Kerala High Court
Dasan vs Yathra,A Registered Partnership Firm on 13 February, 2025
O.P.(C)No.3329 of 2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
THURSDAY, THE 13TH DAY OF FEBRUARY 2025 / 24TH MAGHA, 1946
OP(C) NO. 3329 OF 2017
AGAINST THE ORDE DATED 01.11.2017 IN I.A.NO.74/2017 IN
OS NO.230 OF 2011 OF SUB COURT, CHERTHALA
PETITIONER/PLAINTIFF:
DASAN
S/O.PARAMESWARAN,KULANGARATHARAVEEDU,
PADINJATTUMKARA SOUTH MURI,
THIRUMALABHAGOM, THURAVOOR SOUTH VILLAGE.
BY ADVS.
SMT.C.G.BINDU
SMT.C.G.AJITHA
RESPONDENT/DEFENDANTS:
1 YATHRA,A REGISTERED PARTNERSHIP FIRM
REGISTRATION NO 939/2001, MEENU BHAVAN,
KALAVAMKODAM P O, CHERTHALA TALUK,REPRESENTED BY
PARTNER,(WRONGLY TYPED IN THE ORDER IN IA NO.
74/2017 AS MANAGING PARTNER), C.D.RAJENDRAN,
S/O.NARAYANAN,MEENUBHAVAN, KALAVAMKODAM P O,
PIN - 688 232
2 C.D.RAJENDRAN
S/O.NARAYANAN, MEENU BHAVAN,KALAVAMKODAM P O,
CHERTHALA TALUK,MANAGING PARTNER OF YATHRA,
PIN - 688232
O.P.(C)No.3329 of 2017
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3 R.SHAJI
S/O.RAJAPPAN,PUTHUKKARICHIRA
KALAVAMKODAM PO, VAYALAR EAST VILLAGE,
CHERTHALA,PARTNER OF YATHRA, (WRONGLY TYPED IN THE
ORDER IN IA NO .74/2017 AS MANAGING PARTNER)
PIN - 688232
4 V G RADHAKRISHNAN
S/O.GOPINATHAN,VALLAZHATHU VEETTIL,
KALAVAMKODAM P O,VAYALAR EAST VILLAGE,
CHERTHALA,PARTNER OF YATHRA,(WRONGLY TYPED IN THE
ORDER IN IA NO 74/2017 AS MANAGING PARTNER)
PIN - 688232
5 C P SURESH
S/O.PURUSHAN,CHERUKANI VEEDU,
KALAVAMKODAM P O,VAYALAR EAST VILLAGE,
CHERTHALA,PARTNER OF YATHRA,(WRONGLY TYPED IN THE
ORDER IN IA NO 74/2017 AS MANAGING PARTNER)
PIN - 688232
6 P.G.NATARAJAN
S/O.GOPALAN,POKKALISSERRY VEEDU,
KALAVAMKODAM P O,VAYALAR EAST VILLAGE,
CHERTHALA,PARTNER OF YATHRA,(WRONGLY TYPED IN THE
ORDER IN IA NO 74/2017 AS MANAGING PARTNER)
PIN - 688232
7 S.DINESAN
S/O.SANKUNNY,RADHANIVAS, PATTANAKKAD PO ,CHERTHALA,
PARTNER OF YATHRA,(WRONGLY TYPED IN THE ORDER IN IA
NO 74/2017 AS MANAGING PARTNER)
PIN - 688535
8 SUNILDETH
S/O.GOPALAKRISHNAN,AMRITHAM VEEDU,
PATTANAKKAD P O,CHERTHALA, PARTNER OF YATHRA,
(WRONGLY TYPED IN THE ORDER IN IA NO 74/2017 AS
MANAGING PARTNER)
PIN - 688535
9 K.MOHANAN
S/O.KRISHNAN,KRISHNABHAVANAM @
KUNCHELATHUVEEDU,KALAVAMKODAM P O, VAYALAR EAST
VILLAGE, PARTNER OF YATHRA,(WRONGLY TYPED IN THE
ORDER IN IA NO 74/2017 AS MANAGING PARTNER)
PIN - 688232
O.P.(C)No.3329 of 2017
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10 DILEEP
S/O.THANKAPPAN,PUTHUVAL NIKARTH, KALAVAMKODAM P O,
VAYALAR EAST VILLAGE, PARTNER OF YATHRA,(WRONGLY
TYPED IN THE ORDER IN IA NO 74/2017 AS MANAGING
PARTNER)
PIN - 688232
11 SABU
S/O.VISWAN,VADAKKE VARAYIL,
KALAVAMKODAM P O,VAYALAR EAST VILLAGE, CHERTHALA,
PARTNER OF YATHRA,(WRONGLY TYPED IN THE ORDER IN IA
NO 74/2017 AS MANAGING PARTNER)
PIN - 688232
12 MURALEEDHARAN
S/O.PADMANABHAN,ATHIRANIVAS, NEAR KULATHRAKKAD
TEMPLE,CHERTHALA P O, CHERTHALA
TALUK,KOKKOTHAMANGALAM VILLAGE,PARTNER OF YATHRA,
(WRONGLY TYPED IN THE ORDER IN IA NO 74/2017 AS
MANAGING PARTNER)
PIN - 688535
BY ADVS.
SRI.P.V.JAYACHANDRAN
SMT.G.N.DEEPA
SRI.NIDHI BALACHANDRAN
THIS OP (CIVIL) HAVING COME UP FOR HEARING ON
30.01.2025, THE COURT ON 13.02.2025 DELIVERED THE FOLLOWING:
O.P.(C)No.3329 of 2017
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CR
JUDGMENT
The plaintiff, who filed a suit for the recovery
of money from a registered partnership firm engaged
in the business of transport service, delivered
interrogatories for the discovery of facts related
to the suit when the defendants denied the plaint
claim. Alleging that certain defendants did not
fully answer the specific questions put to them
while answering the interrogatories through Ext. P4
affidavit, the plaintiff further filed Ext.P12
application under Order XI Rule 11 read with Order
XIX Rule 2 of the Code of Civil Procedure
(hereinafter referred to as 'the Code') for viva
voce examination of the defendants.
2. The Sub Court dismissed the said application
as per Ext.P13 order by finding that the plaintiff
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did not specifically state to which question the
answers are incomplete or contradictory. The
plaintiff challenges the said order by preferring
the present original petition.
3. The petitioner contends that as he has no
documentary evidence to prove the plaint claim, it
is highly necessary to get proper and precise
answers to the interrogatories originally submitted
and thus viva voce examination of the respondents is
unavoidable. The respondents contend that there is
no illegality in the impugned order and the
petitioner has no justification for filing the
above-said application.
4. Heard the learned counsel appearing for the
petitioner and the respondents. Before assessing the
legality of the impugned order, it is necessary to
delineate the legal framework governing the
discovery of facts by delivery of interrogatories
and the consequence of failure to answer the same.
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5. Interrogatories are aimed at discovering
facts. They will narrow down the controversy in a
suit and enable the litigant to compel his opponent
to disclose facts relating to the matters in
question in a suit or other proceeding. Answers
given on interrogatories and documents disclosed on
the application for discovery of documents will form
part of the evidence.
6. As per Rule 1 of Order XI of the Code, there
are certain restrictions for delivering
interrogatories. The interrogatories can be
delivered only with the leave of the court and the
party shall not deliver more than one set of
interrogatories to the same party, without the order
of the court. The scope of interrogatories shall be
related to any matters in question in the suit. The
expression "matters in question in the suit" is
similar to the facts in issue i.e., matters related
to the existence or non-existence of any right or
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liability asserted or denied in the suit.
7. Matters in question/issue are indeed not as
wide as matters that are relevant during the cross-
examination of a witness in the suit. Therefore, the
interrogatories that are not related to matters in
issue will be deemed irrelevant, even if such
matters might be admissible on oral cross-
examination of a witness. The court will not grant
leave to deliver such interrogatories. If the
interrogatories relate to any matter in question or
issue in the suit, the court must be very liberal in
granting leave, as a general rule. It should
ordinarily encourage the litigants to deliver the
interrogatories to the opponent, especially for the
reason that a party to a proceeding cannot, as of
right, examine his opponent as a witness during the
trial.
8. If the opposite party omits to answer the
interrogatories or provides insufficient, vague, or
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evasive responses, the applicant has two options. He
can apply to the court for leave to deliver a fresh
set of interrogatories if it is helpful to pinpoint
the shortcomings in the reply. Delivering more than
one set of interrogatories, though restricted in the
first proviso to Rule 1 of Order XI, the same
provision makes it clear that it can be done with
the permission of the court. A vague or evasive
answer to the first set of interrogatories is
certainly one of such eventualities in which the
court can permit a party to deliver another set of
interrogatories to nail down his contumacious
opponent.
9. The second course open to him is to apply to
the court under Rule 11 of Order XI. In Yusuff v.
Central Bank of India (1993 (2) KLT 684), this court
has held that the drastic step of striking out the
defence or dismissing the suit as envisaged under
R.21 of Order XI would be invoked by the court only
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if the opposite party has failed to comply with the
direction of the court in pursuance to an order
under R.11 of O.XI.
10. When an application under Rule 11 of Order
XI is made alleging that the opposite party omitted
to answer the interrogatories or the answers given
are insufficient, the applicant is bound to specify
the interrogatories or part of the interrogatories
to which the omission occurred or further answer is
required. He should also state in a reasonably clear
manner the context that requires further
clarification. It is not permissible to fish for
answers under the guise of requiring further
answers. The court can decide the question of
omission or insufficiency in the answers only if the
request is definite and clear.
11. In this case, the petitioner chose the
second course. Let us now examine the scheme of Rule
11 to decide the correctness of the petitioner's
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challenge. Rule 11 reads thus:
"Order to answer or answer further - Where any
person interrogated omits to answer, or answer
insufficiently, the party interrogating may apply
to the Court for an order requiring him to answer,
or to answer further, as the case may be. And an
order may be made requiring him to answer, or
answer further, either by affidavit or by viva
voce examination, as the Court may direct."
It is clear from the language of Rule 11 that a
party aggrieved by the omission or insufficiency in
the answers to the interrogatories can apply to the
court for an order requiring the opposite party to
answer/answer further, as the case may be. The
manner in which the answer/further answer ('answer'
in the case of omission and 'answer further' in the
case of insufficiency) is to be given by the
opposite party will be decided by the court. The
court may either direct the party to answer/ answer
further by affidavit or by viva voce examination.
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Rule 11 does not empower the party interrogating to
choose a particular course of action in this regard.
He can only apply to the court for an order
requiring the opposite party to answer in the manner
decided by the court.
12. The term "viva voce examination" is used in
Rule 11 of Order XI to connote oral examination, in
contradistinction to the written examination of the
opposite party by delivery of interrogatories as
contemplated in Rule 1 of Order XI. Conventionally,
a viva voce examination will be ordered by the court
only in exceptional circumstances. In Halsbury's Law
of England (4th edition, Volume 13 Paragraphs 101 and
102, paragraph 140), it is stated as follows:
"Oral Examination. The order may be that the
further answer be by affidavit or by oral
examination, but the latter mode is only
adopted in exceptional cases. Where it is
ordered the scope of the examination is not
larger than that of interrogatories, and the
party examined can only be required to give
such an answer as would have been sufficient
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if given in the affidavit in answer to the
interrogatories."
However, if the court feels that a party to the suit
is evading answering the relevant interrogatories,
it should not hesitate to order the same if it finds
that such a viva voce examination alone would yield
the desired result. Similarly, if the court finds
that the answers given by the party are
unsatisfactory, in spite of being given an
opportunity to answer further by affidavit, the
court should ordinarily direct him to appear in
person for a viva voce examination. A similar view
was expressed by this Court in Jortin Antony v.
S.P.D Marthanda Varma (2001(1)KLT 511).
13. A proceeding before a court of law is not
akin to a game of hide-and-seek between the parties.
The parties are bound to state the truth, and
nothing but the truth, before the court. If a party
evades its responsibility to the court and employs
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evasive tactics, the court has a duty to ensure a
level playing field for the adversary by invoking
the appropriate measures provided in the Code.
14. However, in Ext.P12 application submitted by
the petitioner, he has not described the
insufficiency or incongruity of the answers.
Instead, he has made a general statement in
paragraph 4 of the affidavit that the answers given
by the respondents are contradictory and
insufficient and thereby, he requested the court to
order the appearance of the respondents for a viva
voce examination. This is not the scheme of Rule 11
to Order XI of the Code and the said allegations are
not sufficient to invoke the jurisdiction of the
court under the said provision. It is true that the
petitioner has filed the said application under Rule
2 of Order XIX as well. A direction under Order XIX
cannot be sought by alleging non-compliance with an
order passed under Rule 1 of Order XI.
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15. In view of the above discussion, this court
finds no illegality in the impugned order. However,
during the course of the hearing, the learned
counsel for the petitioner made a laborious effort
to explain how the respondents flouted the orders of
the court. Keeping in mind the laudable object of
Order XI of the Code and the circumstance in which
the petitioner has made Ext.P12 application, it is
only just and proper to permit the petitioner to
make a proper application under Order XI of the
Code.
16. In the result, the original petition is
disposed of as follows:
(i)There is no illegality in Ext.P13 order
passed by the Sub Court.
(ii) However, if the petitioner submits a
proper application under Order XI of the Code
within a period of two weeks from the date of
receipt of a certified copy of this judgment,
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the Sub Court shall consider the same and pass
appropriate orders, before proceeding with the
trial of the suit.
(iii) Considering the undue delay that
occurred in the disposal of the suit owing to
the pendency of this original petition, the Sub
Court shall make all efforts to dispose of the
suit within a period of three months from the
final disposal of the application, if any,
filed by the petitioner under Order XI of the
Code.
Sd/-
P.KRISHNA KUMAR
JUDGE
sv
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APPENDIX OF OP(C) 3329/2017
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO 230/2011
ON THE FILE OF SUB COURT, CHERTHALA DTD
3/11/2011
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT IN OS
NO.230/2011 ON THE FILE OF SUB COURT,
CHERTHALA.
EXHIBIT P3 TRUE COPY OF THE IA NO.94/2016 IN OS
EXHIBIT P4 TRUE COPY OF THE ANSWER TO EXHIBIT P3 DTD
1/7/2016
EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT IN OS
EXHIBIT P6 TRUE COPY OF THE AFFIDAVIT IN OS
NO.230/2011 DTD 25/8/2016
EXHIBIT P7 TRUE COPY OF THE AFFIDAVIT IN ANSWER TO
EXHIBIT P3 INTERROGATORIES FILED BY THE
7TH DEFENDANT
EXHIBIT P8 TRUE COPY OF THE AFFIDAVIT IN ANSWER TO
EXHIBIT P3 INTERROGATORIES FILED BY THE
8TH DEFENDANT
EXHIBIT P9 TRUE COPY OF THE AFFIDAVIT IN ANSWER TO
EXHIBIT P3 INTERROGATORIES FILED BY THE
9TH DEFENDANT
EXHIBIT P10 TRUE COPY OF THE AFFIDAVIT IN ANSWER TO
EXHIBIT P3 INTERROGATORIES FILED BY THE
10THE DEFENDANT
EXHIBIT P11 TRUE COPY OF THE AFFIDAVIT IN ANSWER TO
EXHIBIT P3 INTERROGATORIES FILED BY THE
11TH DEFENDANT
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EXHIBIT P12 TRUE COPY OF THE PETITION
EXHIBIT P13 TRUE COPY OF THE ORDER DTD 1/11/2017 IN
IA NO 74/2017 IN OS NO 230/2011 ON THE
FILE OF SUB COURT, CHERTHALA.
