi Vs. Nirmala Devi [(2011)8 SCC 249] wherein the Hon'ble Supreme Court concerned with suffocating delays in civil litigation and suggesting ways to expedite trial in civil suit, in para 52B inter alia observed that the civil court should resort to discovery and production of documents and interrogatories at the earliest (Emphasis mine) according to the object of the Act. The submission is that the observations of the Hon'ble Supreme Court in the case of Ramrameshwari Devi (supra) buttresses the reasons and conclusions of the trial court in dismissing the defendant's application under Order 11 Rule 1 CPC for interrogatories filed subsequent to the framing of issues after a delay of four years of filing the written statement. Mr. Ashok Mehta further submitted that the trial court having thus correctly exercised its discretion reasonably this court in the exercise of its jurisdiction under Article 227 of the Constitution of India ought not to act as an appellate or revising court and interfere therewith. This court sitting on an interlocutory order of a civil court in the course of a trial only exercises superintending jurisdiction and hence should not interfere with the impugned order as it does not suffer from any shocking perversity, manifest injustice to the defendant and is not in excess of the jurisdiction of the trial court.
In rejoinder, Mr. J.P. Goyal, Senior Counsel has submitted that the Hon'ble Supreme Court and various High Courts, have not found any procedural anathema in allowing interrogatories even subsequent to the framing of issues. Mr. Goyal on a query would however fairly concede that the question as framed in this petition was not directly so before the Hon'ble Apex Court nor addressed from that perspective with reasoning buttressing the conclusion. Senior Counsel however emphatically submitted that the Hon'ble Apex Court and various High Courts having not felt obstructed in allowing interrogatories subsequent to framing of issues, the trial court erred in not so doing, misdirected itself in dismissing the defendant's Order 11 Rule 1 CPC application and hence its impugned order dated 18-8-2015 should be set aside. Reliance has been placed on the judgments in the case of Raj Narain Vs. Indira Nehru Gandhi (AIR 1972 SC 1302] and in the case of Maria Margarida Sequeria Fernandes Vs. Eramo Jack De Sequeria [2012(2) Civil Court Cases 344 (SC)].
Heard counsel for the parties and perused the impugned order passed by the trial court.
The scope of the superintending powers of this court under Article 227 of the Constitution of India in respect of interlocutory orders passed by the trial courts in the exercise of their discretionary powers is quite limited. Interference by this court is ordinarily confined to issues of jurisdiction of the trial court in passing the impugned orders or the impugned order being exfacie shockingly perverse or vitiated by misdirection in law leading to manifest injustice to the aggrieved party. Absent any of the aforesaid situations, the superintending jurisdiction of this Court under Article 227 of the Constitution of India cannot be exercised, as it is well settled that while exercising such power, this court does not act as an appellate court or even a revising court. It is also equally well settled that interlocutory orders of the trial court on miscellaneous applications are discretionary. The Apex Court has held that where discretionary orders are passed with sustainable reasons they ought not to be interfered with. And the trial court exercising its discretion in its impugned order has held that the defendant's application under Order 11 Rule 1 CPC could not be allowed both for reasons of being inadvertently delayed not bonafide, as also for the reason that it was subsequent to the framing of issues.
The contention of the Senior counsel appearing on behalf of the defendant that application for interrogatories filed even subsequent to framing of issues should be allowed is not tenable. The whole purpose of the interrogatories is to seek admission on matters in dispute such that issues can be accordingly framed minimising the disputes for adjudication and facilitating early disposal of the suit. The delays in trial of civil suits are notorious and so noticed by the Hon'ble Supreme Court in the case of Ramrameshwari Devi (supra), where as a curative measure it has inter alia been suggested that the trial court should resort to discovery and production of documents and interrogatories at the earliest (emphasis mine). It would be well to note that in the case at hand the written statement by the defendant was filed about 3 years of the filing of the plaint despite service of summons and interrogatories sought by the defendant after about four years thereafter on 18-8-2015, during which period the defendant actively pursued various other miscellaneous applications before the trial court in the suit in issue.
I find no force in the submission of Senior Counsel for the defendant that an application for interrogatories under Order 11 Rule 1 CPC should be allowed even after framing of issues, merely because such situation obtaining was not adversely commented upon by the Hon'ble Supreme Court in the case of Raj Narain Vs. Indira Nehru Gandh [AIR 1972 SC 1302]. It is well settled that every fact in a decision of the Supreme Court can not partake the character of a ratio decidendi with binding precedential value. For a binding ratio, the enunciation of law attributed to the Apex Court should have been specifically set out before the court, argued and conclusions arrived thereon on reasons recorded by the Apex Court. In the case of Fida Hussain Vs. Moradabad Development Aauthority [(2011)12 SCC 615] the Hon'ble Apex Court reiterated that only the principles of law that emanate from the reasoning in a judgment of the Hon'ble Supreme Court, having binding precedential value. In the aforesaid judgment relied upon by the counsel for the defendants, no ratio can be found that an application under Order 11 Rule 1 CPC can be filed subsequent to framing of issues, after an inordinate delay.
I also find no substance for the defendant on their reliance on the judgment in case of Maria Margarida Sequeria Fernandes Vs. Erasmo Jack de Sequeria [2012(2) Civil Court Cases 344 (SC)] to contend that Section 30 CPC would allow unrestricted any time access to an application under Order 11 Rule 1 CPC irrespective of the conduct of the applicant and the stage of the trial. The judgment in the case aforesaid is not a precedent or binding ratio on the question as to whether a belated and evidently not bonafide application filed about four years after filing of written statement be allowed.
The upshot of aforesaid discussion is that there is no good and cogent legal ground before this court to interfere with the impugned order dated 18-8-2015 dismissing defendant's application under Order 11 Rule 1 CPC. The impugned order suffers neither from any jurisdictional error nor from perversity or misdirection in law. The writ petition is without force and is dismissed.
As the suit for specific performance is pending since 2009, and the plaintiff's evidence is underway the trial court is directed to dispose it of within a period of one year from the presentation of certified copy of this order. For the purpose the trial court should fix its calendar for the trial of the suit as suggested by the Hon'ble Supreme Court in the case of Ramrameshwari Devi (supra). Further on adjournments sought during the trial the trial court to follow the observations of the Hon'ble Apex Court in the case Shiv Cotex Vs. Tirgun Auto Plast (P) Ltd. [(2011) 9 SCC 678], where the Hon'ble Supreme Court has held that adjournment should ordinarily be limited to three/ four times in a suit.
(Alok Sharma), J.
arn/ All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.