Kerala High Court
Sanal vs Kunjuvareed on 31 May, 2010
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16552 of 2010(O)
1. SANAL, AGED 48 YEARS, S/O. SUBBAYYAN,
... Petitioner
Vs
1. KUNJUVAREED, S/O. OUSEPH,
... Respondent
For Petitioner :SRI.V.M.KRISHNAKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :31/05/2010
O R D E R
THOMAS P.JOSEPH, J.
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W.P(C) No.16552 of 2010
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Dated this the 31st day of May, 2010
J U D G M E N T
Petitioner filed O.S. No.411 of 2000 in the court of learned Munsiff, Chalakudy seeking a decree for prohibitory injunction against respondent obstructing plaint B schedule pathway meant for access to plaint A schedule belonging to petitioner. While the suit was pending petitioner filed Ext.P1, application to serve interrogatories on respondent. That application was allowed and respondent was directed to answer the interrogatories by affidavit. On 09.10.2009 respondent filed affidavit but without specifically answering the interrogatories. That was followed by Ext.P3, application (I.A. No.1322 of 2009) filed by petitioner under Order XI Rule 21 of the Code of Civil Procedure (for short, "the Code") requesting learned Munsiff to strike out defence of respondent. That application was opposed by respondent stating circumstances in which he was not able to give answers to the interrogatories. Learned Munsiff found that the request to strike out defence of respondent cannot be allowed and dismissed Ext.P3, application as per Ext.P4, order. That order is under W.P(C) No.16552 of 2010 -: 2 :- challenge in this Writ Petition. Learned counsel for petitioner contends that there was wilful disobeyance on the part of respondent in complying with the order on Ext.P1 and hence it was within the power of learned Munsiff to strike out defence of respondent.
2. I have gone through Ext.P1, application and interrogatories served on respondent which included details of the case filed by sister of respondent against him. In the affidavit filed by respondent in answer to the interrogatories he admitted that his sister had filed a suit against him but he did not mention particulars of the case as he has no records with him. He stated that he will answer the other questions as and when he gets relevant records. It is thereafter that petitioner filed Ext.P3, application to strike out defence of respondent. Now the question is whether circumstances existed which required learned Munsiff to strike out defence or pleadings of respondent. Order XI Rule 11 of the Code deals with the power of court to direct a party who in spite of an order omitted to answer or answered insufficiently interrogatories, or answer further the interrogatories as the case may be. Concededly that provision W.P(C) No.16552 of 2010 -: 3 :- has not been invoked by the petitioner. The decisions in Babbar Sewing Machine Co. v. Tirlok Nath (AIR 1978 SC 1436), Yusuff v. Central Bank of India (1993 [2] KLT
684) and Ismail Pillai M.Haneefa v. Mohammedali Vaidyan (2007 [3] KLT 503) inform me that the drastic step of striking out defence or pleadings as the case may be under Order 11 Rule 21 of the Code can be resorted to only in extreme cases where it is revealed from the materials on record that there was contumacious or obstinate conduct on the part of the party concerned in answering interrogatories. In this case affidavit dated 09.10.2009 shows that respondent was not able to answer at that point of time all the interrogatories as he was not in possession of the relevant records. It has come out in evidence that respondent was aged 68 years at the relevant time. In these circumstances I am not persuaded to think that circumstances warranted a finding that there was any conduct on the part of respondent which can be characterised as contumacious or obstinate inviting drastic step of striking out the defence or pleadings invoking the provision under Order XI Rule 21 of the Code. Hence there is no reason to interfere with the order under W.P(C) No.16552 of 2010 -: 4 :- challenge.
Writ Petition is dismissed without prejudice to the right of petitioner under Order XI Rule 11 of the Code if circumstances warranted.
THOMAS P. JOSEPH, JUDGE.
vsv