HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH (AFR)(Reserved) Court No. - 23 Case :- CIVIL REVISION No. - 110 of 2014 Revisionist :- Ankur Pathak Opposite Party :- Arun Kumar Singh Counsel for Revisionist :- Ran Vijay Singh Counsel for Opposite Party :- Anil Kumar Srivastava Hon'ble Sudhir Kumar Saxena,J.
This revision has been filed under Section 115 of C.P.C. against the judgment and order dated 06.11.2014 passed by Additional District Judge, court no. 6, Sultanpur rejecting the application no. 50-C-2 filed under Order XI Rule 1 C.P.C.
I have heard Sri Ran Vijay Singh, learned counsel for the revisionist and Sri Anil Kumar Srivastava, learned counsel for respondent.
Briefly stated facts of the case are that Arun Kumar Singh filed an Election Petition before District Judge, Sultanpur, under Section 20(1) of the U.P. Nagar Palika Adhiniyam challenging the election of Ankur Pathak from Ward no. 2, Narayanpur, Pargana Meerapur, District Sultanpur as Sabhasad on the ground that Ankur Pathak was not eligible to file nomination as he was under-age as he had not completed 21 years of age on the date of nomination.
It appears that on 06.11.2014, Ankur Pathak filed an application under Order XI Rule 1 C.P.C. alleging that election-petitioner has not replied to the questions pertaining to date of birth, date of admission or discharge in cross examination. Moreover, petitioner has not disclosed the date of birth, although, he has admitted having possessed the 'Pan-card' and driving licence. With these allegations, he served interrogatories with the request that election-petitioner be directed to give the reply.
Objection to this application was filed by election-petitioner alleging that petitioner's evidence has already been concluded. Case is fixed for defence evidence and court can always summon the requisite papers under Order XVIII Rule 2 C.P.C. Application has been filed to prolong the litigation etc.etc..
Learned Additional District Judge vide order dated 06.11.2014 rejected the application for interrogatories which order has been impugned in this revision.
Submission of learned counsel for the revisionist is that information sought to be disclosed, is crucial for decision of election petition, as such, court below has committed an error of jurisdiction in rejecting the application.
On the other hand, submission of learned counsel for the respondent is that revision is not maintainable as the impugned order is purely interlocutory in nature. Trial court has exercised his discretion in just and proper manner etc. Trial court has observed that petitioner has examined Arun Kumar Singh, Hausala Prasad and Sushama Mishra as PW-1, 2 & 3 respectively. Matter is fixed for defence evidence. Defence wants reply in respect to the petitioner's date of birth which is not in question or relevant. Question was whether the elected candidate Ankur Pathak had completed 21 years or not and he has ample opportunity to prove this while adducing the evidence etc. etc..
So far as preliminary objection is concerned, it appears that revisionist had filed a Writ Petition No. 7252 of 2014 (MS) which was dismissed by this Court giving liberty to petitioner to file revision under Section 115 of C.P.C. in view of the judgment given in the case of Sultan Leather Finishers (P.) Vs. A.D.J. and others [2005 (23) LCD 476].
Both the learned counsels have cited decisions in support of their contentions.
Delhi High Court in the case of Basheshar Pictures Vs. Prem Prakash [1991 (44) DLT 699], relying upon the decision of Allahabad High Court given in the case of Maheshwari Oil Mill Vs. M/s. Girjanath Durga Saran [1980 AIR (Ald.) 265], has held that revision against the order for granting or refusing the leave under Order XI Rule 1 C.P.C. is 'not case decided' and revision is not maintainable. Paragraph 3 & 4 of the judgment are being reproduced below:
"3. There seems to be a good deal of force in the submission of the learned counsel for the respondent. Similar question in Maheshwari Oil Mill v. AIR 1980 All265 was considered wherein it was held that an order refusing to grant leave to a party to deliver interrogatories is not a case decided within the meaning of Section 115 of the Code of Civil Procedure, 1908 and accordingly the revision petition was dismissed. In Y. Venkateswara Rao v. K. Nagamma and another AIR 1972 Mys. 254 this question was also considered and similar view as in Maheshwari Oil Mills (supra) has been expressed. It has been held that where the Court refuses to grant leave to defendant to serve interrogatories it cannot be said that the Court had adjudicated some right or obligation of the parties in controversy. What is being sought under Order 11, Rule 1, Civil Procedure Code is the leave to deliver interrogatories. When the Court exercises it judicial discretion in granting or refusing the leave, it cannot be stated to be an adjudication of some right or obligation of the parties in controversy. In fact that Court came to that conclusion by referring and following the observations of the Supreme Court as to what amounts to case decided in S.S. Khanna v. [1964} 4 SCR409 and Baldevdas v.[1970 1 SCR435.
4. I am in respectful agreement with the views expressed by Allahabad and Mysore High Courts in this regard and, therefore, the revision petition in the present circumstances is not maintainable."
Mysore High Court in the case of Y. Venkateswara Rao Vs. K. Nagamma and another [1972(59) AIR (Mysore) 87], in paragraph 5 of the judgment, has taken a view that revision petition against such order was not maintainable. Paragraph 5 of the judgment is being reproduced below:
"5. The question therefore that has to be seen is as to whether a decision given by the Court refusing grant of leave to serve interrogatories it can be said that the court had adjudicated some right or obligation of the parties in controversy. What is being sought under Order 11, Rule 11, Civil P.C. is the leave to deliver interrogatories. When the court exercises its judicial discretion in granting or refusing the leave, it cannot be stated to be an adjudication of some right or obligation of the parties in controversy. In that view, the preliminary objection has to be upheld and both the revision petitions therefore fail. Consequently, these revision petitions are dismissed. In the circumstances of the case, there will be no order as to costs."
Allahabad High Court in the case of Maheshwari Oil Mill Vs. M/s. Girjanath Durga Saran [1980 AIR (Ald.) 265], has held that order to grant leave to deliver interrogatory is not revisable since it is not a 'case decided' and revision is not maintainable. Relevant observation of the judgment is being reproduced below:
"3. Learned Counsel for the applicant relies upon Shamrao v. Moti Ram AIR 1934 Nag 181. In that case, there is a passing observation that such an order amounts to case decided. No reasons have been given. I am unable to agree with it.
4. In my opinion, an order refusing to grant leave to a party to deliver interrogatories is not a case decided within meaning of Section 115, C. P. C."
In the case of Union of India Vs. Ibrahim Uddin and another (Civil Appeal No. 1374 of 2008) decided on 17th July, 2012, Hon'ble Supreme Court has considered the scope of interrogatories. Relevant Paragraph nos. 15 and 16 of the judgment are being reproduced below:
"15. Order XI CPC contains certain provisions with the object to save expense by obtaining information as to material facts and to obtain admission of any fact which he has to prove on any issue. Therefore, a party has a right to submit interrogatories relating to the same matter in issue. The expression "matter" means a question or issue in dispute in the action and not the thing about which such dispute arises. The object of introducing such provision is to secure all material documents and to put an end to protracted enquiry with respect to document/material in possession of the other party. In such a fact-situation, no adverse inference can be drawn against a party for non-production of a document unless notice is served and procedure is followed. Under Rule 14 of Order XI, the court is competent to direct any party to produce the document asked by the other party which is in his possession or power and relating to any material in question in such suit. Rule 15 Order XI provides for inspection of documents referred to in pleadings or affidavits. Rule 18 thereof, empowers the court to issue order for inspection. Rule 21 thereof provides for very stringent consequences for non-compliance with the order of discovery, as in view of the said provisions in case the party fails to comply with any order to answer interrogatories or for discovery or inspection of documents, he shall, if he is a plaintiff, be liable to have his suit dismissed for want of prosecution and if he is a defendant, to have his defence, if any, struck out and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the court for an order to that effect. Thus, in view of the above, the suit may be dismissed for non-compliance of the aforesaid orders by the plaintiff and the plaintiff shall also be precluded from bringing a fresh suit on the same cause of action. Similarly, defence of the defendant may be struck off for non-compliance of such orders.
16.Thus, in view of the above, the law on the issue can be summarised to the effect that, issue of drawing adverse inference is required to be decided by the court taking into consideration the pleadings of the parties and by deciding whether any document/evidence, withheld, has any relevance at all or omission of its production would directly establish the case of the other side. The court cannot loose sight of the fact that burden of proof is on the party which makes a factual averment. The court has to consider further as to whether the other side could file interrogatories or apply for inspection and production of the documents etc. as is required under Order XI CPC. Conduct and diligence of the other party is also of paramount importance. Presumption or adverse inference for non-production of evidence is always optional and a relevant factor to be considered in the background of facts involved in the case. Existence of some other circumstances may justify non-production of such documents on some reasonable grounds. In case one party has asked the court to direct the other side to produce the document and other side failed to comply with the court's order, the court may be justified in drawing the adverse inference. All the pros and cons must be examined before the adverse inference is drawn. Such presumption is permissible, if other larger evidence is shown to the contrary."
From this judgment it is manifest that question of drawing the adverse inference is required to be decided by taking into consideration the pleadings of the parties and deciding documents/evidence which are relevant for establishing the case of other side.
Learned counsel for the revisionist has relied upon the decision rendered in the case of Sultan Leather Finishers (Pvt.) Ltd. and others Vs. Additional District Judge, Court no. 4, Unnao and others (supra), and stated that in such cases, no writ can be issued against an order rejecting the application moved under Order XI Rule 1 C.P.C. Court came to conclusion that writ petition against said order is not maintainable. Court, however, observed that petitioner has alternative remedy under Section 115 of C.P.C. Paragraph 18 of the judgment is being reproduced below:
"18. In view of facts and circumstances of the case and statutory provisions, and law discussed hereinabove undoubtedly a revision shall be maintainable under Section 115 of the Code of Civil Procedure against the impugned order. Accordingly on account of availability of alternative remedy under the revisional jurisdiction, present writ petition is not maintainable under Article 227 or 226 of the Constitution of India. Still it shall be open to the petitioner to prefer a revision under Section 115 of the Code of Civil Procedure."
In paragraph 13 of the judgment Court has referred to the case of Maheshwari Oil Mill (supra) and gave no reason for taking different view from the case of Maheshwari Oil Mill as amendment in C.P.C. still exists. In the above case, writ petition has been dismissed on the ground of alternative remedy. Whether under Section 115 of C.P.C., this Court is bound to interfere with the order is something different. It has been held consistently that refusal or grant of leave, is not a case decided. Consequently, revision will not be maintainable.
Order XI Rule 1 C.P.C. is being reproduced below:
"1. Discovery by interrogatories.- 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, and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer: Provided that no party shall deliver more than one set of interrogatories to the same party without an Order for that purpose: Provided also that interrogatories which do not relate to any matters in question in the Suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross examination of a witness."
Main object of interrogatories is to save expenses by enabling a party to obtain an admission from his opponent with a view to make the burden of proof easier. It would certainly not to be extended to prying into the evidence wherewith the other side intends to support his case.
The interrogatories are permissible with regard to matters which are relevant to the facts directly in issue. In certain circumstances, however they may be extended to other facts not directly in issue, but in connection with which existence, non-existence, nature or extent of right, liability or disability, asserted or denied in the suit or proceeding necessarily follows. Sometimes it is used to show that the defence set up is unfounded.
Discovery is not limited to giving the plaintiff a knowledge of that which he does not know, but includes the getting an admission of anything which he is to prove on any issue which is raised between him and the defendant.
Order 11, Rule 6, C. P. C., enacts the nature of objections that can be advanced to the interrogatories. It says that any objection to answering any interrogatory on the ground that it is 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, may be taken on affidavit in answer. To say that the question must not be fishing only means that the question must relate to definite, existing and relevant circumstances and must not be merely in the hope of discovering some flaw in the opponents case, or with the object of filling a blank in the interrogatories, see (1936) 2 All ER 1334 Rofe v. Kevorkian.
From the above, it is manifest that conduct of the parties is also relevant while considering under Order XI Rule 1 C.P.C.
In the instant case, helplessness of the trial court would be evident from the order itself which shows that defence evidence could not commence despite order passed by this Court for expeditious disposal.
It may be relevant to state that Hon'ble Ritu Raj Awasthi, J. was pleased to direct the disposal of election petition within six months. This order was passed on 11.07.2013 in Writ Petition No. 3211 of 2013(MS). Relevant part of the judgment is being reproduced below:
"In this view of the matter, the writ petition is disposed of finally with a direction to opposite party no. 1/District Judge, Sultanpur to consider and decide the aforesaid election petition in accordance with law, expeditiously, say within a period of six months, if possible, from the date of receipt of certified copy of this order. With the aforesaid observations, the writ petition is disposed of."
Despite this order, which was passed after hearing both the side, after conclusion of petitioner's evidence, matter was fixed for defence evidence on 05.08.2014 but thereafter more than eight dates have been fixed but evidence was not led and on 06.11.2014 impugned order was passed.
It is apparent that court was conscious of the efforts made by returned candidate Ankur Pathak to hold disposal of election petition and rightly rejected the application.
In view of discussion made above, this revision is devoid of merits and is dismissed with costs.
In the circumstances of the case, this Court directs trial court to dispose of the election petition within three months.
It is clarified that no adjournment will be granted to present revisionist on any ground.
Parties will appear before the court below on 23rd November, 2015.
Order Date :-05/11/2015 kkv/