Decided on September 15,1960

KISHAN RAM Appellant
GHEWAR CHAND Respondents


Beri, J. - (1.)THIS is an appeal against the order of the learned Senior Civil Judge, Merta dated 16. 10. 57 passed under O. 11, R. 21, Code of Civil Procedure striking off the defence of the appellants.
(2.)THE circumstances which give rise to this appeal may be briefly stated as under: - A suit was instituted by Ghewar Chand, Magan Mal and Sheo Prasad against the defendants Ram Jeewan, Harjee Ram and Kishan Ram for recovery of Rs. 10,000; -. THE defendants who are appellants before us represent the Jochina Co-operative Sale and Supplies Society Ltd , a federation of several Co-operative Societies of which the defendants are the presidents. THEy were appointed as the Whole-sale-Importer of cloth for Nagaur and Deedwana Tehsils. It being a big business the defendants looked out for some financier. Eventually they entered in to an agreement with the plaintiffs for financing this business. Some 'arhat' was agreed upon between the parties. According to this agreement, the plaintiffs claimed Rs. 10,000/- against the defendants in this suit. THE defendants denied these allegations. THEy have also filed a cross suit against the plaintiffs in which they have claimed a sum of above Rs. 80,000/-being payable to them on account of the above transactions and the two suits have been ordered to be consolidated. THE plaintiffs presented an application under O. 12, R. 4 and O. 11 R. 2 Civil Procedure Code in the nature of interrogatories requiring the defendants to answer certain queries. On 1. 3. 57 defendants Harjiram replied to the interrogatories and the remaining two defendants filed their reply on 13. 3. 57.
The learned Civil Judge after giving opportunities to the defendants to answer the interrogatories in question came to the conclusion that the replies filed by the defendants were incomplete and vague and on that account pursuant to O. 11 R. 21 he ordered that the defendants' defence be struck off and exparte proceedings be taken against them.

It has been already mentioned that another suit for recovery of Rs. 80,316/-has been filed by the defendants-appellants in the present appeal against the plaintiffs-respondents concerning the aforesaid transaction between the parties and the court by its order dated 13. 4. 57 directed that because as many as eight issues were common in both these suits the two suits be consolidated.

The learned counsel for the respondents has raised a preliminary objection that as the valuation of the suit by the plaintiffs is Rs. 10,000 only an appeal lies to the District Judge, Merta and not before this Court. The learned counsel for the appellants meets this objection by saying that as the two suits stand consolidated by virtue of the order dated 13. 4. 57, the valuation exceeds Rs. 90,000/- and in accordance with the spirit of O. 45 R. 4 the valuation for purposes of the the present appeal should be treated as more than Rs. 10,000/ -. The provisions of O. 45 R. 4 do not in terms apply to an appeal of the kind before us. All the same the consequence of consolidation of these two suits apparently is that if an order is passed in one suit it is likely to affect the other suit which has been consolidated with it, and the application of the principle of pecuniary valuation for these two suits when differently applied is likely to result in anomalies. If an order is passed in the suit which is valued at Rs. 80,000/- and odd which order affects the suit which has been valued at Rs. 10,000/- the questions may well arise as to where an appeal is to be presented. Therefore, to eliminate an anomaly that may arise in circumstances such as these it is convenient that for the purposes of valuation the appeal should be treated on the basis of consolidation and an appeal to this Court would appear to be proper. In the present case it is obvious that the order under appeal is also likely to affect the merits and evidence of the suit which is valued at! Rs. 86,000/- and odd and therefore, it is but just and proper that for purposes of valuation it is the consolidated value of the two suits should be treated as the proper valuation to determine the forum of appeal. In our opinion, therefore, this preliminary objection of the learned counsel for the respondents has no force and we therefore, proceed to consider this appeal on its merits.

On 12. 2. 57 an application under O. 12 R. 4 and O. 11 R. 2 Code of Civil Procedure was presented by the plaintiffs in which as many as nine questions were put to the defendants. A reply, as we have already noticed, was first made by the defendants on 13. 3. 57 and a further reply was made on 13. 4. 57. In proceedings of the court dated 16. 9. 57, the learned Civil Judge observed that the arguments on the application under O. 12 R. 4 were heard and the reply submitted by the defendants was considered and found to be incomplete. The defendants were given one more opportunity to file a complete reply within 8 days. The defendants expressed their inability to give any further answers than those already submitted on 13. 4. 57. Thereupon the learned Civil Judge held that as defendants had not fully answered the questions raised in the interrogatories under Order 11, Rule 21, due to this wilful default the defence of the defendants be struck off.

A question may arise for consideration in this case as to whether the application of the plaintiffs was an application under O. 11, R. 2 or O. 12, R. 4 or both. We may observe that the relevant forms of interrogatories prescribed in Appendix C to the Code of Civil Procedure have not been strictly observed. The relevant forms under the respective provisions are different. The questions have been couched in language which is wide in its amplitude and cover many points in the same breath. The interrogatories further do not denote as to which one of the defendants is to reply to which of the interrogatories. The reply of the defendants is also not on oath and no objection appears to have been taken that the reply given by the defendants was not duly sworn to. It appears that there was some confusion in the mind of the parties as to whether it was a case for seeking admission from the defendants under Order 12 Rule 4 or getting interrogatories replied to under O. 11, R. 2 of the C. P. C. If it was a case covered by O. 12, R. 4 then the consequence would be that irrespective of the result of the suit costs of proving the facts refused or neglected to be admitted had to be borne by the party who refused or neglected to admit those facts. If the application is to be treated as one under Order 11 Rule 2 then in case of non-compliance the penalty contemplated by Order 11 Rule 21 would be attracted. We have examined the proceedings of the lower court and we find that in some proceedings it has been treated as one under Order 12 Rule 4 and in others it has been treated as one under Order 11, Rule 2 as well as Order 12, Rule 4. The penalty in the two cases being different it was the duty of the court to treat apart the queries falling under the one head or the other so as to avoid the resulting prejudice to defendants.

The intention of the above provisions broadly speaking is to save time and expense in the disposal of the suits before a trial court. It is in effect a healthy device to narrow the scope of controversy between the parties and to eliminate the points of dispute as far as possible. These salutary provisions have been included in the Code of Civil Procedure to expedite the course of justice. In the circumstances of this case the plaintiffs' questions or points on which the admissions or answers were sought, whatever view be taken, were comprehensive and they have been answered by the appellants to the best of their ability. The court below has described these answers as incomplete or vague without specifying the particulars in respect of which the answers are vague or incomplete. In fact the criticism itself would appeal to be vague. The learned counsel for the respondents took out the best illustration according to him of this vagueness or incompleteness viz. question No. 9 and its answers. This question covers more than one dozen heads of expenses which are said to have been incurred by the plaintiffs for the defendants. The defendants have answered this by saying that they are liable for such of the heads of expenses which under the terms of the agreement they have undertaken to pay for. With regard to the quantum, they expressed their inability on the grounds that receipts pertaining to these are with the plaintiffs themselves. The learned counsel for the appellants submitted that it is a co-operative society and if the auditor has not admitted the expenses as having been duly incurred the defendants will not be in a position to admit those expenses either. We are inclined to agree with the learned counsel for the appellants. It will be wrong to characterise the answers given by the defendants as vague or incomplete. An omnibus and complicated query as contained in question No. 9 is in itself not one contemplated by Order 11 Rule 2.

From an examination of the record we find that there is no petition by the plaintiffs indicating the particulars in respect of which the answers of the defendants were alleged to be vague or incomplete. The learned lower court also has at no place indicated the manner in which the answers can be characterised as incomplete or vague. We have examined the answers and we do not find them vague or incomplete.

(3.)IN the circumstances of this case in our opinion the lower court was in error in applying the penal provisions of order 11 Rule 21. This appeal is, therefore, allowed. The order of the learned Civil Judge, Merta dated 16th October, 1957, is set aside. The appellant will get his costs from the respondent. The records may be sent to the learned Civil Judge, Merta as early as possible for disposal of the suits according to law.

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