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2011 DIGILAW 1052 (KER)

Synergy Homes Ltd. v. Joshy John

2011-10-18

THOMAS P.JOSEPH

body2011
ORDER : Thomas P. Joseph, J. This civil revision arises from the judgment of learned First Additional District Judge Ernakulam in CMA No. 55 of 2010 setting aside the order passed by the learned II Addition Munsiff, Ernakulam on IA No. 1937 of 2010 in OS No. 577 of 2009. That is a suit filed by the respondent for injunction to restrain petitioner from constructing building, as the learned counsel submits exceeding three floors alleging that since width of the road in front of the building site is less than five metres and that construction of the building beyond three floors is in violation of the relevant Building Rules. Petitioner filed written statement contending that there is no violation. During the pendency of the suit petitioner, invoking Rule 1 of Order 11 of the Code of Civil Procedure (for short, "the Code") filed IA No. 7740 of 2009 for leave to serve interrogatories on respondent/plaintiff. In short, the questions sought to be answered by the respondent was concerning construction respondent is said to have made, according to the petitioner, in violation of the Building Rules. It is not disputed before me that learned Munsiff allowed IA No. 7740 of 2009 and permitted petitioner to serve interrogatories on the respondent. In answer to the Interrogatories so served, respondent filed an affidavit which according to the petitioner was not sufficient as there was no sufficient answer given by the respondent on the material particulars with reference to the relevant questions. Thereon petitioner filed IA No. 573 of 2010 under Rule 11 of Order 11 of the Code to direct the respondent answer further on the questions which according to the petitioner were not answered sufficiently. It is not disputed before me that IA No. 573 of 2010 also was allowed. I appears that in answer to the order on IA No. 573 of 2010, respondent filed a memo (not even an affidavit) stating whatever he had to say it is thereafter that petitioner filed IA No. 1937 of 2010 to strike of the suit from the file for non-compliance with the orders on IA No. 7740 of 2009 and 573 of 2010. According to the petitioner, there was wilful non-compliance of orders of learned Munsiff on IA Nos. 7740 of 2009 and 573 of 2010. That application was resisted by the respondent. According to the petitioner, there was wilful non-compliance of orders of learned Munsiff on IA Nos. 7740 of 2009 and 573 of 2010. That application was resisted by the respondent. Learned Munsiff found that there is non-compliance with the orders passed by the Court and allowed IA No.1937 of 2010 invoking Rule 21 of Order 11 of the Code. The suit was dismissed. Respondent challenged that order before the learned Additional District Judge in CMA No. 55 of 2010. Before the learned District Judge it was contended that unless there was something akin to obstinacy and contumacy on the part of respondent in not complying with the directions of the Court, the extreme step of dismissing the suit cannot be resorted to. That argument prevailed before the learned District Judge who allowed the C. M. Appeal and set aside order on IA No.1937 of 2010. Petitioner is aggrieved by the judgment of learned District Judge. It is argued by the learned counsel that there was total disobeyance of the orders by the respondent as is evident from the records and in particular, the answers he has given to IA Nos.7740 of 2009 and 573 of 2010. It is also pointed out that respondent who did not challenge the orders on IA Nos.7740 of 2009 and 573 of 2010, not only did not give sufficient answers to the interrogatories served but, in answer to IA No. 573 of 2010 did not even care to file an affidavit but chose to file a memo stating that questions are either irrelevant or are already answered. In the circumstances, learned District Judge should have held that there was obstinacy and contumacy on the part of the respondent in complying with the orders of the Trial Court which enabled the Trial Court to dismiss the suit invoking Rule 21 of Order 11 of the Code. 2. Learned counsel for respondent contends that interrogatories are not relevant for adjudication of the dispute involved and at any rate, non-answering of the interrogatories in the way petitioner wished is not sufficient to non-suit the respondent. Reliance is placed on the decisions in Raj Narain v. Smt. Indira Nehru Gandhi and Another 1972 KHC 648 : 1972 (3) SCC 850 : AIR 1972 SC 1302 : 1972 (3) SCR 84 and Ms. Babbar Sewing Machine Co. Reliance is placed on the decisions in Raj Narain v. Smt. Indira Nehru Gandhi and Another 1972 KHC 648 : 1972 (3) SCC 850 : AIR 1972 SC 1302 : 1972 (3) SCR 84 and Ms. Babbar Sewing Machine Co. v. Tirlok Nath Mahajan 1978 KHC 620 : AIR 1978 SC 1436 : 1978 (4) SCC 188 . 3. It is not disputed before me that learned Munsiff passed orders on IA No.7740 of 2009 under Rule 1 of Order 11 of the Code and on IA No. 573 of 2010 under Rule 11 of that Order It is also not disputed that the said orders remain in force. Therefore, it is not open to the respondent to contend in this proceeding, at this stage, that interrogatories are either irrelevant or, that he has given sufficient answers in answer to the interrogatories served on him vide the order on IA No. 7740 of 2009. The contention to the contrary raised by the learned counsel in the circumstances has to be rejected. 4. No doubt, the extreme step of dismissing the suit for non-compliance of the orders of the Court can be taken only in, extreme circumstances. For, it visits the party with dire consequence. That, is the principle laid down in Raj Narain v. Smt. Indira Nehru Gandhi and Another. In Mis. Babbar Sewing Machine Co. v. Tirlok Math Mahajan the Supreme Court was dealing with a question under Rule 1 of Order 11 of the Code which is not relevant in this proceeding. 5. I am inclined to agree with the learned District Judge that merely for the reason of non-compliance with an order the suit cannot be dismissed invoking Rule 21 of Order 11 of the Code. But, that does not mean that respondent cannot ignore the orders passed by the Trial Court and claim that the suit has to proceed further. If it is revealed from conduct of respondent and the materials on record that he has taken an obstinate stand, it is open to the Trial Court to pass appropriate order under Rule 21 of Order 11 of the Code. 6. I stated that the orders on IA Nos. 7740 of 2009 and 573 of 2010 remain in force an. that so far as it remains in force, it meant to be complied. 6. I stated that the orders on IA Nos. 7740 of 2009 and 573 of 2010 remain in force an. that so far as it remains in force, it meant to be complied. If in spite of the opportunity, given to the respondent he has not complied with the orders and still persists with his contention that the interrogatories are irrelevant. It is open to the Trial Court to consider whether the said stand of respondent is obstinate so that the consequence under Rule 21 of Order 11 of the Code should follow. I make it clear that I am not issuing any direction to the learned Munsiff in this regard. It is made clear that if the respondent is not complying with the orders of the Court it is open to the Court to consider whether the stand of the respondent is obstinate. 7. While I do not intend to interfere with the decision taken by learned District Judge that the dismissal of the suit is not justified, I hasten to add that respondent is bound to comply with the orders on IA Nos. 7740 of 2009 and 573 of 2010.1 also make it clear that notwithstanding the judgment of learned District Judge if in spite of giving sufficient time respondent fails to comply with the orders on IA Nos. 7740 of 2009 and 573 of 2010, it will be open to the Trial Court to consider whether the stand of the respondent (in not complying with the orders on IA Nos. 7740 of 2009 and 573 of 2010 and still contending that interrogatories served on him are irrelevant) amounts to contumacy and obstinacy as the Supreme Court has observed in Mis. Babbar Sewing Machine Co. v. Tirlok Nath Mahajan and pass appropriate orders in that regard Trial Court may give sufficient opportunity to the respondent to comply I with the orders on IA Nos. 7740 of 2009 and 573 of 2010. With the above direction and I modification to the judgment of the learned First Additional District Judge in CMA No. 55 of I 2010, this civil revision is disposed of. IA No. 591 of 2011 will stand dismissed.