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.
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W.P.(C).No.30861 of 2009 - O
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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
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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
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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
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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
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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/-