Bombay High Court
Sahebrao Pundlikrao Vidhale vs M/S Vimco Const. And Supp. Pvt. Ltd. Thr. ... on 14 December, 2018
Author: Manish Pitale
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 4854 OF 2017
Sahebrao Pundlikrao Vidhale
-Vs.-
M/s.Vimco Construction & Suppliers Pvt.Ltd. and others
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr.V.A.Kothalre, counsel for the petitioner.
Mr.Rohit Joshi, counsel for respondent Nos.1(i) to 1(iii).
CORAM : MANISH PITALE, J.
DATE : 14.12.2018.
By this writ petition, the petitioner (original plaintiff) has challenged order dated 12/06/2017 passed by the Court of 2nd Joint Civil Judge, Senior Division, Amravati (Trial Court), whereby application filed by the petitioner under Order XI Rule 1 of the Civil Procedure Code (CPC) for permission to file interrogatories, has been rejected.
2. The petitioner filed Special Civil Suit No.68 of 2006 against the respondents claiming specific performance of agreement dated 25/09/1997, which according to him, stood modified on 10/02/2004. The subject matter of the agreement was sale of agricultural land by respondent No.1- Company in favour of petitioner. It was prayed by the petitioner for grant of decree for specific performance or in the alternative the respondents be directed to pay amount of Rs.44,00,000/- with interest, in terms of the agreement as it stood modified on 10/02/2004.
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3. Original defendant No.1 was the Chairman of the Board of Directors of the said Company and defendant No.1-A was the Executive Director, while the other defendants were Directors of the company and respondent Nos.2 and 3 were two entities to whom the said land was subsequently sold by sale deed dated 11/11/2003. The Commissioner of the Amravati Municipal Corporation was also added as a defendant. During the pendency of the suit, the Chairman (original defendant No.1) died and his legal representatives were brought on record.
4. Original defendant No.1-A, Executive Director (respondent No.1-A herein) filed his written statement admitting the claim made by the petitioner in the aforesaid suit. In his written statement, respondent No.1-A referred to a document dated 26/03/2004, termed as a compromise deed, wherein the liability under the aforesaid agreement was allegedly taken over by the Chairman, original defendant No.1, in respect of the said agreement. During the course of the proceedings before the Trial Court, various documents stood exhibited, including a letter dated 15/01/2004, whereby respondent No.1-A resigned from the Board of Directors of respondent No.1-company with effect from 31/01/2004. The said letter was accepted by the Board of Directors on 23/01/2004 and the said document also stood exhibited.
5. Apart from other applications filed by the petitioner, an application was specifically filed on his behalf for KHUNTE ::: Uploaded on - 20/12/2018 ::: Downloaded on - 27/12/2018 07:54:20 ::: wp4854.17.odt 3/8 exhibiting the aforesaid document dated 26/03/2004 termed as a compromise deed, which had been referred in the written statement filed on behalf of respondent No.1-A. The said application was rejected by the Trial Court by order dated 17/04/2014. The petitioner then moved an application for securing presence of respondent No.1-A for testifying in the Court in terms of his reply treated as a written statement in the aforesaid suit. The said application was also rejected by order dated 14/10/2014 passed by the Trial Court. Thereafter, the petitioner again moved an application for grant of permission to exhibit the very same document dated 26/03/2004, which was rejected by the Trial Court, in view of the rejection of a similar application filed on behalf of the petitioner. As a consequence, the said document has not been exhibited before the Trial Court.
6. It has come on record that respondent No.1-A has admitted the claim of the petitioner in the suit and, therefore, he is not a contesting defendant before the Trial Court. The legal representatives of the deceased Chairman, (original defendant No.1) are the contesting defendants before the Trial Court.
7. In this backdrop, the petitioner moved the aforesaid application under Order XI Rule 1 of the CPC for grant of permission to file interrogatories to be answered by defendant No.1-A i.e. respondent No.1-A herein. As many as 14 interrogatories were stated in the said application. The contesting respondents, representing the predecessor, KHUNTE ::: Uploaded on - 20/12/2018 ::: Downloaded on - 27/12/2018 07:54:20 ::: wp4854.17.odt 4/8 Chairman of the company, filed their reply opposing the said application, pointing out that original defendant No.1-A had already admitted the entire claim of the petitioner and that the proposed interrogatories were absolutely unnecessary for decision of the suit and that the application deserved to be dismissed.
8. By the impugned order dated 12/06/2017, the Trial Court has rejected the application of the petitioner. It has been held that original defendant No.1-A has already admitted the claim of the petitioner and, therefore, he is not a contesting party and that the interrogatories pertain to documents that already stand exhibited and, therefore, there was no need for the petitioner to have filed the said interrogatories. Aggrieved by the same, the petitioner has approached this Court.
9. Mr. V.A.Kothale, learned counsel appearing for the petitioner, submits that the observations made by the Trial Court that interrogatories pertained to documents that were already exhibited is not correct because interrogatory pertaining to the compromise deed dated 26/02/2004 is relevant and that the said document is not an exhibited document. According to the learned counsel, this demonstrates the error committed by the Trial Court. It is further submitted that a perusal of the interrogatories would show that they pertained to relevant queries made to defendant No.1-A and that response to the same would assist in disposal of the suit by the Trial Court.
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10. On the other hand, Mr. Rohit Joshi, learned counsel appearing for the contesting defendant/legal representatives of respondent No.1 herein, submitted that original defendant No.1-A (respondent No.1-A herein) has already admitted the entire claim of the petitioner and, therefore, the interrogatories are irrelevant. It is submitted that when respondent No.1-A in the pleading itself has admitted the claim of the petitioner, there is no purpose in pursuing the interrogatories. It is further pointed out that Order XI Rule 1 of the CPC uses the words "opposite parties to whom such interrogatories can be addressed" and that in the facts and circumstances of the present case, respondent No.1-A cannot be said to be an opposite party. On this basis, it is submitted that the impugned order passed by the Trial Court is justified and the writ petition deserves to be dismissed.
11. Heard counsel for the parties and perused the record. The documents on record show that original defendant No.1- A (respondent No.1-A herein) has in categorical terms admitted the entire claim of the petitioner (original plaintiff). A reference has been made to the aforesaid document dated 26/02/2004 in the reply/written statement filed on behalf of the said respondent before the Trial Court. Thus, as per the pleadings on record, original defendant No.1-A has not opposed the claims made by the petitioner and the prayer sought in the suit. This is the reason why the Trial Court in its earlier order refused to grant permission to the petitioner to examine the said original defendant No.1-A. KHUNTE ::: Uploaded on - 20/12/2018 ::: Downloaded on - 27/12/2018 07:54:20 ::: wp4854.17.odt 6/8 It has also come on record that exhibited documents are on record before the Trial Court, supporting the claim of original defendant No.1-A that he had resigned as director of respondent No.1-company on 15/01/2004, with effect from 31/01/2004, which was accepted by respondent No.1- company on 23/01/2004. It has also come on record that the alleged compromise deed dated 26/02/2004 was signed by original defendant No.1-A and original defendant No.1- chairman of the company, who died during the pendency of the suit.
12. A specific application submitted on behalf of the petitioner seeking permission to exhibit the aforesaid document dated 26/03/2004 stood rejected by orders of the Trial Court, which in absence of challenge has attained finality.
13. In this backdrop, the learned counsel for the petitioner submitted that even if other interrogatories in the present case were ignored, the interrogatory at Sr.No.5, according to him, was relevant because it pertained to the said compromise dated 26/03/2004 and a question being put to the original defendant No.1-A in that regard.
14. The Trial Court has observed that when the said original defendant No.1-A has admitted the entire claim of the petitioner in his reply/written statement, none of the interrogatories including the aforesaid specific interrogatory, is relevant in the present case and it cannot be allowed by KHUNTE ::: Uploaded on - 20/12/2018 ::: Downloaded on - 27/12/2018 07:54:20 ::: wp4854.17.odt 7/8 exercising power under Order XI Rule 1 of the CPC, which pertains to discovery by interrogatories. Although, the Trial Court has erred in observing that all the interrogatories pertained to exhibited documents, that alone cannot be a ground to interfere with the impugned order passed by the Trial Court.
15. It has to be examined whether the interrogatories sought to be filed on behalf of the petitioner satisfied the requirement of Order XI Rule 1 of the CPC. The learned counsel for the petitioner has placed reliance on the judgment of the Orissa High Court in the case of Bhakta Charan Mallik v. Nataorar Mallik and others, reported in AIR 1991 Orissa 319, to contend that the Trial Court has committed an error because the query required to be made by the Court is to examine whether the required information from the opponent is for the purpose of maintaining the case of the plaintiff or defendant or for destroying the case of the adversary. Even if the said position of law is applied to the facts of the present case, it becomes evident that the case of the petitioner is not supported in any manner. This is because in the said judgment relevant word used is an "adversary" and order XI Rule 1 of the CPC also uses the words "opposite parties" to whom the interrogatories may be delivered under the said provision. To that extent, the learned counsel appearing for the contesting respondent is justified in contending that since original defendant No.1-A has admitted the entire claim of the petitioner, he cannot be termed to be an opposite party to whom the interrogatories KHUNTE ::: Uploaded on - 20/12/2018 ::: Downloaded on - 27/12/2018 07:54:20 ::: wp4854.17.odt 8/8 could be delivered. Therefore, on this score, no error can be found in the view taken by the Trial Court.
17. Even otherwise, the Trial Court by specific orders rejected the prayer of the petitioner to exhibit the document dated 26/03/2004. Therefore, by way of delivering the interrogatories to the contesting defendant No.1-A, the petitioner cannot be permitted to rely upon the said document, particularly when the said original defendant No.1-A has specifically admitted the entire claim of the petitioner.
18. Another relevant aspect of the present case is that the petitioner is seeking decree of specific performance or in the alternative refund of amount in terms of the modified agreement against respondent No.1-company. In this backdrop, even if eventually the petitioner succeeds and the decree is granted, he would be entitled to execute the same against the company, which is a corporate entity and a legal person. Therefore, the interrogatories sought to be delivered on behalf of the petitioner are wholly irrelevant to the controversy in the present case.
19. In view of the above, the writ petition is found to be without merit and hence, it is dismissed. No order as to costs.
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