IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 28TH JANUARY 2011 / 8TH MAGHA 1932 OP(C).No. 403 of 2011(O) AGAINST THE ORDER DATED 18/11/2010 IN IA.962/2010 IN OS.39/2010 OF MUNSIFF'S COURT, KOCHI PETITIONERS ---------------------- 1. A.X.THOMAS, S/O.LATE A.T.XAVIER, AGED 69 YEARS, RESIDING AT KOODARAM HOUSE, PADAMUGHAL, KAKKANADU, KOCHI. 2. A.X.VARGHESE, S/O.LATE A.T.XAVIER, AGED 61, ARAKKAL HOUSE, NAYARAMBALAM, KOCHI. 3. A.X.JOSEPH, S/O.LATE A.T.XAVIER, AGED 59 YEARS, RESIDING AT VENNALA DESOM, PLACED AS CHAIRMAN AND MANAGING DIRECTOR KITCO, PALLIMUKKU, ERNAKULAM. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.ARJUN S.RAJ SRI.ADEEP ANWAR RESPONDENTS: --------------- 1. A.X.VALSA, W/O.LATE ALLAPPAN, AGED 66 YEARS, RTD. A.E.O., PADMANABHAN HOUSE, KODUNGALLOR, PIN- 680664. 2. A.X.GRACY, W/O.THOMAS K.J., AGED 65 YEARS, RETD. PRINCIPAL, HIGHER SECONDARY SCHOOL, KANNANKERRIL HOUSE, RESIDING AT H.NO.20, GCDA COLONY, VADUTHALA, KOCHI-682023. 3. A.X.ANNIES, W/O.GEORGE THOMAS, AGED 64 YEARS, RTD. AEO VARIYATH HOUSE, CHERANELLOOR VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT-682 034. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 403 OF 2011 O ------------------------------------------------------ Dated this the 28th day of January, 2011 JUDGMENT The defendants in O.S.No.39 of 2010, Munsiff's Court, Kochi, challenge the order dated 18.11.2010 in I.A.No.962 of 2010, by which the court below allowed the application filed by the plaintiffs under Rule 1 of Order XI of the Code of Civil Procedure and directed the third defendant to answer the interrogatories. 2. The plaintiffs are the sisters of the defendants. Their father executed a Will in favour of the plaintiffs and defendants. There are certain stipulations in the Will as to how the different extent of properties allotted to different parties should be enjoyed and in what manner entrance should be provided to those plots. Disputes arose between the parties. Therefore, the plaintiffs have filed the suit for the following reliefs: “a) Declaring that each of plaintiffs are entitled to use the gate fixed by their father, on the western boundary of plaint B schedule property the testator of the Will No.1/1989 of SRO Narakkal for the purpose of ingress and egress to plaint 'A' O.P.(C) NO.403 OF 2011 O :: 2 :: schedule items I to III allotted to them as per the Will through plaint 'C' schedule items I to III pathways, respectively. b) Restraining the defendants by means of a permanent prohibitory injunction from obstructing the plaintiffs' free entry to plaint 'A' schedule items I to III through the 'C' schedule items I to III pathways, by closing or locking the gate fixed at its western end and also causing any obstruction and inconvenience in the enjoyment of plaint 'C' schedule pathway. c) Directing the defendants by means of a mandatory injunction to demolish the Kennel constructed blocking the 'C' schedule pathway and all other obstructions in the use of a vehicle through 'C' schedule pathway. d) Allow all costs of the suit. e) Such other reliefs the plaintiff may pray for and this Hon'ble Court may deem fit and proper to grant.” 3. The plaintiffs filed I.A.No.962 of 2010 under Rule 1 of Order XI of the Code of Civil Procedure to grant leave to the plaintiffs to O.P.(C) NO.403 OF 2011 O :: 3 :: deliver interrogatories to be answered by the third defendant. There are ten interrogatories to be answered by the third defendant. A counter affidavit was filed by the first defendant. It is stated in the affidavit that the counter affidavit is filed on behalf of the other defendants as well. It was contended that the interrogatories are irrelevant. It is also contended that Rules 1 and 2 of Order XI do not authorize serving of interrogatories like those which were served on them. 4. The court below considered the objections and held that there is no merit in the contentions raised by the defendants. The court below held that the interrogatories are relevant and they are necessary for the effective adjudication of the suit. Accordingly, the application was allowed and the third defendant was directed to give answer to the interrogatories within two weeks. As stated earlier, the order was passed on 18.11.2010. 5. The learned counsel for the petitioners contended that Rule 2 of Order XI provides that particular interrogatories proposed to be delivered shall be submitted to the court. The court shall decide to grant leave to answer only those of the interrogatories which are O.P.(C) NO.403 OF 2011 O :: 4 :: considered necessary either for disposing fairly of the suit or for saving costs. The counsel submitted that in the order impugned, the court below has not stated which of the interrogatories should be answered by the third defendant. It is submitted that the court did not apply its mind to the propriety or otherwise of the interrogatories with reference to the issues involved in the case and the contentions of the parties. 6. I have gone through the plaint, the written statement, the affidavit in support of I.A.No.962 of 2010 and the counter affidavit therein. I am not inclined to accept the contention put forward by the petitioners. I agree with the conclusion arrived at by the court below that the interrogatories are relevant for disposing fairly of the suit. The questions are not irrelevant. On the other hand, they are relevant to the adjudication of the questions involved in the suit. The order passed by the court below specifically directs the third defendant to give answer to the interrogatories. That means, the third defendant has to answer all the interrogatories given in the application. Had the court below thought that any particular interrogatory should be excluded, the court would have specifically stated so. It is not necessary for the court to say that particular items O.P.(C) NO.403 OF 2011 O :: 5 :: in the list of interrogatories should be answered, if the court allows that application in respect of all the interrogatories. The order makes it clear that the court below wanted the third defendant to answer all the interrogatories. 7. For the aforesaid reasons, I am of the view that there is no merit in the Original Petition. No interference is called for. The order passed by the court below is legal and proper. For the aforesaid reasons, the Original Petition is dismissed. Lastly, the counsel submitted that for answering the interrogatories, a reasonable time may be granted to the petitioners. If a request is made by the petitioners in that behalf, the court below will consider the same taking into account the fact that the order passed by the court below was under challenge in the Original Petition. (K.T.SANKARAN) Judge ahz/