Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 1214 (PAT)

Marwari College v. Md. Salahuddin

2012-08-31

JYOTI SARAN

body2012
ORDER Heard Mr. Abhay Kumar, learned counsel for the petitioner and Mr. S.D. Sanjay, learned counsel for the respondents. 2. This application under Article 227 of the Constitution of India has been filed for quashing the order dated 10.3.2011 passed by the learned Sub Judge 1st Kishanganj in Title Suit No. 4 of 1997 whereby the learned Court below upon failure of the defendant-petitioners to respond to the second set of interrogatories dated 26.9.2001 placed at Annexure-3 of the application, has been pleased to strike of their defence under Order 11 Rule 21 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’). 3. The suit in question has been filed by the plaintiff-respondent Nos. 1 to 6 for declaration of title and possession over the suit land as well as for a declaration that the defendant 1st party i.e. petitioners herein are having no right, title and interest over the suit land and thus seeking the permanent injunction against the defendant restraining them from disturbing the possession of the plaintiffs over the suit property. 4. During the course of hearing an application under Order 11 Rule 4 of the Code was served in the form of interrogatories upon the defendants-petitioners placed at Annexure-1 requiring them to respond to the interrogatories enclosed with the application placed at Annexure-1. The defendants-petitioners responded to the same and which is placed at Annexure-2 of the application. Not being satisfied the plaintiffs filed another application stating the information provided by the defendant-petitioners as being vague, requiring them to again respond to the queries mentioned in the application dated 26.9.2001 placed at Annexure-3. 5. It is not in dispute that the said application remained unanswered and as a consequence an application was filed by the plaintiff on 5.10.2010 placed at Annexure-4 praying for striking of defence of the defendants on their failure to respond to the interrogatories as contained in Annexure-3. 6. The prayer was allowed following the statutory provisions underlying Order 11 Rule 21 of the Code by the impugned order hence the present application. Mr. Abhay Kumar learned counsel for the petitioners submits that the exercise of power under Order 11 Rule 21 has to be in exceptional circumstance and specially when there is no deliberate attempt on the part of the concerned parties in avoiding to respond to the interrogatories. 8. Mr. Abhay Kumar learned counsel for the petitioners submits that the exercise of power under Order 11 Rule 21 has to be in exceptional circumstance and specially when there is no deliberate attempt on the part of the concerned parties in avoiding to respond to the interrogatories. 8. It is the contention of the learned counsel that the bonafides of the petitioners manifests from the response made by the defendants-petitioners to the interrogatories placed at Annexure-2 and which was true and complete as per their information and knowledge. 9. Learned counsel submits that the plaintiff without discussing as to how the response of the defendants was vague, have simply reiterated the queries once again and since the defendants had already responded to the said interrogatories by giving detailed response earlier, there was nothing further to add thereon and thus the petitioner did not respond. It is further the case of the defendants-petitioners that in between their counsel had become ill and the matter was being contested by his son. 10. Learned counsel with reference to the impugned order submits that even while the learned trial Court was aware that the earlier counsel had withdrawn from the proceedings and a fresh Vakalatnama had been filed, he has proceeded to pass the order impugned striking of the defence of the defendants-petitioners thus severely prejudicing his case. 11. Learned counsel for the petitioners in support of his submission has relied upon a judgment of the Supreme Court reported in AIR 1978 SC 1436 (Babbar Sewing Machine Company versus Trilok Nath Mahajan) and submits that the Supreme Court has held that the power vested in a Court under Order 11 rule 21 should be exercised in exceptional circumstances where the default is willful and deliberate and where the Court is satisfied that the party concerned is willfully refusing to answer the interrogatories. Learned counsel submits that it is only in such circumstance that the power of dismissing the suit or striking of the defence should be exercised. 12. Learned counsel with reference to the response filed by the defendants-petitioners to the interrogatories of the plaintiff placed at Annexure-2 submits that the petitioners were not found wanting on this score. It is further submitted that in absence of clarification as to the vagueness in the response filed by the petitioners, the second set of interrogatories did not warrant any further response. 13. It is further submitted that in absence of clarification as to the vagueness in the response filed by the petitioners, the second set of interrogatories did not warrant any further response. 13. I have heard learned counsel for the parties and have perused the materials on record. 14. The interrogatories placed at Annexure-1 required the defendants to respond to two issues. Perusal of Annexure-2 which is the response to the interrogatories by the petitioners manifests that a detailed response has been given by them, which according to the plaintiff was not satisfactory and was wanting on some score. But merely to term the response as being vague would not suffice inadequacy requiring the defendants to file another reply until it is specifically pointed out by the plaintiff as to the specific information which they seek and which is missing in the second set of interrogatories dated 5.10.2010. 15. This Court is of the opinion that the second set of interrogatories was merely with a view to cause harassment to the defendants and was correctly not answered by the petitioners. 16. For the reasons aforesaid this application is allowed. The order impugned is set aside.