Baburaj.K & Solamon.K v Madhusoodhanan.K & others

1 OP(C) No.359 of 2023 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 10[TH] DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944** ## **OP(C) NO. 359 OF 2023** **AGAINST THE ORDER/JUDGMENT IN IA 8/202 IN OS 30/2019 OF SUB COURT, PAYYANNUR** ## **PETITIONER/S:** - **1 BABURAJ.K,AGED 60 YEARS,S/O.KARUNAKARAN, , CHALIL HOUSE, PUKKAL, CRPF CAMP (P.O), ALAPPADAMBA AMSOM DESOM, ARAVANCHAL, KANNUR DISTRICT-670353,** - **2 SOLAMON.K,AGED 54 YEARS,S/O.KARUNAKARAN, , MADHUMANDIRAM, NEAR GOVT. HOSPITAL, PERINGOME AMSOM DESOM, PERINGOME.P.O., KANNUR DISTRICT-670307,** - **BY ADVS.** - **K.R.ARUN KRISHNAN DEEPA K.RADHAKRISHNAN JISSMON A KURIAKOSE SANAL C.S** ## **RESPONDENT/S:** - **1 MADHUSOODHANAN.K,AGED 52 YEARS,S/O.KARUNAKARAN, MADHUMANDIRAM, PERUVAMBA, OLAYAMBADI (P.O), M.M.BAZAR VIA. KANNUR DISTRICT-670306, PIN - 670306** - **2 SHAJI MON.K,AGED 50 YEARS,S/O.KARUNAKARAN, MALAVIKA SADAN, KURUKKOOTTI,ALAPPADAMBA AMSOM DESOM.KANNUR DISTRICT-670307,** - **3 LALITHAKUMARI.B,AGED 62 YEARS,D/O.KARUNAKARAN, LALITHA BHAVAN, KARAD PARAMBA (P.O), VAZHAYOOR AMSOM DESOM,FAROOK COLLEGE VIA, MALAPPURAM DISTRICT.-673010, PIN - 673010** - **4 RAMANI.B,,AGED 58 YEARS,D/O.KARUNAKARAN, MADHUMANDIRAM, MADAKKAMPOYIL, PERINGOME AMSOM DESOM, PERINGOME (P.O), KANNUR DISTRICT-670307,** - **5 VASUNDHARAN.K,AGED 56 YEARS,S/O.KARUNAKARAN, ARUN NIVAS, K.P.NAGAR, PERINGOME AMSOM DESOM,PERINGOME (P.O), KANNUR DISTRICT-670307, PIN - 670307** - **6 KODOOR VEETTIL THANKAMANI,AGED 51 YEARS W/O.MADHUSOODHANAN.K, MADHUMANDIRAM, PERUVAMBA, KUTTOOR) AMSOM DESOM, OLAYAMBADI (P.O), M.M.BAZAR VIA.KANNUR DISTRICT-670306,** - **7 MAYA MADHUSOODANAN @ MAYA AJESH,AGED 32 YEARS D/O.MADHUSOODANAN.K, MADHUMANDIRAM, PERUVAMBA, KUTTOOR AMSOM DESOM, OLAYAMBADI (P.O), M.M.BAZAR VIA. KANNUR DISTRICT-670306,** - **8 MANJU MADHUSOODANAN,AGED 26 YEARS,D/O.MADHUSOODANAN.K, MADHUMANDIRAM, PERUVAMBA,KUTTOOR AMSOM DESOM, OLAYAMBADI (P.O), M.M.BAZAR.VIA., KANNUR DISTRICT-670306, PIN - 670306** - **9 PUTHIYA VEETTIL PRADEEPAN,AGED 40 YEARS S/O.KUNHIRAMAN, PALIYERI, KARIVELLUR AMSOM DESOM, KARIVELLUR.P.O., KANNUR DISTRICT-670521, PIN - 670521** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10.02.2023, THE COURT ON THE** **SAME DAY DELIVERED THE FOLLOWING:** 2 OP(C) No.359 of 2023 ## **C.S.DIAS, J.** =-=-=-=-=-=-=-=-=-=- ## **OP(C) No.359 of 2023** =-=-=-=-=-=-=-=-=-=-=-=-=-= ## **Dated this the 10[th] day of February, 2023.** ## **JUDGMENT** Confronted with Ext P10 order passed in IA No.8/2022 in OS No.30/2019 by the Court of the Subordinate Judge, Payyannur, the plaintiffs in the suit have filed the original petition. The respondents are the defendants in the suit. 2. The thumbnail sketch of the background facts leading to Ext P10 order are: the petitioners have filed the above suit, for a decree for partition. The respondents 1 to 4 have filed Exts P2 to P5 written statements opposing the suit. The petitioners had earlier filed IA No.822/2019 (Ext P6) for the appointment of a receiver. The application was opposed by the first respondent through Ext P7 counter affidavit. Later, the petitioners filed IA No.8/2022 (Ext P8) under Order 11 Rules 11 and 12 of the Code of Civil Procedure (in short, ‘Code’) to direct the respondents to furnish certain information. The said application was also objected to by the 3 OP(C) No.359 of 2023 respondents 1 and 6 to 9 by filing Exts P9 written objection. The court below, by the impugned Ext P10 order, has dismissed Ext P8 application. By Ext P11 judgment, this Court has directed the expeditious disposal of the suit. Ext P10 is palpably wrong and erroneous. Hence, the original petition. 3. Heard; Sri.K.R Arun Krishnan, the learned counsel appearing for the petitioners on admission. 4. Is there any illegality in Ext.P10 order? 5. The suit is filed for partition. The respondents have opposed the suit cardinally on the ground that the property is not partible. 6. At the instance of the third respondent, this Court, by Ext.P11 judgment, has directed the suit to be disposed of within one year from 16.12.2021. The period has already lapsed. 7. At the trial stage, the petitioners filed Ext.P8 application under Order 11 of the Code to direct the respondents to furnish information about the properties acquired by them out of the common nucleus of the family properties because the information is 4 OP(C) No.359 of 2023 beyond their knowledge. The respondents opposed the application, _inter alia_ , contending that the information and documents sought are irrelevant for the determination of the suit; instead, the application is filed to harass them. 8. The court below dismissed the application by the impugned Ext.P10 order, holding that the details sought are irrelevant, that the petitioners can get the information from other sources and that the application is nothing but an abuse of the process of the court. 9. Section 30 of the Code of Civil Procedure reads as follows: **“30. Power to order discovery and the like** .— Subject to such conditions and limitations as may be prescribed, **the Court may, at any time, either of its own motion or on the application of any party** ,— (a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence; (b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid; (c) order any fact to be proved by affidavit”. 10. Rules 1 and 12 of Order XI of the Code of Civil Procedure, which are germane to the instant case, read thus: **“1. Discovery by interrogatories** .—In any suit the plaintiff or defendant by leave of the Court may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties, and such interrogatories 5 OP(C) No.359 of 2023 when delivered shall have a note at the foot thereof stating which of such interrogatories each of such person is required to answer: Provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose: **Provided also that interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness”.** **12. Application for discovery of documents.—** Any party may, without filing any affidavit, apply to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. **On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion be thought fit:** Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs. (emphasis given) 11. A reading of the above provisions reveals that an application for discovery can be permitted by the Court at any time, provided they relate to matters that are relevant in the suit and are necessary at that particular stage of the suit. 12. Under the Code, discovery means a formal pre-trial process whereby the parties to the suit are given an opportunity to collect information from the adversary, which can be used for the trial. The information sought through the questions is termed ‘discovery by interrogatories’, and the documents sought 6 OP(C) No.359 of 2023 are termed ‘ **discovery of documents’** under Rules 1 and 12 of the Order XI of the Code. Schematically, the above process is to be completed before the commencement of the trial. 13. The language of the above provisions and the profusion of precedential authority on the point establish that the purpose of discovery is to seek admission of a party on matters in dispute in the suit, prune the issues, cut short the enquiry and facilitate the expeditious disposal of the suit. If the application fulfils the parameters of the above provisions, the Court is called upon to judiciously exercise its powers to decide whether the information sought has some nexus or relevancy with the dispute in question. Under the cloak of the above provisions, parties cannot be permitted to have a roving enquiry and ask anything and everything which are not germane to the suit. Ultimately, it is the prerogative and discretion of the court to decide whether the application is to be allowed. 14. In **Raj Narain v. Indira Nehru Gandhi ((1972) 3 SCC 850),** the Honourable Supreme Court held as follows: 7 OP(C) No.359 of 2023 “26. Questions that may be relevant during cross-examination are not necessarily relevant as interrogatories. The only questions that are relevant as interrogatories are those relating to “any matters in question”, The interrogatories served must have reasonably close connection with “matters in question”. 15. This Court in **Constantine K.L and another v. Bruss** **Foods B.V and another** (2012 (2) KHC 120) has held that an application for discovery under Section 30 read with Order XI has to be preferably moved before trial. 16. Now, back to the case on hand. 17. Indisputably, the suit was filed in 2019. By Ext.P11 judgment, this Court has directed the suit to be disposed of within one year from 16.12.2021. The period has already lapsed, and the suit is listed for trial. At this stage, the petitioner has invoked the pre-trial process of discovery. 18. On finding Ext.P8 application to be irrelevant and unnecessary, the court below has declined to exercise its discretion 8 OP(C) No.359 of 2023 finding the application to be vexatious and an abuse of the process of the court. 19. It is trite; the exercise of the power of superintendence of this Court under Article 227 of the Constitution of India is to keep the courts of the District Judicature within their bounds of authority and to see that they do the duty as expected of them. The High Court is not vested with any unlimited prerogative to correct all decisions made within the limits of the jurisdiction of the subordinate courts. The exercise of this power and interfering with the orders of the courts is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also nigh settled that while acting under this Article, the High Court is not acting as an appellate court to substitute its judgment in place of the subordinate courts. 20. On an overall conspectus of facts and the law, this Court is of the considered view that the impugned Ext.P10 order is just, 9 OP(C) No.359 of 2023 proper, comprehensive and well within the bounds of authority, which does not warrant interference by this Court in the exercise of its plenary power of superintendence. The original petition fails and is consequentially dismissed. sd/- sks/10.2.2023 **C.S.DIAS, JUDGE** 10 OP(C) No.359 of 2023 ## **APPENDIX OF OP(C) 359/2023** PETITIONER EXHIBITS Exhibit P1 COPY OF PLAINT IN O.S. NO. 30/2019 ON THE FILE OF SUB COURT PAYYANNUR Exhibit P2 COPY OF WRITTEN STATEMENT OF THE 1ST DEFENDANT DATED 15/10/2019 Exhibit P3 COPY OF WRITTEN STATEMENT FILED BY THE 2ND DEFENDANT DATED 04/11/2019 Exhibit P4 COPY OF WRITTEN STATEMENT FILED BY THE 3RD DEFENDANT DATED 23/01/2020 Exhibit P5 COPY OF WRITTEN STATEMENT FILED BY THE 4TH DEFENDANT DATED 08/11/2019 Exhibit6 COPY OF I.A. 822/2019 IN O.S. 30/2019 DATED 21/09/2019 ExhibitP7 COPY OF AFFIDAVIT DATED 17/12/2020 FILED BY THE 1ST RESPONDENT Exhibit8 COPY OF I.A. I.A. 8/2022 IN OS NO. 30/2019 DATED 26/09/2022 Exhibit P9 COPY OF OBJECTION FILED BY RESPONDENTS 1 AND 6 TO 9 TO EXT P10 DATED 27/10/2022 Exhibit P10 CERTIFIED COPY OF ORDER DATED 04/01/2023 OF SUB COURT, PAYYANNUR IN I.A. NO. 8/2022 IN OS NO. 30/2019 Exhibit P11 COPY OF ORDER DATED 16/12/2021 IN O.P. (C) 1632 OF 2021 OF THIS HONOURABLE COURT