IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 205 of 2004 (M/S) Indra Bahadur Singh and others ..……… Petitioners Versus The Board of Revenue and others ……… Respondents With Writ Petition No. 70 of 2004 (M/S) Dewan Singh and others ..……… Petitioners Versus State and others ……… Respondents With Writ Petition No. 1338 of 2004 (M/S) State and others ..……… Petitioners Versus Sri Chandan Singh and others ……… Respondents Mr. Lokendra Dobhal, Advocate for the petitioners. Mr. B.C. Pandey, Senior Advocate with Mr. B.D. Pandey and Mr. J.C. Belwal, Advocate for the respondents. Mr. Sudhir Kumar, Brief Holder for the State. Hon’ble Tarun Agarwala, J. One Ganesh Singh S/o Shri Lal Singh was the bhumidhar of plot Nos. 14-A, 15, 16, 17, 18, 29, 35-B, 38, 51-B and 52-A of the Khata No. 120 area 35 bighas, 7 bishwas and 12 bishwansi situate at village Gorakhpur Mallah, Paragana and Tehsil Haldwani, District Nainital. Shri Ganesh Singh expired in the year 1950 leaving behind him his two widows, namely, Smt. Amrita Devi and Smt. Hira Devi. Their names were accordingly mutated in the revenue record as cosharers of the aforesaid plots. The petitioners are the sons of Smt. Radha Devi who is the sister of late Ganesh Singh. The petitioners filed a suit u/S 229-B /209 of the U.P. Zamindari Abolition and Land Reforms Act for declaration of their names in the revenue records and for eviction of the respondents from the land in dispute alleging that Smt. Amrita Devi, widow of late Ganesh Singh had remarried and consequently, after her re-marriage, she had no right and interest in the property in dispute left by Shri Ganesh Singh and that the entire property devolved upon Smt. Amrita Devi and, upon her 2 death, the petitioners were entitled to the property in question as the legal heirs. It was also alleged that Smt. Amrita Devi had also executed a registered will dated 12th May, 1955 in favour of the petitioners and, consequently, on the aforesaid two grounds the suit was filed for declaration. Before the trial court, it has come in evidence that Smt. Hira Devi had re-married during the pendency of the proceedings. Smt. Hira Devi filed an application for interrogatories about the date, time and marriage of her with Prem Singh. The petitioners duly replied to the aforesaid interrogatories. The respondents thereafter filed an application that since the reply of the petitioners was evasive, the suit of the plaintiff should be dismissed under Order 11 Rule 21 of the C.P.C. The trial court, after considering the submission of the learned counsel for the parties, dismissed the application of Smt. Hira Devi and held that sufficient reply was given by the petitioners. Aggrieved by the order of the trial court dated 20th June, 1981, the opposite parties filed an appeal before the Commissioner which was allowed by an order dated 19th April, 1985. The appellate Court not only allowed the appeal but also dismissed the suit of the plaintiffs under Order 11 Rule 21 of the C.P.C. The petitioners, being aggrieved by the aforesaid order, filed a revision No. 40 of 1987-88 before the Board of Revenue which was allowed by an order dated 5th September, 1991 and the order of the lower appellate court was set aside. The revisional court directed the trial court to proceed with the merits of the suit. It transpires that the respondent Nos. 6 Sri Deewan Singh and respondent No.7 the Deputy Director Tourist Department, Kumaon Division, Nainital filed separate applications for the recall of the order dated 5th September, 1991. The said respondents contended that they had been impleaded as necessary 3 parties during the pendency of the proceedings and that the revisional court allowing the revision had not given them an opportunity of hearing. The said restoration application was allowed by an order dated 14th July, 1993 on the ground that the said opposite parties were not heard. The revisional court accordingly fixed a fresh date of hearing of the revision. That the revisional court, after hearing the parties, dismissed the revision and further affirmed the order of the lower appellate court dismissing the suit. The revisional court further held that the suit of the petitioners was also liable to be dismissed under Order 2 Rule 2 of the C.P.C. since no cause of action had accrued in filing the suit. The petitioners, being aggrieved by the said order, has filed the present writ petition. Heard Shri Lokendra Dobhal, the learned counsel for the petitioners, Shri B.C. Pandey, the learned Senior Counsel with Shri B.D. Pandey and Shri J.C. Belwal, the learned counsel for the respondents and Shri Sudhir Kumar, the learned Brief Holder for the State. Under Order 11 Rule 2 of the C.P.C., particular interrogatories proposed to be delivered is required to be submitted to the Court. Such interrogatories for which leave has been granted is required to be answered by the other party on an affidavit. The sufficiency of the answer given by a party to an interrogatory on an affidavit is required to be determined by the Court under Order 11 Rule 10 of the C.P.C. If the court finds that the answer given by a party is sufficient, such order is liable to be passed and the Court will proceed accordingly. But in the event, the Court finds that the answer submitted by the parties is insufficient, the Court will direct the party to answer further under Order 11 Rule 11 of the C.P.C. In the event, the party fails to answer the interrogatories or fails to answer further, it would be open to the Court to pass an order in consonance with the 4 provision of Order 11 Rule 21 of the C.P.C. and, in the event, where the defendant fails to answer the interrogatories, the Court may strike off his defence and, in the event, where the plaintiff fails to answer to interrogatories, his suit could be dismissed for want of prosecution. This, in the opinion of the Court, is the scheme contemplated under Order 11 of the C.P.C. In M/s Babbar Sewing Machine Co. Vs. Trilok Nath Mahajan, AIR 1978 SC 1436, the Supreme Court held that the provision of Order 11 Rule 21 of C.P.C. should be applied in extreme cases where there has been obstinacy or contumacy on the part of the defendant or willful attempt to disregard the order of the court is established. The Supreme Court held that that the principles governing the court exercising its discretion under Order 11 Rule 21 is that it is only when the default is willful and as a last resort that the court should dismiss the suit or strike out the defence, when the party is guilty of such willful disobedience of the orders of the Court. In the light of the aforesaid decision of the Supreme Court, the Court is required to find out as to whether the petitioners has willfully defaulted any compliance of the order of the Court below. In the present case, the court finds that in response to the interrogatories, the petitioners submitted their reply. The reply was found satisfactory by the trial court and the application of the defendant to proceed under Order 11 Rule 21 of the C.P.C. was rejected. The said decision of the trial court was reversed by the appellate court as well as by the revisional court. The court finds that in the event, the appellate court or the revisional court was not satisfied with the answer submitted by the petitioners in that event, the court was required to pass a direction to the plaintiffs/petitioners to further answer the interrogatories as 5 required under Order 11 Rule 11 of the C.P.C. This apparently was not done by the courts below and the appellate court as well as the revisional court proceeded to pass an order under Order 11 Rule 21 of the C.P.C. In my opinion, the appellate court as well as the revisional court committed a manifest error in dismissing the suit under Order 11 Rule 21 or under Order 2 Rule 2 of the C.P.C. The court finds that no order could have been passed under Order 11 Rule 21 of the C.P.C. since the court does not find any willful default on the part of the petitioners in compliance of the interrogatories. In the first instance, interrogatories were answered by the plaintiffs and, therefore, there was a substantial compliance. There was no occasion for the Court to proceed under Order 11 Rule 21 of the C.P.C. Assuming that the answer given by the petitioners was insufficient, in that case, the Court is of the opinion that the Court could not have proceeded under Order 11 Rule 21 but was required to direct the petitioner to further submit answer to the interrogatories as provided under Order 11 Rule 11 of the C.P.C. This apparently was not done. The court further finds from a perusal of the record that the petitioners had given a positive reply to the interrogatories which was neither vague nor further answers were required. The revisional court has further dismissed the suit on the ground that no cause of action arose under Order 2 Rule 2 of the C.P.C. In the opinion of the Court, the revisional authority had exceeded its jurisdiction provided u/S 333 of the U.P.Z.A. and L.R. Act. There was no occasion for the revisional court to go into the question as to whether the cause of action existed or not. Even otherwise, the court is of the opinion that the cause of action arose to the petitioners to file a suit for declaration that they should be recorded in the revenue records as they are the sole heirs of Amrita Devi who was the recorded tenure holder. In the light of the aforesaid, the Court finds that the order of the 6 revisional court as well as of the appellate court being manifestly erroneous in law is liable to be quashed. The writ petition is allowed. The trial court is directed to proceed with the suit on merits. After the dismissal of the suit by the lower appellate court, it transpires that Hira Devi sold a portion of her land to respondent Nos. 6 and 7 and based on that the said respondents applied for mutation in the records. The said application was allowed and their names were mutated against which the petitioners preferred an appeal which was dismissed and, thereafter, the petitioners preferred a revision which was allowed by the impugned order. The revisional court held that the mutation of respondent Nos. 6 and 7 would be subject to the suit filed by the petitioners. The said respondents Nos. 6 and 7, being aggrieved by the said order, has preferred separate writ petitions. Having heard the learned counsel for the parties, this Court is of the opinion that prima-facie the said respondents were bonafide purchasers for valuable consideration and, consequently, for the time being, their names should be recorded in the revenue records. In view of the aforesaid, the impugned order cannot be sustained and is quashed. The court directs that their name shall be recorded in the revenue records which would be subject to the result of the suit filed by the petitioners u/S 229-B /209 of the U.P.Z.A. and L.R. Act. In view of the aforesaid, the parties shall bear their own cost. Registry is directed to remit the record of the lower court without any delay. (Tarun Agarwala, J.) Dated 16th September, 2010 Shiv