Shri.Amol Vijay Joshi vs Smt. Moushumi Shailesh Vaidya ...
2023 Latest Caselaw 2492 Bom

                                                                   15-AO100-2021+.DOC

                                                                                Santosh
                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CIVIL APPELLATE JURISDICTION


                                  APPEAL FROM ORDER NO. 100 OF 2021

SANTOSH               Amol Vijay Joshi                                    ...Appellant
SUBHASH
KULKARNI                                  Versus
Digitally signed by
SANTOSH SUBHASH
                      Smt. Moushumi Shailesh Vaidya through
                      Shailesh Yadunath Vaidya & ors.           ...Respondents
KULKARNI
Date: 2023.03.17
19:51:25 +0530
                                                 WITH
                                INTERIM APPLICATION NO. 1363 OF 2020
                                                  IN
                                 APPEAL FORM ORDER NO. 100 OF 2021

                      Mr. Shankar Thorat, for the Appellant.
                      Mr. S. S. Jinsiwale, for Respondent No.1.
                      Ms. Payal Upadhyay, i/b ANP Chambers, for Respondent No.7.

                                                   CORAM:     N. J. JAMADAR, J.

                                                   DATED :    15th MARCH, 2023
                      ORDER:-

1. Heard the learned Counsel for the appellant.

2. The challenge in this appeal is to an order dated 9 th July,

2019, passed by the learned 5th Jt. Civil Judge, Senior Division,

Pune, on an application (Exhibit-113) for dismissal of the suit

under Order XI Rule 21 of the Code of Civil Procedure, 1908

("the Code") for non-compliance of the directions to reply to the

interrogatories given by the Court by order below application

(Exhibit-69).

15-AO100-2021+.DOC

3. The appellant - defendant No.1 had filed an application

(Exhibit-69) seeking direction to the plaintiff to answer the

interrogatories. The said application came to be allowed and the

plaintiff was directed to answer the interrogatories.

4. It was the contention of the appellant before the trial court

that there was non-compliance of the order of the said Court,

which entailed the consequence of the dismissal of the suit

under Order XI Rule 21 of the Code.

5. By the impugned order, the learned Civil Judge recorded

that the answers to the interrogatories were taken on record

after condoning the delay pursuant to the order below

application (Exhibit-118). Since the interrogatories have been

answered by the Power of Attorney holder of the plaintiff, the

claim of defendant No.1 that there was non-compliance of the

order, did not merit acceptance. Hence, the application came to

be rejected.

6. Being aggrieved, defendant No.1 is in appeal.

7. The learned Counsel for the appellant would urge that

direction to answer interrogatories cannot be said to have been

complied with as the interrogatories were of such a nature that

only the plaintiff in person could have answered those

interrogatories on the basis of her personal knowledge. The

15-AO100-2021+.DOC

answers to the interrogatories by Mr. Yadunath Ganesh Vaidya,

the purported Power of Attorney holder of the plaintiff,

therefore, cannot be said to be in conformity with the provisions

of Order XI of the Code.

8. To bolster up the submission Mr. Thorat placed reliance on

the judgments of the Supreme Court in the cases of Mohinder

Kaur vs. Sant Paul Singh1 and Janki Vashdeo Bhojwani & Anr.

vs. Indusind Bank Ltd. and others2.

9. It is trite that the Power of Attorney can only depose to the

facts which are within the personal knowledge and "to act" does

not subsume within its fold the power to depose. Nobody can

authorize another to depose on his behalf.

10. However, the aforesaid propositions do not govern the facts

of the case at hand. It is imperative to note that the suit was

instituted by the plaintiff through a Power of Attorney. Answers

to the interrogatories by a Power of Attorney on the strength of

the information and knowledge of the plaintiff does not seem to

be in breach of the mandate contained in Order XI of the Code.

Rule 10 of Order XI provides in clear terms that no exception

shall be taken to any affidavit in answer, but if in the sufficiency

or otherwise of any such affidavit objected to as insufficient

1(2019) AIR 4780.

2    2005(3) Supreme Court 275.

                                             15-AO100-2021+.DOC

shall be determined by the Court. Inadequacy or insufficiency of

answers cannot be equated with the non-compliance of the

order to answer interrogatories entailing consequences provided

in Rule 21 of Order XI. In my view the analogy of 'deposition'

before the Court can not be readily imported to answers to the

interrogatories. Hence, no fault can be found with the

impugned order.

11. The appeal thus stands dismissed.

12. In view of disposal of the appeal, Interim Application

No.1363 of 2020 does not survive and stands disposed.

[N. J. JAMADAR, J.]