SYNERGY HOMES LTD Vs. JOSHY JOHN

JUDGEMENT

(1.) This civil revision arises from the judgment of learned First Additional District Judge, Ernakulam in CMA No. 55 of 2010 setting aside the order passed by the learned II Additional Munsiff, Ernakulam on IA No. 1937 of 2010 in OS No. 577 of 2009. That is a suit filed by the respondent for injunction to restrain petitioner from constructing building, as the learned counsel submits exceeding three floors alleging that since width of the road in front of the building site is less than five metres and that construction of the building beyond three floors is in violation of the relevant Building Rules. Petitioner filed written statement contending that there is no violation. During the pendency of the suit petitioner, invoking R.1 of O.11 of the Code of Civil Procedure (for short, "the Code") filed IA No. 7740 of 2009 for leave to serve interrogatories on respondent / plaintiff. In short, the questions sought to be answered by the respondent was concerning construction respondent is said to have made, according to the petitioner, in violation of the Building Rules. It is not disputed before me that learned Munsiff allowed IA No. 7740 of 2009 and permitted petitioner to serve interrogatories on the respondent. In answer to the interrogatories so served, respondent filed an affidavit which according to the petitioner was not sufficient as there was no sufficient answer given by the respondent on the material particulars with reference to the relevant questions.Thereon petitioner filed IA No. 573 of 2010 under R.11 of O.11 of the Code to direct the respondent answer further on the questions which according to the petitioner were not answered sufficiently. It is not disputed before me that IA No. 573 of 2010 also was allowed. I appears that in answer to the order on IA No. 573 of 2010, respondent filed a memo (not even an affidavit) stating whatever he had to say. It is thereafter that petitioner filed IA No. 1937 of 2010 to strike of the suit from the file for non - compliance with the orders on IA No. 7740 of 2009 and 573 of 2010. According to the petitioner, there was wilful non - compliance of orders of learned Munsiff on IA Nos. 7740 of 2009 and 573 of 2010. That application was resisted by the respondent. Learned Munsiff found that there is non - compliance with the orders passed by the Court and allowed IA No.1937 of 2010 invoking R.21 of O.11 of the Code. The suit was dismissed. Respondent challenged that order before the learned Additional District Judge in CMA No. 55 of 2010. Before the learned District Judge it was contended that unless there was something akin to obstinacy and contumacy on the part of respondent in not complying with the directions of the Court, the extreme step of dismissing the suit cannot be resorted to. That argument prevailed before the learned District Judge who allowed the C. M. Appeal and set aside order on IA No.1937 of 2010. Petitioner is aggrieved by the judgment of learned District Judge. It is argued by the learned counsel that there was total disobeyance of the orders by the respondent as is evident from the records and in particular, the answers he has given to IA Nos.7740 of 2009 and 573 of 2010. It is also pointed out that respondent who did not challenge the orders on IA Nos.7740 of 2009 and 573 of 2010, not only did not give sufficient answers to the interrogatories served but, in answer to IA No. 573 of 2010 did not even care to file an affidavit but chose to file a memo stating that questions are either irrelevant or are already answered. In the circumstances, learned District Judge should have held that there was obstinacy and contumacy on the part of the respondent in complying with the orders of the Trial Court which enabled the Trial Court to dismiss the suit invoking R.21 of O.11 of the Code.

(2.) Learned counsel for respondent contends that interrogatories are not relevant for adjudication of the dispute involved and at any rate, non - answering of the interrogatories in the way petitioner wished is not sufficient to non - suit the respondent. Reliance is placed on the decisions in Raj Narain v. Smt. Indira Nehru Gandhi and Another, 1972 KHC 648 : 1972 (3) SCC 850 : AIR 1972 SC 1302 : 1972 (3) SCR 84 and Ms.Babbar Sewing Machine Co. v. Tirlok Nath Mahajan, 1978 KHC 620 : AIR 1978 SC 1436: 1978 (4) SCC 188 .

(3.) It is not disputed before me that learned Munsiff passed orders on IA No.7740 of 2009 under R.1 of O.11 of the Code and on IA No. 573 of 2010 under R.11 of that Order. It is also not disputed that the said orders remain in force. Therefore, it is not open to the respondent to contend in this proceeding, at this stage, that interrogatories are either irrelevant or, that he has given sufficient answers in answer to the interrogatories served on him vide the order on IA No. 7740 of 2009. The contention to the contrary raised by the learned counsel in the circumstances has to be rejected.