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2011 DIGILAW 185 (KER)

Omega Crown v. Thomson

2011-02-14

K.T.SANKARAN

body2011
JUDGMENT : 1. The respondent filed O.S.No.637 of 2008, Principal Sub Court, Thrissur, against the petitioner claiming compensation. The petitioner is a builder. The respondent alleged that while constructing a multi-storied building, the petitioner removed earth from the property to a depth of 40 feet which resulted in the damage to the house of the respondent/plaintiff. 2. A Commissioner was appointed to assess the damages. An expert Engineer was also appointed. The relevant documents were not produced by the petitioner before the Commissioner and therefore, the Commissioner could not report the relevant details before the Court. 3. The respondent/plaintiff was, therefore, constrained to file I.A.No.9803 of 2010 under R.1 of O.XI of the Code of Civil Procedure to direct the defendant to answer the interrogatories mentioned in the I.A. The court below found that the interrogatories are relevant for the adjudication of the disputes involved in the case and that the defendant is bound to answer those interrogatories. That order is under challenge in this Original Petition. 4. The learned counsel for the petitioner submitted that the defendant/builder had entrusted the work to a contractor and he is having direct knowledge about the details sought for in the interrogatories. It is submitted that the plans in respect of the building were produced by the petitioner before the Thrissur Corporation and those plans are not available now. Therefore, it is necessary to implead the contractor as a party to the suit and he must be directed to answer the interrogatories. 5. Under R.1 to O.XI of the Code of Civil Procedure, the defendant is bound to answer the interrogatories, if the court grants leave for such interrogatories. Whether the contractor should be impleaded in the suit is a matter for the decision of the plaintiff, he being the dominus litus. If the court finds that the contractor is also a necessary party in order to have a complete and effectual adjudication of the questions involved in the suit, notwithstanding that the plaintiff did not make any application, the court can suo molu exercise the powers under R. 10(2) of O.1 of the Code of Civil Procedure. But that is not a substitute for the responsibility of the defendant to answer the interrogatories. But that is not a substitute for the responsibility of the defendant to answer the interrogatories. The defendant is not entitled to plead that a contractor engaged by him alone knows the relevant facts and therefore, he should be impleaded as an additional defendant in the suit. There is no privity of contract between the plaintiff and the contractor employed by the defendant. The plaintiff is not bound to implead the contractor as a party to the suit in order to compel him to answer the interrogatories. It is for the defendant to get the relevant details from the contractor appointed by him and furnish the answers to the interrogatories. The plaintiff has no such responsibility and the burden in that regard is on the defendant. Therefore, I reject the contention put forward by the learned counsel for the petitioner. 6. The learned counsel for the petitioner submitted that along with I. A.No. 9803 of 2010 the plaintiff did not make any application for granting leave for serving the interrogatories and therefore, the application is not maintainable. R. I of O.XI provides that in any suit, the plaintiff or defendant by leave of the court may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties. The leave of the court mentioned in R.1 would be granted by the court if the court finds that the interrogatories relate to any matters in question in the suit. It is not necessary that a separate application for leave should be submitted along with the application under R.1 of O.XI. It is sufficient if the petitioner makes out sufficient grounds in the application under R.1 of O.XI to enable him to deliver interrogatories on the opposite party. If the court finds that the interrogatories are required to be answered by the opposite party, the court will grant leave for the same. On granting such leave, the opposite party is bound to answer the interrogatories. I am not inclined to accept the contention of the learned counsel for the petitioner that apart from the application under-R. I of O.XI, the petitioner therein should also file a separate application for leave. 7. The court below rightly held that the petitioner/defendant is bound to answer the interrogatories. No jurisdictional error or error of law is established warranting interference under Article 227 of the Constitution of India. 7. The court below rightly held that the petitioner/defendant is bound to answer the interrogatories. No jurisdictional error or error of law is established warranting interference under Article 227 of the Constitution of India. The Original Petition is, accordingly, dismissed.