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HIGH COURT OF KERALA
C.S. DIAS, J
RAMLA – Appellant
Versus
KHADEEJA – Respondent
OP(C) 316 2023
Partition - Decree of Partition - Code of Civil Procedure Sections - The court examined applications related to trial initiation and interrogatories under relevant rules of the Code, confirming the lower court's decisions based on procedural timing and appropriateness, highlighting the discretionary powers granted under the Code.
Fact of the Case:
The plaintiff filed a suit for partition of properties left by her deceased father, which had joint possession claims from multiple parties. The defendants asserted that most properties were not available for partition, leading to a series of applications and counter-applications concerning trial proceedings.
Finding of the Court:
The court found that the lower court's decisions to dismiss the applications were justified, as they were made at a late stage of the trial process, and emphasized the necessity for timely applications relating to evidence and discovery.
Issues: The court determined whether the lower court made any legal errors in dismissing the applications for directing trial initiation and for leave to deliver interrogatories.
Ratio Decidendi: The court reiterated that discovery and trial procedures are governed by specific provisions of the Code, underscoring the importance of timing and relevance in legal applications.
Final Decision: The original petition was dismissed concerning the trial initiation and the application for interrogatories.
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 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 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 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 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 interr
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