Dismissed

Dr.Dileep Kumar P.P v. Mary Paulose

Kerala HC28 Sept 2021OP(C)/1651/2018

Case brief

AI extract

What is this about?

In O.P(C) No.1651 of 2018, the High Court of Kerala dismissed an original petition for default. The petitioner had relinquished legal representation with no new counsel assigned. The court relied on a precedent stating a plaintiff cannot compel answers to interrogatories and available remedies lie in dismissal of suit or presumption under Evidence Act.

What the court decided

AI extract

Dr.Dileep Kumar P.P Vs Mary Paulose — Contract and Commercial Disputes | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

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TUESDAY, THE 28^TH DAY OF SEPTEMBER 2021 / 6TH ASWINA, 1943

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OP(C) NO. 1651 OF 2018

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AGAINST THE ORDER DATED 24-03-2018 IN I.A NO.4351/2017 IN OS 1187/2016 OF PRINCIPAL MUNSIFF COURT, ERNAKULAM.

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PETITIONER/PETITIONER/PLAINTIFF :

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DR.DILEEP KUMAR P.P, AGED 44 YEARS, S/O.DR.N.PURUSHOTHAMAN, AMBUJA NIVAS, UDAYAMPEROOR.P.O., ERNAKULAM DISTRICT-682 307

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BY ADVS. SRI.V.G.ARUN SRI.ARJUN RAGHAVAN SRI.ADITHYA RAJEEV SRI.T.R.HARIKUMAR

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RESPONDENTS/RESPONDENTS/DEFENDANTS :

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1 MARY PAULOSE, AGED 59 YEARS, W/O PAULOSE, ORAKKOTTU HOUSE, IRUMBANAM.P.O., ERNAKULAM DISTRICT - 682 305.

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2 SREEDEVI, W/O.SATHEESAN, VENNIPARAMBIL HOUSE, UDAYAMPEROOR.P.O., ERNAKULAM DISTRICT, PIN-682 307

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3 SATHEESAN, S/O.VASUDEVAN VENNIPARAMBIL HOUSE, UDAYAMPEROOR.P.O., ERNAKULAM DISTRICT, PIN-682 307

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BY ADVS. SRI.C.P.JOHNY (ERNAKULAM) SRI.K.J.KURIACHAN SRI.K.J.KURIACHAN SRI.SUNNY P MARKOSE

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P(Civil) No.1651 of 2018 2

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A.BADHARUDEEN, J.

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O.P(Civil) No.1651 of 2018

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Dated this the 28^th day of September, 2021

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J U D G M E N T

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Order in I.A No.4351 of 2017 in O.S No.1187 of 2016 on the file of the Principal Munsiff Court, Ernakulam is the matter under challenge in this O.P. When the matter is taken up for hearing today, Adv.T.R.Harikumar submitted that the petitioner had relinquished the vakalath and received the case bundle on 1-06-2019. On perusal of the records, no subsequent engagement is seen given.

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Today, there is no representation for the petitioner, either personally or through the newly assigned counsel. Adv.K.J.Kurian, the learned counsel appearing for the contesting respondents would submit that the suit is pending for trial because of the pendency of this matter and the stay order in force.

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On perusal of the subject matter involved herein, the same is dismissal of I.A No.4351 of 2017 filed by the plaintiff to get answers to the interrogatories which were asked in an earlier

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O.P(Civil) No.1651 of 2018 3

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petition. In the decision reported in Sreejith Varma v. Poonjar Koyikkal Royal Family Trust (2020(4) KLT 792), it has held by this Court that the plaintiff cannot compel the defendant to answer the queries. Going by Order XI Rule 21, the remedy available to the party who did not receive proper answers to the interrogatories is as under :

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(1) Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect and an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard.

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(2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action.

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Apart from that, the party can also seek for a presumption in his favour, as provided under Section 114 (g)of the Evidence Act. Instead of opting the above reliefs, filing an application for taking more vivid answers to the earlier interrogation is not mandated by the provision. In view of the

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O.P(Civil) No.1651 of 2018 4

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matter, challenge against Ext.P12 is not legally sustainable too.

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Since the original petitioner is not interested to proceed

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with the matter after getting relinquished his vakalath, this petition can only be dismissed.

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Hence this original petition is dismissed for default.

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A. BADHARUDEEN, JUDGE

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amk

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O.P(Civil) No.1651 of 2018 5

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APPENDIX OF OP(C) 1651/2018

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PETITIONERS' EXHIBITS :

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EXT.P1	COPY OF THE DOCUMENT NO.1623/1/2016
	DATED 14/07/2016 OF TRIPUNITHURA SRO
EXT.P2	COPY OF THE DOCUMENT NO.1154/1/2005
	DATED 07/03/2005 OF TRIPUNITHURA SRO
EXT.P3	COPY OF THE PLAINT DATED 03/09/2016 IN OS.NO.1187 OF 2016 FILED BEFORE THE PRINCIPAL MUNSIFF'S COURT, ERNAKULAM.
EXT.P4	COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST DEFENDANT DATED 15/12/2016 IN OS.NO.1187 OF 2016
EXT.P5	COPY OF THE WRITTEN STATEMENT FILED BY DEFENDANTS 2 AND 3 DATED 16/12/2016 IN OS.NO.1187 OF 2016
EXT.P6	COPY OF THE COMMISSION REPORT ALONG WITH SKETCH FILED IN OS.NO.1187 OF 2016 DATED 11/11/2016
EXT.P7	COPY OF THE INTERROGATORY DATED 30/1/2017 FILED BY THE PETITIONER IN OS.NO.1187 OF 2016
EXT.P8	COPY OF THE AFFIDAVIT FILED BY THE 2ND DEFENDANT DATED 01/04/2017 IN
	IA.NO.732/2017 IN OS.NO.1187 OF 2016

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O.P(Civil) No.1651 of 2018 6

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EXT.P9 COPY OF THE AFFIDAVIT FILED BY THE 3RD DEFENDANT DATED 01/04/2017 IN IA.NO.732/2017 IN OS.NO.1187 OF 2016 EXT.P10 COPY OF THE IA.NO.4351/2017 IN OS.NO.1187 OF 2016 FILED BY THE PETITIONER DATED 05/07/2017 EXT.P11 COPY OF THE COUNTER AFFIDAVIT FILED BY DEFENDANTS 2 AND 3 DATED 16/02/2018 IN IA.NO.4351/2017 IN OS.NO.1187 OF 2016 EXT.P12 COPY OF THE ORDER DATED 24/03/2018 IN IA.NO.4351/2017 IN OS.NO.1187 OF 2016.

Dr.Dileep Kumar P.P v. Mary Paulose

Case brief

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Dr.Dileep Kumar P.P v. Mary Paulose

Case brief

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