Ramla v. Khadeeja and others (OP(C) No. 316 of 2023)

OP(C) NO. 316 OF 2023 1 **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. 316 OF 2023** **AGAINST THE ORDER/JUDGMENT IN OS 171/2021 OF MUNSIFF** **COURT,MUVATTUPUZHA** ## **PETITIONER/S:** RAMLA AGED 48 YEARS W/O V.K MUHAMMED, VADAKKEPUTHANPURA HOUSE, CHERUVATTOOR POST, KAKSHAIPPADY, IRAMALLOOR VILLAGE, KOTHAMANGALAM TALUK, PIN - 686691 BY ADVS. P.M.RAFEEK SARA JOHN ## **RESPONDENT/S:** 1 KHADEEJA AGED 75 YEARS W/O LATE MAKKAR, PAROLIL HOUSE, RANDARKARA KARA, MUVATTUPUZHA VILLAGE, MUVATTUPUZHA TALUK, PIN - 686673 2 SULAIHA MAKKAR AGED 60 YEARS D/O LATE MAKKAR, CHITTETHUKUDY HOUSE, ODAKALI, ASHAMANNOOR POST, NOOLELI KARA, PIN - 683549 3 SUHARA KOYAN AGED 55 YEARS D/O LATE MAKKAR, PULICKAKUDIYIL HOUSE, MULAVOOR KARA, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK, PIN - 686673 4 FATHIMA @ KUNJATHU AGED 70 YEARS W/O LATE MAKKAR, KUDILINGAL HOUSE, MULAVOOR KARA, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK, PIN - 686673 OP(C) NO. 316 OF 2023 2 5 ABDUL KAREEM AGED 60 YEARS S/O LATE MAKKAR, KUDILINGAL HOUSE, MULAVOOR KARA, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK, PIN - 686673 6 SUBAIDA HASSAN AGED 52 YEARS W/O HASSAN, PARACKAL HOUSE, CHERUVATTOOR KARA, OORAMKUZHY, PIN - 686691 7 SAINABA KAMAR AGED 50 YEARS W/O KAMAR, VATTEKKATTUKUDY HOUSE, MULAVOOR KARA, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK, PIN - 686673 8 SALMATH SAINUDHEEN AGED 50 YEARS W/O SAINUDHEEN, ARAKKAMATTOM HOUSE, MULAVOOR KARA, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK, PIN - 686673 9 P.K KUNJUMON AGED 50 YEARS S/O NOT KNOWN, THEKKUMKATTIL HOUSE, MUDAVOOR KARA, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK, PIN - 686673 BY ADVS. ALIAS M. CHERIAN M BRISTO S PARIYARAM(K/1756/2020) VIVEK RADHAKRISHNAN(K/2164/2021) ARUN C.S.(K/000832/2022) K.M.RAPHY(K/542/2012) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 316 OF 2023 3 ## **JUDGMENT** Aggrieved by Ext.P12 order passed in I.A No.17/2023 and Ext.P13 order passed in I.A No.16/2023 in O.S No.171/2021 by the Court of the Munsiff Court, Muvattupuzha, the plaintiff in the suit has filed the original petition. The respondents are the defendants in the suit. 2. The thumbnail background facts leading to Exts. P12 and P13 orders are: the petitioner has filed the suit against the respondents for a decree of partition. It is her case that, her father, late Makkar, had three wives, who are the respondents 1 and 4 and the mother of the petitioner late Asiya. The respondents 2 and 3 and 5 are the other children of late Makkar born through the respondents 1 and 4. Makkar had extensive properties. The properties are in the joint possession of the parties. He died intestate. Hence, the petitioner instituted Ext.P1 plaint for partition. The suit is resisted by the respondents 1 to 8 through Ext.P2 written statement, inter-alia, contending that except for two cents OP(C) NO. 316 OF 2023 4 of land, the remaining properties are not available for partition. Most of the properties were transferred by Makkar. Along with Ext.P2 written statement, the respondents also produced Ext.P3 document. The petitioner filed Ext.P4 replication and the respondents have filed Ext.P5 rejoinder. After two rounds of litigation before this Court which led to the passing of Exts.P6 and P7 judgments, the suit was listed for trial. Then, the petitioner filed IA No.17/2023 (Ext.P8), under Order 18 Rule 3 of the Code of Civil Procedure (in short 'Code') to direct the respondents to begin the trial first. The application was objected to by the respondents through Ext.P9 counter affidavit. Similarly, the petitioner also filed IA No.16/2023 (Ext.P10) under Order 11 Rule 1 of the Code to grant leave to deliver interrogatories on the respondents. The said application was also resisted by the respondents by filing Ext.P11 counter affidavit. The court below, by the impugned Exts.P12 and P13 orders, dismissed Exts.P8 and P10 applications. Exts.P12 and P13, orders are ex-facie illegal OP(C) NO. 316 OF 2023 5 and unsustainable in law. Hence, the original petition. 3. Heard; Sri.P.M.Rafeek, the learned Counsel appearing for the petitioner and Sri.Alias M.Cherian, the learned Counsel appearing for the respondents. 4. The points that arise for consideration are: - (i) Is there any illegality in Ext.P13 order. - (ii) Is there any error in Ext.P12 order. 5. **Point No.1** : Ext.P1 plaint is instituted for a decree of partition. The suit is resisted by the respondents through Ext.P2 written statement, inter-alia, contending that the property is not available for partition. 6. Along with the suit the petitioner had filed IA No.1/2021, to restrain the respondents from alienating the property, which was allowed by the court below directing the respondents not to alienate the property. 7. Challenging the said order, the respondents filed OP(C) NO. 316 OF 2023 6 CMA No.21/2021 before the lower Appellate Court. The lower Appellate Court confirmed the order of injunction passed by the court below. The respondents assailed the orders before this Court in OP(C) No.2542/2021. By judgment dated 27.01.2022, this Court confirmed the concurrent findings of the courts below. However this Court directed the court below to dispose of the suit within three months from the date of receipt of the certified copy of the judgment. 8. Subsequently, the petitioner again came to this Court in OP(C) No.1265/2022, aggrieved by the framing of issues. By Ext.P6 judgment, this Court modified the issues that were framed by the court below. This Court alerted the court below to dispose of the suit as directed in OP(C) No.2542/2021. ## 9. Accordingly, the parties went to trial. 10. It is at this stage, that the petitioner filed Ext.P10 application under Order 11 Rule 1 of the Code, seeking OP(C) NO. 316 OF 2023 7 ## leave to deliver interrogatories. 11. Section 30 and Order XI of the Code deals with discovery by interrogatories. The above provisions permits the Court, at any time, to direct any party to answer interrogatories, which are relevant for the determination of the suit. 12. 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 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** OP(C) NO. 316 OF 2023 8 ## **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) 13. 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. 14. Under the Code, discovery means a formal pre-trial process whereby the parties to the suit are given an OP(C) NO. 316 OF 2023 9 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 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. 15. 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 OP(C) NO. 316 OF 2023 10 is the prerogative and discretion of the court to decide whether the application is to be allowed. 16. In **Raj Narain v. Indira Nehru Gandhi** ((1972) 3 SCC 850), the Honourable Supreme Court held as follows: “26. Questions that may be relevant during crossexamination 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”. 17. 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. 18. In the case on hand, this Court has already directed the suit to be disposed of expeditiously within three months from 27.01.2022. It is after this, the petitioner sought leave by way of Ext.P10 application. The court below finding the application to be highly belated has dismissed the same by OP(C) NO. 316 OF 2023 11 Ext.P13 order. I do not find any error in Ext.P13 order warranting interference by this Court, especially when the parties are at trial and the time period to dispose of the suit is almost over. 19. In the above legal and factual analysis I confirm Ext.P13 order. Accordingly, point No.1 is found against the petitioner. 20. **Point No.2** : the case of the petitioner in Ext.P1 plaint is that her father late Makkar had an extent of 5.10 Acres of land which is available for partition. The respondents in Ext.P2 written statement have, inter-alia, contended that item numbers 1 to 3 properties are not available for partition because the properties have already been transferred by Makkar during his life time and a certain extent has been settled in favour of the respondents. 21. Now the petitioner has filed Ext.P8 application, under Order 18 Rule 3 of the Code, to direct the respondents to begin the trial first so as to permit the OP(C) NO. 316 OF 2023 12 ## petitioner let in rebuttal evidence. 22. Order 18 Rule 3 of the Code of Civil Procedure, reads as follows: “ **Where there are several issues, the burden of proving some of which lies on the party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party;** and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case”. 23. The above provision prescribes that when there are several issues in the suit and the onus of proof lies on the party filing the suit, he may at his option either produce his evidence on those issues or reserve it to be answered after the evidence of the opposite party is let in. Thus, Order 18 Rule 3 of the Code, confers the right on a party to reserve his right to let in rebuttal evidence, and not to direct the opposite party to begin the trial. OP(C) NO. 316 OF 2023 13 24. In the case on hand, undisputably, the petitioner has sought for a partition of four items of property. The defence of the respondents is confined to the three items of property. They concede that one item is partiable. 25. In the light of the stand taken by the respondents, I am of the definite view that the initial onus of proof is on the petitioner to prove that the properties are available for partition, but with a rider that the petitioner has the right to let in rebuttal evidence, if the circumstances so warrant. Thus, reserving the right of the petitioner to let in rebuttal evidence, I confirm Ext.P12 order. Resultantly, in exercise of the powers of this Court under Article 227 of the Constitution of India, I dismiss the original petition with respect to point no.1 and dispose of the original petition with regard to point no.2 with the above direction. Sd/- **C.S.DIAS JUDGE** rkc/10.02.23 OP(C) NO. 316 OF 2023 14 ## **APPENDIX OF OP(C) 316/2023** PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF THE PLAINT IN O.S NO. 171/2021| |---|---| ||DATED 21/06/2021| |Exhibit P2|TRUE COPY OF THE WRITTEN STATEMENT FILED BY| ||RESPONDENTS' NO. 1 TO 8 DATED 10/11/2021| |Exhibit P3|TRUE COPY OF A DOCUMENT PURPORTING TO BE AN| ||UDAMBADY EXECUTED BY LATE MAKKAR DATED| ||17/01/1995.| |Exhibit P4|TRUE COPY OF THE ADDITIONAL PLEADINGS DATED| ||18/05/2022| |Exhibit P5|TRUE COPY OF THE REJOINDER FILED BY THE| ||RESPONDENTS DATED 26/05/2022.| |Exhibit P6|TRUE COPY OF THE JUDGMENT DATED 16/12/2022| ||IN O.P© 1265/2022| |Exhibit P7|TRUE COPY OF THE ORDER DATED 4/8/2022 IN| ||O.P© NO. 2542/2021| |Exhibit P8|TRUE COPY OF I.A NO. 17/2023 DATED| ||4/01/2023 IN O.S NO. 171/2021 ON THE FILES| ||OF MUNSIFF COURT, MUVATTUPUZHA| |Exhibit P9|TRUE COPY OF THE COUNTER AFFIDAVIT IN I.A| ||NO 17/2023 DATED 5/01/2023 IN O.S NO.| ||171/2021 ON THE FILES OF MUNSIFF COURT,| ||MUVATTUPUZHA| |Exhibit P10|TRUE COPY OF IA. NO 16/2023 DATED 4/01/2023| ||IN O.S NO. 171/2021 ON THE FILES OF MUNSIFF| ||COURT, MUVATTUPUZHA| |Exhibit P11|TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY| ||THE RESPONDENTS IN IA 16/2023 DATED| ||5/01/2023 IN O.S NO. 171/2021 ON THE FILES| ||OF MUNSIFF COURT, MUVATTUPUZHA| |Exhibit P12|TRUE COPY OF ORDER DATED 17/01/2023| OP(C) NO. 316 OF 2023 15 DISMISSING I.A 17/2023 IN O.S NO. 171/2021 ON THE FILES OF MUNSIFF COURT, MUVATTUPUZHA. Exhibit P13 TRUE COPY OF ORDER DATED 17/01/2023 DISMISSING I.A 16/2023 IN O.S NO. 171/2021 ON THE FILES OF MUNSIFF COURT, MUVATTUPUZHA.