Research › Browse › Judgment

Gauhati High Court · body

1960 DIGILAW 40 (GAU)

Raj Mohan Saha v. Maharaja Srila Srijukha Kirit Bikram Kishore Deba Barma Manikya Bahadur

1960-07-22

T.N.R.TIRUMALPAD

body1960
The Petitioner is the Defendant in Civil Suit No. 9 of 1957 in the Court of the Sub­ordinate Judge, Tripura. The Respondent, the Maharaja of Tripura filed the Suit for eviction of die Petitioner alleging that the Petitioner was the lessee of the land held by him, that the period of lease has expired, that he has refused to vacate and that the Respondent was entitled to damages for use and occupation after the period of the lease. The defence of the Petitioner was that he never took any lease from the Respondent, that he was the partner of a firm, that he and his partners took the lease of certain lands belonging to the Maharani, the mother of the Respondent, that the lease-hold land has not been correctly described in the plaint, that the lease was a permanent one for an indefinite period beginning from 1949 and that the Respon­dent was not entitled to any relief. (2) In the course of the Suit the Respondent applied for the appointment of a Survey Commis­sioner to fix the property in the possession of the Petitioner. After the Commissioner had reported to the Court on 16-12-1958, the Petitioner wanted certain further matters also to be recorded by the Commissioner and the Commissioner has been asked to do it by the Court. (3) It was at this stage that on 22-1-1959 the Petitioner wanted to serve four interrogatories on the Respondent and on the same date the Court asked the Respondent to file answers to the inter­rogatories within 10 days. On 27-1-1959 the respondent filed an application under Order XI, Rule 7 C. P. C. pointing out that the interrogatories were irrelevant for the purpose of the case and did not relate to the subject-matter of the controversy and that they were frivolous, unreasonable and unneces­sary and requested the Court to set aside the same. The Petitioner filed an objection to that petition pointing out that the interrogatories were quite relevant to show that the Respondent cannot claim to be the lessor and further that the Court already having called upon the Respondent to answer the interrogatories he was bound to answer them and that otherwise the Suit should be dismissed. The Petitioner filed an objection to that petition pointing out that the interrogatories were quite relevant to show that the Respondent cannot claim to be the lessor and further that the Court already having called upon the Respondent to answer the interrogatories he was bound to answer them and that otherwise the Suit should be dismissed. (4) The Court considered the petition and objec­tion and held that the interrogatories did not appear to have any relation to the subject-matter "of the Suit which-was only for the ejectment of the lessee defendant from the premises and that the title to the premises cannot be decided in that Suit and hence the interrogatories cannot be maintained. Accordingly it set aside the interrogatories. It is against that order that this revision petition has been filed. (5) It was first argued that the Court having already asked the Respondent to answer the interro­gatories it cannot subsequently change its own order and set aside the interrogatories. I am unable to understand this objection at all. The application to serve the interrogatories was filed on 22-1-59 and on the same date the Respondent was asked to file answers evidently under Order XI, Rule 2 C. P. C. That was done without hearing the objections of the Respondent, When the Respondent gets such interrogatories for answer, he can answer such of them which he has no objection to answer and in respect of such of them which he objects to answer on the ground that they are scandalous or irrelevant or not exhibit­ed bona fide for the purpose of the suit or that the matters enquired into are not sufficiently material at that stage or on any other ground, he can take this objection in the same affidavit in which he answers the interrogatories which he does not object to. This is provided under Order XI, Rule 6. This can be done only after the Court has called upon him to answer the interrogatories. Hence the com­plaint of the Petitioner that when once the Court has asked the Respondent to answer the interro­gatories the Court cannot thereafter set aside or strike out the same is not at all valid. This is provided under Order XI, Rule 6. This can be done only after the Court has called upon him to answer the interrogatories. Hence the com­plaint of the Petitioner that when once the Court has asked the Respondent to answer the interro­gatories the Court cannot thereafter set aside or strike out the same is not at all valid. (6) Instead of taking the objection in the affidavit in answer, the Respondent can file an application under Order XI, Rule 7 within 7 days after service of the interrogatories for setting them aside on the ground that they have been exhibited unreasonably or vexatiously or on the ground that they are prolix, oppressive, unnecessary or scandalous. In a case where the person called upon to answer objects to answer all the interrogatories, the proper procedure for him is to apply under Order XI, Rule 7. It is clear that Order XI, Rule 6 applies only to cases where such a person does not object to answer some of them while he takes objection to answer certain others. Here the Respondent was; objecting to answer all of them and his application was filed within 5 days of the service of the interro­gatories on him. I am unable to .see how the Peti­tioner could take any objection to such an applica­tion. (7) It was next argued that the lower Court was in error in striking out the interrogatories as they were very material to the case. What the Petitioner wanted me to do is to go through all of them and to sec whether on the pleadings of the parties they were material. This cannot be done in a revision petition under Sec. 115 C. P, C. The lower Court has the discretion to allow or not to allow interro­gatories and it is within its jurisdiction. Normally where a Court acts within jurisdiction and in the exercise of its discretionary power this Court will not interfere in revision. After all in­terrogatories are allowed by a Court as provided under Order XI, Rule 2 where the Court considers them to be necessary either for disposing fairly of the Suit or for saving costs. It is clear from the order of the lower Court that it considered the in­terrogatories to be quite unnecessary for the purpose of this case. After all in­terrogatories are allowed by a Court as provided under Order XI, Rule 2 where the Court considers them to be necessary either for disposing fairly of the Suit or for saving costs. It is clear from the order of the lower Court that it considered the in­terrogatories to be quite unnecessary for the purpose of this case. (8) But it was pointed out that the lower Court has acted with material irregularity in the exercise of its jurisdiction in disallowing the interro­gatories and for this purpose I was taken in detail through all the interrogatories. After all if a party, is not allowed to serve interrogatories or if they are set aside as unnecessary he is not materially affect­ed as he could get the necessary answers in the cross-examination of the Respondent's witnesses and he can also let in evidence on his side. So at this stage of the Suit this Court in the exercise of its revisional jurisdiction will not go into the details of these interrogatories. (9) However as the matter was argued at full length and I was taken through all the interrogatories, I have satisfied myself that the lower Court's order is correct. There are four interrogatories. The first one was whether the Respondent had furnished an inventory of his immovable property at the time of the Tripura Merger Agreement dated 9-9-1949. It was admitted before me by the Petitioner that he has got a certified copy of the said inventory. It is a public document of which the Petitioner could get a certified copy and hence no interrogatory was at all called for and hence it was quite unneces­sary. The second interrogatory is whether certain properties like the Lakshminarayan Bari compound and the Durga Bari compound are outside the in­ventory referred to in the first question. This is a matter for interpretation by the Court on the terms of the document and the Respondent cannot be asked to answer it at that stage. The Respondent's definite case in the plaint is that the suit property is within the Palace com­pound, while the defence of the Petitioner is that it is part of the Durga Bari compound which, accord­ing to him, is not the Respondent's property. Hence at this stage, he cannot ask the Respondent to answer the question. The Respondent's definite case in the plaint is that the suit property is within the Palace com­pound, while the defence of the Petitioner is that it is part of the Durga Bari compound which, accord­ing to him, is not the Respondent's property. Hence at this stage, he cannot ask the Respondent to answer the question. It is a question which should be put by the Petitioner in cross-examination to the Res­pondent's witnesses. (10) The third question was as to who was the owner of the lands and buildings covered by Laksh-minarayan Bari compound and Durga Bari com­pound. Here it may be stated that the Petitioner's case is that the lands under lease formed part of the Durga Bari compound) and that is belonged to the Maharani from whom he took the lease, whereas according to the plaint the pro­perty in Suit is inside the Palace Compound and the Durga Bari compound is shown as the eastern boun­dary of the Suit property. The Suit being one on lease, the question in the Suit is whether the lease is true. No doubt the Defendant in such a Suit may be entitled to set up the title of a third party. But this will be allowed only for the purpose of disprov­ing the lease and not for deciding the title. Thus the question of title of the Durge Bari compound and Lakshminarayan Bari compound is really not material to the Suit as stated by the Subordinate Judge and I cannot, therefore, blame the lower Court for having disallowed that question. It is for the Petitioner to establish as part of his evidence that Durga Bari Compound belongs to the Maharani and not to the Respondent and that the property in Suit is part of the Durga Bari compound. (11) With regard to question four, it is to answer whether Lakshminarayan Bari compound and Durga Bari compound are included in the record of rights that were published on 6-7-1347 T. E. That is again a matter for interpretation of the record 'of rights by the Court and strictly not necessary in this Suit for ejectment on the basis of a lease. (12) Hence it is clear that the Court has not exercised its jurisdiction with material irregularity in disallowing the interrogatories. (12) Hence it is clear that the Court has not exercised its jurisdiction with material irregularity in disallowing the interrogatories. (13) The Respondent's learned Advocate has pointed out that the attempt on the part of the Petitioner was to delay the Suit as long as possible and he even stated that this revision petition was only filed with that object in view. I cannot say that this complaint is entirely without basis. The lower Court will proceed to dispose of the Suit as early as possible. (14) There are no merits in this revision peti­tion and it is accordingly dismissed with the costs of the Respondent. Advocate's fee Rs. 50/-. Petition dismissed.