GAUHATI HIGH COURT JUDGMENTS

TRIPURA GRAMIN BANK Vs. BIJAN BHATTACHARJEE AND OTHERS [GHC] – 09/12/1997

Documentary evidence to be produced (at or before the settlement of issues ) – 1. The parties or their pleaders shall produce, (at or before the settlement of issues ), all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all document which the Court has ordered to be produced.

(1998) 1 GauLJ 81 : (1998) 1 GauLT 347

GAUHATI HIGH COURT

(AGARTALA BENCH)

SINGLE BENCH

( Before : N.G. Das, J )

TRIPURA GRAMIN BANK Vs. BIJAN BHATTACHARJEE AND OTHERS 

Civil Revision No. 10 of 1997

Decided on : 09-12-1997

Civil Procedure Code, 1908 (CPC) – Order 11 Rule 1, Order 11 Rule 15, Order 13 Rule 1, Order 7 Rule 14, Order 8 Rule 10, Order 8 Rule 8A(1), Order 9 Rule 6, Section 115, Section 115(1)

Cases Referred

The Rajasthan Golden Transport Co. (Pvt.) Ltd. Vs. Avon Footwear Industries Pvt. Ltd., AIR 1986 Delhi 286 : (1986) 29 DLT 442

Counsel for Appearing Parties

B.B. Deb and A.K. Deb, for the Appellant; K.N. Bhattacharjee, S. Bhattacharjee and S.B. Dutta, for the Respondent

JUDGMENT

N.G. Das, J.—This application in revision u/s 115 of CPC is directed against the order of learned Civil Judge (Senior Division), Kailashahar, North Tripura dated 14.11.1996 passed in T.S.30 (Mortgage)/1993.

2. I have heard Mr. B.B.Deb, the learned senior counsel appearing on behalf of the Petitioner and Mr. K.N. Bhattacharjee, the learned senior counsel appearing on behalf of the Respondents.

3. To appreciate the contentions canvassed at the bar by learned Counsel for the parties the impugned order which is a very short one may be extracted as under:

Ld. Counsel for the parties are present. No witnesses is present either parties. Both parties separately prays for adjournment for the reasons stated in their petitions. Heard and considered. However both the prayers are allowed hence compel to adjourned the case today with a direction to the parties to lead oral and documentary evidence if any, for the next positively.

Ld. Counsel for the Plaintiff submits that the pltff. filed an application/interrogatories in writing on 13.6.96 with copy to the other party.

Heard Ld. Counsel for the Plaintiff on that application. But it appears to the Court that the so-called interrogatories were filed by the Plaintiff in belated stage therefore, liable to be dismissed. Hence the petition dated 13.6.96 of the Plaintiff stands rejected.

To 20.12.96 for P.H. (Evidence of both parties ).

4. Mr. K.N.Bhattacharjee, the learned senior counsel appearing on behalf of the Respondents has at the very outset submitted that such an application u/s 115 of CPC is not maintainable chiefly because it is an interlocutory order and hence this order does not come within the purview of Section 115 of CPC for revision. Mr. Deb the learned senior counsel appearing on behalf of the Petitioner on the other hand, has contended that a bare perusal of the impugned order will show that learned trial Court rejected the prayer not because that the interrogatories which were submitted by the Plaintiff were not in conformity with the law but because those were, according to the Court, submitted at a belated stage.

5. Mr. K.N.Bhattacharjee has, however, placed reliance upon a decision of the Delhi High Court to show that such an interlocutory order is not revisable. The decision referred to by Mr. Bhattacharjee is a decision rendered in the case of The Rajasthan Golden Transport Co. (Pvt.) Ltd. Vs. Avon Footwear Industries Pvt. Ltd.,

6. I have gone through the judgment and I am of opinion that this decision does not say that each and every interlocutory order is not revisable. What is emphasized by the learned Judge is that such an interlocutory order is not revisable under the provision of Section 115 of CPC unless the order suffers from the infirmities specified in Clause (a) and or Clause (b) to the proviso. The substance of the observation of the learned Judge in this respect as would be available under para 13 of the judgment may be quoted as under:

The main object of delivering interrogatories by a party is to discover facts in order to facilitate the proof of his own case. However, the power to allow interrogatories to be administered by one party to another is always subject to the discretion of the Court. The discretion extends to allowing or refusing particular interrogatories. The Court of Appeal will not likely interfere with the Judge’s exercise of his discretion, unless he acts on a wrong principle. That besides, it is well-settled that interrogatories must be confined to the matter which are in issue or sufficiently material at the particular stage of the action at which they are sought to be delivered or to the relief claimed. The proviso to Order XI, Rule 1 in terms states that the interrogatories which do not relate to any matter in question in the suit shall be deemed irrelevant notwithstanding that they might be admissible on the oral cross-examination of a witness.

7. From the above quoted observation of the learned Judge it is clear that the trial Court passed the order on the application of the interrogatories on merit. It is also clear from the facts as stated under para 5 of the judgment that the learned Addl. District Judge vide impugned order granted leave to the Defendants to deliver interrogatories at Sl. Nos. 2, 3, 4 and 8 but disallowed the rest of the interrogatories. This fact clearly indicates that the learned Addl. District Judge i.e. the trial Court passed order on merit. Here the case is a little different and hence that decision does not help the Respondents.

8. Here on going through the order-sheets I find that the learned trial Court granted a good number of adjournments to the Defendants for filing written statement and thereafter by his order dated 18.11.95 the learned trial Judge allowed the Defendants time as a last chance to file written statement fixing the date on 15.12.95 for written statement/judgment under Order Rule 10 of CPC The order of learned Judge passed on 18.11.95 may be quoted as under:

Both the sides are present through their engaged counsel.

The Defendants pray for time to file the written statement.

It appears from the case records that sufficient time was given to the Defendants to file the written statement, but they did not do so on this or that pretext.

However, a last and last chance is given to the Defendants to file the written statement on the next date failing which the suit will be disposed of under Order 8 Rule 10 of CP Code.

To 15.12.95 for W. S/Judgment under Order 8 Rule 10 of the C.P.Code.

9. The case was accordingly taken up on 15.12.95 and on this date the learned trial Judge framed the issues fixing the suit on 20.1.1996 for P.H.

10. Now the question which needs consideration is whether the order which the learned trial Judge passed on 18.11.95 was in consonance with the provisions of CPC I have already stated above that the learned trial Judge fixed the date on 15.12.95 for written statement/judgment under Order 8 Rule 10 of Code of Civil Procedure. I really failed to understand how that date can be fixed for a judgment under Order 8 Rule 10 of CPC as the order-sheets do not indicate that the learned Judge from his own accord passed any order requiring the Defendants to file the written statement.

11. Order 8 Rule 10 CPC reads:

10. Procedure when party fails to present written statement called for by Court. – Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment, a decree shall be drawn up.

12. A perusal of the provisions as quoted above will make it clear that such a course can be adopted only when a party fails to present a written statement called for by the Court. Here in the present case, as I have already mentioned above that there is no order to the effect that the Defendants were required/directed to submit their written statement. If such a course is adopted then there will be no scope for exparty hearing as provided under Order 9 Rule 6 of CPC Not only this Order 13 Rule 1 will also be ignored in case such a slip-short manner is allowed to be continued. Order 13 CPC reads:

Documentary evidence to be produced (at or before the settlement of issues ) – 1. The parties or their pleaders shall produce, (at or before the settlement of issues ), all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all document which the Court has ordered to be produced.

(2) The Court shall receive the document so produced; provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.

13. In view of the above provisions I am of the view that after receipt of the written statement the Court is to fix a date for submission of the relevant document and the Court shall receive those documents if they are accompanied by an accurate list (firisti index etc.)

14. It is however, true that document on which the Plaintiff’s suit is based are to be produced along with the plaint (Order 7 Rule 14) and the Defendants are also required under Order 8 Rules 8-A(1) to produce the relevant documents along with the written statement. But thereafter comes the provision of Order 11 Rule 15 which enables each party for inspection of the documents. The Order 11 Rule 1 also enables a party to obtain from his opponent material facts or information as to the documents or admission which will support his information or damage his opponent’s case. Therefore, by virtue of this provision a party is entitled to submit interrogatories.

15. In the instant case, on going through the entire order-sheets I find that parties were not given any opportunity for filing interrogatories. I have already quoted the relevant order which will clearly show how in a slipshod manner the learned trial Judge jumped to pass an order under Order 8 Rule 10 Code of Civil Procedure.

16. In view of the infirmities pointed out above, I am, therefore, of opinion that even though the interrogatories were submitted at a belated stage the trial Court ought not to have rejected these on the simple ground that those were submitted at a belated stage.

17. Learned trial Judge did not dispose of the application of interrogatories on merit. Therefore, for the infirmities I have pointed out above, I am of the view that the learned trial Judge ought to have disposed of the application of interrogatories on merit.

18. It is true that powers of Revisions u/s 115 of CPC have been curtailed to a great extent by the last Amendment. But even then if any order is found to have suffered from the infirmities specified in Clause (a) or (b) to the proviso to Section 115(1) of CPC then in my opinion the High Court in its revisional jurisdiction u/s 115 of CPC can very well interfere with the order. In the instant case, from my above discussions of the facts it would be abundantly clear that learned trial Judge suddenly jumped to pass an order under Order 8 Rule 10 CPC without affording any opportunity to the parties for filing the documents/interrogatories etc.

19. For all these reasons, the impugned order is set aside and learned trial Judge is directed to dispose of the application for interrogatories on merit after hearing both the parties.

20. It is submitted by learned Counsel for the parties that such error/mistake are being committed regularly by the Courts-be low. I therefore consider it expedient to sent copy of this order to all the Civil Courts in Tripura.