Madras High Court
K.Shanmuavel Mudaliar vs The State Of Tamil Nadu on 8 February, 2021
CRP(PD).Nos.1988 and 1997 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
[ORDERS RESERVED ON : 07.12.2020]
[ORDERS PRONOUNCED ON : 08.02.2021]
CORAM
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
CRP (PD).No.1988 of 2020 and C.M.P.No.12341 of 2020
and
C.R.P (PD).No.1997 of 2020 and C.M.P.No.12399 of 2020
K.Shanmuavel Mudaliar ...Petitioner in C.R.P(PD)No.1988 of 2020
1. The Commissioner,
Hindu Religious & Charitable Endowments
Department, Uthamar Gandhi Salai,
Nungambakkam, Chennai - 600 034.
2. The Joint Commissioner,
Hindu Religious & Charitable Endowments
Department, Uthamar Gandhi Salai,
Nungambakkam, Chennai - 600 034.
...Petitioner in C.R.P.(PD)No.1997 of 2020
.. Vs ..
1. The State of Tamil Nadu,
Rep.by the Secretary to Government,
Tamil Nadu Development & Religious Endowment
Information Development, Fort St.George,
Chennai - 600 009.
2. The Commissioner,
Hindu Religious & Charitable Endowment
Administration Department,
Nungambakkam,
Chennai - 600 034.
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CRP(PD).Nos.1988 and 1997 of 2020
3. The Joint Commissioner,
Hindu Religious & Charitable Endowment
Administration Department,
Nungambakkam,
Chennai - 600 034. ...Respondents in C.R.P(PD)No.1988 of 2020
1. K.Shanmugavel Mudaliar,
2. The State of Tamil Nadu,
Rep.by the Secretary to Government
Tamil Development and Religious Endowment,
Information Department, Fort St.George,
Chennai - 600 009. ...Respondents in C.R.P(PD)No.1997 of 2020
PRAYER in C.R.P(PD)No.1988 of 2020: Petition filed under Article 227 of
Constitution of India, to set aside the fair and decretal order dated
10.03.2020 in I.A.No.1188 of 2019 in O.S.No.118 of 2009 on the file of the
Additional District Munsif Court, Alandur.
PRAYER in C.R.P(PD)No.1997 of 2020: Petition filed under Article 227 of
Constitution of India, to set aside the fair and decretal order dated
07.02.2020 made in I.A.No.1242 of 2019 in O.S.No.118 of 2009 on the file of
the Hon'ble Additional District Munsif, Alandur.
C.R.P(PD)No.1988 of 2020
For Petitioner : Mr.I.Inian
For Mr.Saikrishnan
For Respondents : Mr.Y.T.Aravind Gosh
Special Government Pleader
C.R.P.(PD)No.1997 of 2020
For Petitioner : Mr.Y.T.Aravind Gosh
Special Government Pleader
For R1 : Mr.Saikrishnan
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CRP(PD).Nos.1988 and 1997 of 2020
ORDER
C.R.P.(PD)No.1988 of 2020 has been filed by the petitioner/plaintiff. While, C.R.P.(PD)No.1997 of 2020 has been filed by the Commissioner, HR&CE Department who is the defendant in the suit.
2. For the sake of convenience the parties are referred to as per ranking in the suit.
3. C.R.P.No.1988 of 2020:-
The brief facts leading to the filing of the C.RP are as under:-
(i) The petitioner filed the suit in O.S.No.118 of 2009 praying for a declaration that the plaintiff temple situated in residential grama natham (village site) in S.No.210/2, private land is not coming under the purview of the HR&CE Act and for permanent injunction restraining the 3rd respondent and their subordinates from conducting any enquiry until the character of the institution is decided and not to interfere with the management and administration of the Arulmigu Agastheeswarar Temple and allied temples by the plaintiff as the Managing Hereditary Trustee and for other reliefs.
(ii) According to plaint, the temple is situated in the private property and the same is private temple of which the petitioner has been recognized to be the Hereditary Trustee by the HR&CE department itself. The temple is a private endowment and not comes within the jurisdiction of the HR&CE. Since proceedings were initiated by the HR&CE Department without jurisdiction, the 3/26 https://www.mhc.tn.gov.in/judis/ CRP(PD).Nos.1988 and 1997 of 2020 suit appears to be filed.
(iii) Pursuant to the G.O.(Ms)No.150 dated 22.09.2000 which mandates for obtaining of No Objection Certificate for registration of documents of temples managed by Hereditary Trustee, the petitioner had made an application seeking for NOC for registration of leases and for sale of surplus unwanted lands to generate revenue for the day to day maintenance and upkeep of the temple and such application was rejected by order dated 25.10.2004 of the 2nd respondent herein and challenging the same the petitioner preferred W.P.No.34061 of 2004 before this Court. This Court was pleased to dismiss the W.P.No.34061 of 2004 by order dated 24.11.2004 observing that the petitioner could seek the alternate remedy by way of revision before the State Government.
(iv) Accordingly, the petitioner preferred a revision before the State Government which came to be dismissed by order dated 07.11.2008. Though the petitioner preferred W.P.No.28398 of 2008 before this Court as against the said order, on advice the said W.P was withdrawn on 21.01.2009 as the petitioner was advised to challenge the said order dated 07.11.2008 of the 1st respondent by way of filing of a suit. Thereafter the suit in O.S.No.118 of 2009 came to be filed on 04.03.2009 with the first prayer viz., "To declare the order dated 07.11.2008 passed by the 1st defendant as null and void and not binding on the plaintiff in pursuance of the G.O.Ms.No.139 dated 25.07.2007. 4/26 https://www.mhc.tn.gov.in/judis/ CRP(PD).Nos.1988 and 1997 of 2020
(v) By the said G.O.Ms.No.139 dated 25.07.2007 the State Government had revoked the G.O.Ms.No.150 dated 22.09.2000 and as such the very foundation of the order dated 07.11.2008 was not existing as on that date and hence such a prayer was sought for in the suit. However, the trial Court objected to the maintainability of such a prayer and passed an order dated 19.03.2009 returning the plaint and in view of the legal position that the earlier G.O requiring NOC had been withdrawn, the plaintiff deleted the said prayer and re-presented the suit as urgent interim orders were required to be pressed for and the suit was thereafter taken on file.
(vi) The suit came to be decree exparte on 05.11.2009 as the defendants did not choose to contest the suit. In the meantime, the State Government had brought an amendment to the Registration Act by way of the Tamil Nadu Act 2 of 2009 thereby introducing Section 22-A bringing in the effect of the G.O.Ms.No.150 dated 22.09.2000 in the statute book which came into effect from 05.02.2009 onwards.
(vii) Thereafter the defendants filed application to set aside the ex- parte decree in the suit and the matters ended up in C.R.P.No.1123 of 2014 before this Court wherein orders were passed on 19.02.2019 by which the exparte decree was set aside and the trial Court was directed to dispose of the suit expeditiously and preferably within a period of six months. 5/26 https://www.mhc.tn.gov.in/judis/ CRP(PD).Nos.1988 and 1997 of 2020
(viii)As against the same, the petitioner preferred Civil Appeal No.6237 of 2019 before the Hon'ble Supreme Court and by order dated 09.08.2019, orders were passed setting aside the ex-parte decree dated 05.11.2009 and directing the suit to be disposed of within six months.
(ix) Thereafter the petitioner filed I.A.No.1188 of 2019 praying to amend the plaint by including the prayer "for a declaration declaring G.O.Ms.No.371 dated 07.11.2008 passed by the 1st defendant under Section 114 of the HR&CE as null & void, not binding on the plaintiff and grama natham property never vested with the Government". The necessity for the amendment was because of the fact that the Registration Act had been amended by virtue of the TN Act 2 of 2009 requiring the obtaining of NOC from the competent authority for the registration of documents relating to temple lands thereby reviving the order dated 07.11.2008 and the petitioner's contention that in so far as the plaintiff temple lands are concerned that they do not fall under the ambit and purview of the same needs to be gone into by the Civil Court.
4. The petitioner also filed I.A.No.1242 of 2019 under Order 11 Rule 2 C.P.C asking for furnish of information by way of interrogatories, as mentioned as A to O in the petition and the same was allowed. Aggrieved against the said order the defendant has filed C.R.P 1997 of 2020 and the plaintiff against the order of rejection of amendment of plaint in petition 6/26 https://www.mhc.tn.gov.in/judis/ CRP(PD).Nos.1988 and 1997 of 2020 I.A.No.1188 of 2019 has preferred C.R.P.No.1988 of 2020.
5. Heard both sides.
6. After hearing both sides and also perusing the documents filed in the typed set of papers regarding G.O.Ms.No.150/2020, G.O.Ms.No.139/2007, G.O.Ms.No.371/2008 and Amendment Act 2/2009 to the Registration Act 1908 and earlier order passed by the High Court in C.R.P.No.1123 of 2014 dated 19.02.2019, I find that
(i) The subject matter of challenge in that Writ Petition was the order dated 25.10.2004 of the second respondent herein, as against which the petitioner was directed to avail the revisional remedy before the Government. Accordingly, the petitioner preferred a revision before the State Government and the same was dismissed by order dated 07.11.2008. Though the petitioner preferred W.P.No.28398 of 2008 before this Court challenging the order dated 07.11.2008, the said Writ Petition was withdrawn on advice and thereafter the suit in O.S.No.118 of 2009 was filed on 04.03.2009, since such a suit was very much maintainable and within the jurisdiction of the Civil Court.
(ii) When the suit prayer as regards the order in G.O.Ms.No.371 dated 07.11.2008 of the State Government passed by the 1st respondent was sought to be deleted by the trial Court, the G.O.Ms.No.150 dated 22.09.2000 which was the foundation and the basis for the orders dated 25.10.2004 of 7/26 https://www.mhc.tn.gov.in/judis/ CRP(PD).Nos.1988 and 1997 of 2020 the second respondent and 07.11.2008 of the 1st respondent had itself been revoked by the State Government vide G.O.Ms.No.139 dated 25.07.2007 issued by the Registration Department and in that view of the matter, the petitioner/plaintiff did not also have the necessity to press for that relief in view of the changed position of law by virtue of the subsequent G.O issued by the Government.
(iii) In view of the subsequent revocation of the G.O.Ms.No.150 dated 22.09.2000 that the very order dated 07.11.2008 cannot be sustained and put against the plaintiff.
(iv) Subsequently by amendment to the Registration Act, by virtue of the Tamil Nadu Act 2 of 2009 - Registration (Tamil Nadu Amendment) Act, 2008 which came into force from 05.02.2009 onwards that the effect of the G.O.Ms.No.150 dated 22.09.2000 was brought into the Act and as such the necessity for the petitioner/plaintiff to revive the prayer originally sought for in the plaint at the time of filing of the suit and deleted due to the objections raised at that time of filing of the suit coupled with the existing legal position as on that date.
(v) The suit in O.S.No.118 of 2009 itself stood decreed ex-parte when the petitioner/plaintiff came to know of the amendment brought in the statue. Subsequently when the suit came to revive pursuant to the subsequent orders passed in I.As and the order passed by this Court, the 8/26 https://www.mhc.tn.gov.in/judis/ CRP(PD).Nos.1988 and 1997 of 2020 necessity for the genuine and bonafide amendment having been felt, the application was filed seeking for amendment.
7. Hence, I find that due to the passing of G.O.Ms.No.371 dated 07.11.2008. Subsequently, G.O.Ms.No.150 dated 21.09.2000 and subsequently, yet another G.O.Ms.No.139 dated 25.07.2007 being passed that has resulted in amendment of the Tamil Nadu Act 2/2009. Now the plaintiff is seeking to restore the original prayer which he was deleted in view of the change of the amendment act as could be seen from the above G.O.s.
8. Furthermore, the original prayer is now sought to be restored as original prayer No.1. In other words, original prayer that was deleted is now sought to be restored as original prayer No.1.
9. The amendment sought for does not change the fundamental in nature of the suit and the cause of action is based on the 1st respondent's order dated 07.11.2008 remains the same and hence only by such amended prayer that the petitioner could seek effective and proper remedy as against the orders of the respondents.
10. Furthermore, this petition is also filed immediately after the orders passed by the Hon'ble Supreme Court on 09.08.2019 and hence I find that, in view of the subsequent events and developments by way of 3 G.Os and subsequent amendment to the Registration Act under the Tamil Nadu Act 9/26 https://www.mhc.tn.gov.in/judis/ CRP(PD).Nos.1988 and 1997 of 2020 2/2009. The plaintiff is now seeking for the relief which was originally shown as relief No.1. Subsequently, deleted at his own interest in view of the change of act and in view of subsequent in passing different G.Os and it is just and necessary for the petitioner to restore the original prayer.
11. Hence, this C.R.P is allowed. I.A.No.1188/2019 in O.S.No.118/09 before the learned Additional District Munsif, Alandur shall stand allowed and the trial Court is hereby directed to amend the plaint copy within a period of two weeks and to frame the additional issues thereto and to dispose of the suit within a stipulated time as directed by the Hon'ble Apex Court.
12. C.R.P.(PD)No.1997 of 2020:-
The defendants 2&3 are the revision petitioners herein.
13. In the very same suit, the plaintiff also filed an application in I.A.No.1242/2019 under Order 11 Rule 2 C.P.C for answering certain queries in the nature of inventory before deciding to settle the issues. The said application was allowed and hence, the defendants 2&3, the temple authorities HR&CE Department has preferred the revision.
14. In and by the said order dated 07.02.2020, the learned Additional District Munsif, Alandur has directed the HR&CE Department to answer certain queries A to O wherein the queries under A to M relates to appoint an advocate by the HR&CE Department in this case. While, remaining 10/26 https://www.mhc.tn.gov.in/judis/ CRP(PD).Nos.1988 and 1997 of 2020 are with regard to the nature of the suit property which was not specifically stated in the written statement filed by the HR&CE Department.
15. The learned Additional Government Pleader appearing for the Temple could contend that the queries under A to O are related to the Advocate appointed by the HR&CE Department is totally unwarranted.
16. I have perused the queries asked for Item No: A to M. This is with regard to the Advocate who was appointed by the HR&CE Department to conduct this case on behalf of the Department and certain queries are relating to whether the said counsel is a penal Advocate or whether any specific special assignment has been made in this case, as a special case to appear for and on behalf of the second defendant-HR&CE Department Commissioner.
17. The learned counsel for the respondent/plaintiff draw my attention to pleadings in another suit, viz.,O.S.No.478 of 2011 filed by the very same plaintiff against the HR&CE in respect of the very same suit property wherein a rival claim has been made by a certain people belongs to the same village for which the present counsel, appointed by HR&CE Department before the trial Court, has appeared and the said Interlocutory Application was dismissed and finally the suit was decreed in favour of the plaintiff herein.
18. Now that the learned counsel for the plaintiff could contend that the counsel Mr.A.S.Vijaya Raghavan who is now appointed by the Temple 11/26 https://www.mhc.tn.gov.in/judis/ CRP(PD).Nos.1988 and 1997 of 2020 Authorities is not a standing counsel for HR&CE Department Authority either in the Mofussil Court or in the High Court and also raised apprehension that when the very same Advocate has appeared for the rival party who has sought to implead in the suit filed by the very same plaintiff against the very defendant temple in respect of the same suit property was dismissed after contest and hence, only at the instance of the rival party, the HR&CE Commissioner has appointed the very same Advocate in this case, as a special assignment and hence he has filed complaint before the Bar counsel for Tamil Nadu and Pondicherry alleging professional misconduct against the advocate and the same is pending.
19. Heard the learned counsel for the respondent.
20. It remains to be stated that all is not well in engaging in Advocate who is appeared for the rival party against very same plaintiff in respect of the very same temple with respect to very same suit property and hence, this Court has asked the Government Pleader as to its stand to get instruction from the revision petitioner/defendant whether they are planned to continue the very same Advocate on behalf of the temple before the trial Court.
21. The Additional Government Pleader (HR&CE) filed a memo along with Temple Authority letter that they will change their counsel before the lower Court in the case. The memo is recorded.
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22. In view of the said statement I am not proceed to deal with the enquiries A to M. With regard to the queries from N to O, I find that they are relating the nature of the land and nature of the temple which is conspicuously absent in the written statement.
23. The learned Additional Government Pleader of the revision petitioner could contend that the same is subject for cross-examination of the Departmental witness, however, I find that a bare denial in the cross- examination will not solve the lis between the parties.
24. Serving the interrogatories is governed by Order XI Rule 1 C.P.C, which reads thus:
" 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 the might be admissible on the oral cross-examination of a witnesses".
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https://www.mhc.tn.gov.in/judis/ CRP(PD).Nos.1988 and 1997 of 2020 Therefore, the above provision allows the interrogatories to be administered in writing by the plaintiff or by the defendant with the leave of the Court, to the opposite party or one or more of them in any matter relating to a suit.
After settlement of issues, a party to the suit may require information from his adversary as to the facts or as to documents in possession or power of such party relevant to the issue in the suit, and where the information as to facts is required, the party is allowed to put a series of questions to his adversary. These questions are called interrogatories. The Court would go through the proposed questions and if it considers them proper, will compel the other side to answer them on oath before trial. This is called discovery of facts.
25. Considering the scope of serving interrogatories in Sree Padmanabha Dasa Marthanda Varma V. Moolan Thirunal Rama Varma (1998) 1 Ker LT 113. It was observed that Interrogatories have very often a more useful function in action than is always appreciated. Though interrogatories are to be kept strictly within the legitimate limits within which they are permissible, the administering of interrogatories is definitely a step which is more often desirable than undesirable and to be encouraged rather 14/26 https://www.mhc.tn.gov.in/judis/ CRP(PD).Nos.1988 and 1997 of 2020 than to be discouraged because they frequently bring an action to an end at an earlier stage than otherwise would be the case, to the advantage of all parties concerned thereby shortening the life-span of a litigation.
26. The decision in W.S.Insulators of India V.Power Systems and Projects (1988) 1 Ker LT 297 of Court specifically goes into the question whether details of accounts can be called for from the rival party. It was found that:
where an account is claimed or question of account arises, the interrogatories as to details of accounts may be allowed. The Court at that stage is not concerned with the ultimate entitlement of the plaintiff for the amount. The defendants cannot justifiably take a defiant attitude or indifferent stand when it is bound by the provisions of law and the orders of Court. It may be that an answer bona fide given by a party may not be the correct or proper one on an elucidation of the issue in the light of the entirety of the evidence. In that way the Court may not be concerned at an interlocutory stage with the ultimate truthfulness or correctness of the answer. However, the defendant cannot, with impugnity, violate a direction to answer a question when the information is readily available with the defendant and the question is adjudicated by orders of Court as a relevant one to be answered by the defendant.15/26
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27. Smt.Sharada Dhir V.Ashok Kumar Mukhija, has reported in AIR 2003 Del 288, wherein it is held thus:
"Interrogatories cannot be disallowed merely because the party interrogating has other means of proving the facts in question. One of the important purpose of interrogatories is to obtain admission of material fact of a case. Under this rule the interrogatories may be served with the leave of the Court by one party to the other in a suit (1) to ascertain the nature of his opponent's case and material facts constituting it and (2) to support his own case by obtaining admissions or by impeaching or destroying his opponent's case. The interrogatories which do not relate to any matter in question involved in the suit, indeed, would be deemed irrelevant even though they might be admissible in oral cross-examination of the witnesses...".
28. A decision in Bhakta Charan Malik V.Nataorar Mallik, AIR 1991 Ori.319, wherein it is held thus:
"Obviously the purpose of this rule is to enable a party to require information from his 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 16/26 https://www.mhc.tn.gov.in/judis/ CRP(PD).Nos.1988 and 1997 of 2020 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 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.
29. P.Balan v.Central Bank of India,Calicut, AIR 2000 Ker.24 , wherein it is held thus:
"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 or for destroying the case 17/26 https://www.mhc.tn.gov.in/judis/ CRP(PD).Nos.1988 and 1997 of 2020 of the adversary. The answering of the interrogatories might save expenses and shorten the litigation by enabling party to obtain from the other side information as to material facts regarding the questions in dispute or issues raised or to obtain admission of facts which the plaintiff has to prove on any issue. Answering the interrogatories might often shorten the trial proceedings and save the time of the Court and parties besides saving expenses for summoning witnesses, documents and the like. As a general rule, therefore, interrogatories are to be allowed whenever the answer to them will serve either to help the party in proving his case or to destroying the case of the adversary. The power is not meant to be confined within narrow limits. It should be used liberally whenever it can shorten the litigation and serve the interest of justice.
Nevertheless, the power is to be exercised with care and caution so that it 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".
30. In a decision reported in 2015 1 Gauthati Law Reports 316 [Lombo Tayeng V.Muk Pertin], which reads as follows:-
"Interrogatories play a useful role in the adjudication of a suit and objective of administering 18/26 https://www.mhc.tn.gov.in/judis/ CRP(PD).Nos.1988 and 1997 of 2020 interrogatories is to obtain information from the other side for effectively pursuing one's case and broad and liberal view is to be taken when leave is sought for to serve interrogatories on the other side and Court must satisfy itself that the proposed interrogatories are relevant and germane to the issue involved in the lis".
31. (a) 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 or for destroying the case of the adversary. The answering of the interrogatories might save expenses and shorten the litigation by enabling a party to obtain from the other side information as to material facts regarding the questions in dispute or issues raised or to obtain admission of facts which the plaintiff has to prove on any issue.
(b) Answering the interrogatories might often shorten the trial proceedings and save the time of the Court and parties besides saving expenses for summoning witnesses, documents and Court and the like. As a general rule, therefore, interrogatories are to be allowed whenever the answer to them will serve either to help the party in proving his case or to destroying the case of.
32. (a) A plaint or a written statement may not sufficiently disclose the nature of parties to the case, and to make good the deficiency, either party can serve interrogatories in writing which, when answered, would enable the Court to decide the suit without probing into the questions elaborately in the light of oral and documentary evidence.
(b) The Courts have to approach the question in a broad perspective aimed at seeing whether the grant thereof will enable fair trial and would save 19/26 https://www.mhc.tn.gov.in/judis/ CRP(PD).Nos.1988 and 1997 of 2020 the cost of litigation to the parties.
(c) Of course, the possible objections specifically mentioned in Rule 6 of Order XI, C.P.C. also have to be considered. The interrogatories have to bear a reasonable close connection with the matters in question.
(d) A party is entitled to adminster interrogatories to his opponents to obtain admission from him with the object of facilitating proof of his case as also to save the costs which may otherwise be incurred in adducing evidence to prove the necessary facts.
33. ..Interrogatory means to ask questions or to make enquiry closely or thoroughly. The function of interrogatories is to enable a party to obtain from the opposite party admissions or evidence of material facts to be adduced at the trial or to appraise the strength or weakness of the case before the trial and saving costs. The right to administer interrogatories, however, is neither absolute nor unqualified. Every suit or action contemplates two sets of facts viz.(1) facta probanda (facts constituting party's case) and (2) facta probantia (facts constituting evidence). The party is entitled to know beforehand only "facta probanda" and "not facta probantia". The power to serve interrogatories should not be confined within narrow technical limits, but it must be exercised liberally so as to shorten the litigation and serve ends of justice. Interrogatories must be directed to facts relevant 'any matters in issue'.
34. "Material facts" are, all the facts which are essential to clothe the petition with complete cause of action. If the material facts are not pleaded, then it goes to the root of the case. But, all the material facts which may be relevant relate to any matter in issue, can be allowed to be administered by 20/26 https://www.mhc.tn.gov.in/judis/ CRP(PD).Nos.1988 and 1997 of 2020 interrogatories. The right is, thus, not confined to the 'fact directly in issue', but extends to all facts, existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue.
35. ...."facts in issue" as defined under Section 3 of the Indian Evidence Act, 1872, which means and includes any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows. Explanation to the definition says that whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue, is a fact in issue. Therefore, the expression 'facts in issue' means matters which are in dispute or which form subject of investigation.
36. The matters which are affirmed by one party to the suit and denied by another party, may be termed as facts in issue, and what facts are in issue in particular cases, is a question to be determined by the substantive law or in some cases by that branch of the law of procedure which regulates the law of pleadings, civil of criminal. Therefore, the Court has to decide how the parties are to convince the Court of the existence of that set of facts which would establish the existence of the right or liability which they alleged to exist.
37. The facts lie at the foundation of the law, for, 'Exfacto Jus Oritur' the law arises out of a fact. The law cannot take the effect unless the facts are known. Without knowing the facts, the Judge cannot know what law applies to determine the outcome of the proceedings before him. Ascertaining 21/26 https://www.mhc.tn.gov.in/judis/ CRP(PD).Nos.1988 and 1997 of 2020 existence or non-existence of the facts and then declaring the rights and liabilities of the parties by applying the relevant law, to these ascertained facts, are the two basic functions of the Judicial Officer adjudicating any judicial proceedings.
38. Answering the interrogatories which are now sought to be served on the defendant by the plaintiff, is not by itself a substantive evidence. Even if the plaintiff answers the interrogatories, still the burden is on the plaintiff to establish those interrogatories that may be answered by him, during the trial of the case.
39. The interrogatories which are now sought to be served, may not amount to facts constituting the evidence, those are the facts in issue constituting the plaintiff's case. Therefore, the plaintiff is entitled to know before hand, the facts in issue constituting the plaintiff's case. No doubt, the plaintiff's case must stand or fall on its own pleading and evidence. But, at the same time, when the defendants are disputing about the nature of land, the plaintiff is entitled to know in what manner, in what way. Therefore, in the opinion of this Court, the interrogatories now sought to be served on the defendant by the plaintiff is in the nature of facts in issue relevant for the purpose of deciding the suit. Under no stretch of imagination, it can be said that the interrogatories are in the nature of fishing enquiry. Since they are relevant for deciding the facts in issue.
40. It is evident that the questions in form of interrogatories relate to a very material and valid piece of evidence for a just decision of the case. In fact at a later date the silence on the part of the landlady might prove fatal to the case of the petitioner.
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41. From the above decisions, it is clear that interrogatories are relevant to the existence or non-existence of the facts directly in issue. Bearing the above principles in mind, it has to be seen whether interrogatories now sought to be served on the plaintiff are material facts which are relevant with regard to the material facts in issue.
42. At this juncture, I find that query No.n is a) "whether Grama Natham Survey No.210/2 property is coming within the meaning of order under Section 6 (17) of the HR&CE Department Act.
As regards, 'query N', I find that:
(a) the written statement is totally silent. However the entire suit namely the lis is around the very same issue in the absence of any denial order anything with respect in the written statement. I find that the inventory sought for by the plaintiff needs to be looked into and hence, the order passed by the trial Court calling upon the Department to furnish the information as available record in respect of 'N' alone is sustained.
(b) In view of the memo of undertaking filed by HR&CE Department through the learned Additional Government Pleader, to change the counsel before the trial Court.
(c) In respect of inventory of A to M has been set aside.
(b) The order passed by the trial Court in respect of 'O' shall stand set aside the I.A is partly dismissed in respect of inventory "O" alone.23/26
https://www.mhc.tn.gov.in/judis/ CRP(PD).Nos.1988 and 1997 of 2020
43. As I find the query No.1 is point for judicial adjudication and hence petition is hereby allowed to the limited extent of rejecting the relief in respect of the 'o'.
44.The undertaking given by the learned Additional Government Pleader that the said Advocate will not be engaged for conducting of the case is recorded and it is hereby also made clear that none of the advocates attached to his office be engaged for conducting of this case by the temple authorities in connection with this suit temple.
45. (i) In view of the memo of undertaking filed by the HR&CE Department through Advocate Government Pleader (CS) regarding that they will change the counsel before the Trial Court and hence the order passed by the trial Court in respect of inventory A to M has been set aside.
(ii) The order passed by the trial Court in respect of inventory 'O' shall stand set aside before the trial Court is partly stands dismissed in respect of inventory 'O' alone.
24/26 https://www.mhc.tn.gov.in/judis/ CRP(PD).Nos.1988 and 1997 of 2020
46. In fine, the inventory asked for by the plaintiff in the form of query 'A' to 'M' stands closed and in respect of 'O' the same is stands dismissed and the Department is hereby directed to furnish the information as per the records in respect of query No. 'N' alone.
47. In the result,
(i) C.R.P (PD)No.1997 of 2020 is partly allowed as indicated above. No costs. Consequently, connected C.M.P is closed.
(ii) C.R.P.(PD)No.1988 of 2020 is allowed and the order dated 10.03.2020 in I.A.No.1188 of 2019 in O.S.No.118 of 2009 on the file of the Additional District Munsif Court, Alandur is set aside. No costs. Consequently, connected C.M.P is closed.
08.02.2021
Internet :Yes
nvi
To
The Additional District Munsif Court, Alandur. 25/26 https://www.mhc.tn.gov.in/judis/ CRP(PD).Nos.1988 and 1997 of 2020 RMT.TEEKAA RAMAN, J.
nvi Order made in CRP (PD).No.1988 of 2020 and C.M.P.No.12341 of 2020 and C.R.P (PD).No.1997 of 2020 and C.M.P.No.12399 of 2020 08.02.2021 26/26 https://www.mhc.tn.gov.in/judis/