High Court Kerala High Court

Prabhakaran vs Sajini on 8 December, 2009

Kerala High Court
Prabhakaran vs Sajini on 8 December, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 30861 of 2009(O)


1. PRABHAKARAN, S/O.PILASSERI GOPALAN,
                      ...  Petitioner

                        Vs



1. SAJINI, D/O.PILASSERI GOPALAN,
                       ...       Respondent

2. PADMINI, D/O.PILASSERI GOPALAN,

3. SREENIVASAN,S/O.PILASSERI GOPALAN,

4. SHYLAJA, D/O. PILASSERI GOPALAN,

5. SIDHIQUE,

6. DR.K.P.SOORAJ,

7. ARUNA, PUTHUSSERI THEKKEKANDI

8. DR.K.S.CHANDRAKANTH,

9. DR.K.PAVITHRAN,

10. NARAYANAN,

                For Petitioner  :SRI.NIRMAL. S

                For Respondent  :SRI.K.M.FIROZ

The Hon'ble MR. Justice S.S.SATHEESACHANDRAN

 Dated :08/12/2009

 O R D E R
                                                                  "C.R"


                   S.S.SATHEESACHANDRAN, J.
                   -----------------------------------
                  W.P.(C).No.30861 of 2009 - O
                   ---------------------------------
             Dated this the 8th day of December, 2009

                            J U D G M E N T

Writ petition is filed seeking the following reliefs:

“i) To issue a writ of certiorari callin for the

records of Exhibit P1 and quash the original of the

same.

ii) To issue a writ, order or direction, directing

the Sub Court, Kozhikode to afford another opportunity

to the petitioner to comply with the order dated

26.08.2008 to answer the interrogatories.”

2. Petitioner is the first defendant in O.S.No.100 of 2007

on the file of the Sub Court, Kozhikode. Suit is one for partition

and the first respondent is the plaintiff and other respondents,

codefendants in the suit. After the written statement was filed by

the petitioner/first defendant resisting the suit claim first

respondent/plaintiff moved an application to serve interrogatories

on the first defendant to elicit answers to some of the questions

raised. Ext.P3 is the copy of that application to which the

petitioner/first respondent filed Ext.P4 objections. Negativing

W.P.(C).No.30861 of 2009 – O

2

the objections raised by the petitioner court below directed him

to answer the interrogatory. Since interrogatories were not

answered as directed, on the application moved by the first

respondent/plaintiff to struck off the defence, learned Munsiff

after hearing both sides passed Ext.P11 order striking out the

defence of the first petitioner/defendant for noncompliance of the

order issued to answer the interrogatories under Ext.P3

application. Ext.P11 is the copy of that order. Propriety and

correctness of P11 order is challenged in the writ petition

invoking the supervisory jurisdiction vested with this Court under

Article 227 of the Constitution of India.

3. I heard the counsel for the petitioner and also the first

respondent/plaintiff.

4. A preliminary objection was raised by the learned

counsel for the first respondent that the impugned order falls

under Order XI Rule 21 of the Code of Civil Procedure from which

an appeal is entertainable under Order XLIII Rule 1(f) of the Code

of Civil Procedure. That being so, according to the learned

counsel, the writ petition filed invoking the supervisory

jurisdiction under Article 227 of the Constitution of India is not

W.P.(C).No.30861 of 2009 – O

3

entertainable. True, when an alternative efficacious remedy is

available by way of an appeal, normally, this Court will be slow to

interfere with the order passed by a subordinate court. However,

where there is glaring jurisdictional infirmity in the order of the

subordinate court which is challenged by way of a writ petition

invoking the supervisory jurisdiction of this Court nothing

prevents this Court, even the availability of an alternative

efficacious remedy of an appeal, to examine the correctness and

propriety of that order and pass appropriate orders which are

necessary to advance the ends of justice. Perusing the impugned

P11 order passed by the court below it is seen that the court

below has not taken into account the circumstances under which

the case of the plaintiff or of defence of the defendant can be

struck off for the reason of noncompliance of the order directing

for furnishing answers to interrogatories. In M/s. Barber

Sewing Machine Co. v. Trilok Nath Mahajan (AIR 1978 SC

1436) the apex court has held that “an order striking out the

defence under Order XI Rule 21 should not be made unless there

has been obstinacy or contumacy on the part of the defendant or

wilful attempt to disregard order of the court, to produce the

W.P.(C).No.30861 of 2009 – O

4

documents”. It is well settled that the stringent provisions of

Order XI Rule 21 should be applied only on extreme cases where

there is wilful and deliberate default on the part of the defendant

to disregard the orders of the court. Merely for the reason that

an order had been passed on an application of one or other party

for serving interrogatories on the other, and failure of the party

who had been directed to answer such interrogatories the court

cannot pass an order to strike out his defence. The court has to

examine whether there was obstinacy amounting to wilful and

deliberate disobeyance of the order of the court which warrants

striking of his defence. No such enquiry or finding thereof has

been entered by the learned Munsiff while passing Ext.P11 order.

That being so, Ext.P11 order, no doubt suffers from jurisdictional

infirmity and it is liable to be set aside. Then examining Ext.P3

application of the first respondent/plaintiff it is seen what she has

sought for by way of interrogatories is details of the transactions

which are alleged to have been carried out by the first defendant

in respect of the plaint properties with particulars of the

documents and also the names of the vendees to whom such

properties had been transferred. In Ext.P4 objections the first

W.P.(C).No.30861 of 2009 – O

5

defendant had contended that all the vendees are in the party

array, and also the documents have been produced by them, and

nothing more remain for him to be furnished in answer to the

interrogatories. It appears, when the plaintiff moved an

application to strike out the defence of the first defendant for

noncomplying with the order to serve interrogatories, the learned

Additional Sub Judge failed to examine the question whether the

interrogatories sought for deserved to be answered by the

defendant in the light of the objections canvassed by him that all

the vendees are in the party array and they have produced their

documents. Setting aside Ext.P11 order I direct the learned Sub

Judge to consider Ext.P10 application afresh taking note of the

observations made above and dispose the application in

accordance with law.

Writ petition is disposed of as above.

S.S.SATHEESACHANDRAN,
JUDGE.

bkn/-