Kerala High Court
Antony vs Joshy on 15 December, 2006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
MONDAY, THE 26TH DAY OF MARCH 2012/6TH CHAITHRA 1934
OP(C).No. 997 of 2012 (O)
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IN OS.375/2006 of PRL.M.C.,IRINJALAKUDA
PETITIONER / PLAINTIFF: -
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ANTONY, AGED 59 YEARS,
S/O.LONAPPAN, CHERADAYI HOUSE,
VELLANCHIRA DESOM,
ALOOR VILLAGE, ALOOR P.O.,
MUKUNDAPURAM TALUK,
THRISSUR DISTRICT.
BY ADV. SRI.SHOBY K.FRANCIS
RESPONDENTS / DEFENDENTS: -
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1. JOSHY,
S/O.PULLOKKARAN VARGHESE,
V.R.PURAM, PERAMBRA VILLAGE,
PERAMBRA PO, MUKUNDAPURAM TALUK,
THRISSUR DISTRICT, PIN 680689.
2. ANNIE, W/O.PALATHINKAL JOSE,
POTTA VILLAGE DESOM, POTTA PO,
MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN 680307.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26-03-2012, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 997 of 2012 (O)
APPENDIX
PETITIONER'S EXHIBITS:
EXT P1 : COPY OF THE IA.NO.3818/2006 IN OS NO.375/06 DATED 15.12.2006 FILED
BEFORE THE MUNSIFF COURT, IRINJALAKUDA.
EXT P2 : COPY OF ORDER IN I.A NO.3818/2006 IN OS NO.375/06 DATED 26.9.07
PASSED BY THE MUNSIFF COURT, IRINJALAKUDA.
EXT P3 : COPY OF ORDER IN IA NO.3818/2006 IN OS NO.375/06 DATED 31.10.2008
PASSED BY THE MUNSIFF COURT, IRINJALAKUDA.
EXT P4 : COPY OF THE ORDER IN IA NO.437/2012 IN OS NO.375/06 DATED 13.2.12
PASSED BY THE MUNSIFF COURT, IRINJALAKUDA.
EXT P5 : COPY OF THE ORDER IN IA NO.663/12 IN IA NO.3818/2006 IN OS. NO.375/06
DATED 13.2.12 PASSED BY THE MUNSIFF COURT, IRINJALAKUDA.
RESPONDENTS' EXHIBITS: NIL.
// TRUE COPY //
P.A. TO JUDGE
DMR/-
S.S.SATHEESACHANDRAN,J.
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O.P. (c) NO.997 of 2012
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Dated this the 26th day of March, 2012
JUDGMENT
Petitioner is the plaintiff in O.S. No.375/2006 on the file of the Principal Munsiff Court, Irinjalakuda. Suit is one for setting aside some registered documents which are purported to have been created fraudulently committing criminal breach of trust and cheating. Plaintiff moved Ext.P1 application under Order XI Rule 1 to direct the respondents/defendants to answer certain interrogatories set forth by him. That application was allowed vide Ext.P2 order dated 26.09.2007 by the learned Munsiff. The interrogatories were not answered by the defendants, who, later moved an application for review of Ext.P2 order, but, it was dismissed. Subsequently, taking note that the plaintiff has not moved any application under Order XI Rule 21 the learned Munsiff passed Ext.P3 order dated 31.10.2008 closing Ext.P1 application. Much later two applications were moved in the O.P. (c) NO.997 of 2012 2 suit, one by the plaintiff and the other by the defendant, the former purportedly under Order XI Rule 21 of the Code to strike off the defense of the defendant for having not answered the interrogatories as under Ext.P1 application, and, the other application by the defendants for accepting his answers to the interrogatories previously ordered by the court. After hearing both sides the application of the plaintiff was dismissed vide Ext.P4 order and that of the defendant was allowed vide Ext.P5 order condoning the delay in answering the interrogatories. Challenge in the original petition invoking the extraordinary jurisdiction of this court under Article 227 of the Constitution of India is against Exts.P3, P4 and P5 orders passed by the learned Munsiff.
2. I heard the learned counsel for the petitioner. None of the parties had any notice of Ext.P3 order passed by the court closing Ext.P1 application for non filing of a petition under Order XI Rule 21 of the Code by the plaintiff is the submission of the learned counsel for the petitioner to contend that order and also the subsequent orders Exts.P4 and P5 O.P. (c) NO.997 of 2012 3 orders passed by the court below are unsustainable under law and the learned Munsiff has gone wrong in exercising his jurisdiction in passing Exts.P3, P4 and P5 orders. After going through Ext.P1 application moved by the plaintiff with reference to Exts.P2, P3, P4 and P5, I find this is not a fit case which calls for interference with Exts.P3 to P5 orders passed by the learned Munsiff in exercise of its visitorial jurisdiction. Even assuming that the interrogatories are not answered by the party who was directed to do so by the court on the application moved by the other party it does not by itself confer on the party who applied for the interrogatories to be answered by the opposite party an indefeasible right to strike off the suit or the defense as the case may be. Order XI Rule 21 empowers the court to do so where there is default on the party to answer the interrogatories does not ipso facto lead to a conclusion that the party who applied for the same on moving such an application can compel the court to do so. It is for the court to look into the diverse facts presented in the case and then decide whether striking off the suit or of the O.P. (c) NO.997 of 2012 4 defense, as the case may be, is called for on account of the default of the party in complying with the orders issued to answer the interrogatories. In the given facts of the case having regard to Ext.P3 order passed by the court below much earlier and also that the defendant though belatedly has answered the interrogatories, I find nothing improper on the part of the court below in accepting and receiving the answers filed by him on the basis of Ext.P2 order passed on Ext.P1 application. I make it clear that the learned Munsiff has to decide the lis untrammeled by any of the observations made in Exts.P4 and P5 orders, and dispose it in accordance with law.
There is no merit in the original petition, and it is dismissed.
S.S.SATHEESACHANDRAN JUDGE.
DMR/-