Prabhakaran Vs. Sajini

Prabhakaran vs Sajini

Type Court Judgment Court Kerala Decided Dec 08, 2009

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https://sooperkanoon.com/case/849165

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Citation: sooperkanoon.com/849165
Court: Kerala High Court
Judge: S.S. Satheesachandran, J.
Decided On: Dec 08, 2009
Case Number: W.P.(C). No. 30861 of 2009
Subject: Civil

Case Summary

AI-generated summary - not the official court judgment text.

- What remains to be seen is as to whether Pinki died an un-natural death within seven years of her marriage and whether her death was attributable to the demand of dowry and further whether she was dealt with cruelty soon before her death. If these ingredients are proved by the prosecution then the conviction of th...

Key legal issue: Civil
Acts & sections: Code of Civil Procedure (CPC) , 1908 - Order 11, Rule 21 - Order 43, Rule 1; ;Constitution of India - Article 227

Parties & Advocates

Appellant / Petitioner

Prabhakaran

Advocate S. Nirmal, Adv.

Respondent

Sajini

Advocate K.M. Firoz, Adv.

Legal References

Acts: Code of Civil Procedure (CPC) , 1908 - Order 11, Rule 21 - Order 43, Rule 1; ;Constitution of India - Article 227
Cases Referred: In Barber Sewing Machine Co. v. Tritok Nath Mahajan
Reported In: 2010(1)KLT53

Excerpt

- what remains to be seen is as to whether pinki died an un-natural death within seven years of her marriage and whether her death was attributable to the demand of dowry and further whether she was dealt with cruelty soon before her death. if these ingredients are proved by the prosecution then the conviction of the accused under section 304b, ipc will be complete.[para 9] the question is, in the absence of corpus delicti, could it be presumed that the accused persons alone were responsible for the death of pinki. we must hasten to add here that the accused persons have already been acquitted of the murder charge. [para 9] it is clear that pinki's death was caused because of the burns and not in the normal circumstances. the finding of the trial court and the appellate court in that behalf is correct. for this reason we are not impressed by the argument of the learned counsel that in the absence of corpus delicti, the conviction could not stand. [para10] it is clear that the prosecution has not only proved the offence under section 304b, ipc with the aid of section 113b, indian evidence act but also the offence under section 201, ipc. [para 15] held: we have gone through the judgments of the trial court as well as the appellate court carefully and we find that both the courts have fully considered all the aspects of this matter. we, therefore, find nothing wrong with the judgments and confirm the same. the appeal is, therefore, dismissed.[para 16].....article 227 of the constitution of india.3. i heard the counsel for the petitioner and also the first respondent/plaintiff.4. a preliminary objection was raised by the learned counsel for the first respondent that the impugned order falls under order xi rule 21 of the code of civil procedure from which an appeal is entertainable under order xliii rule 1(f) of the code of civil procedure. that being so, according to the learned counsel, the writ petition filed invoking the supervisory jurisdiction under article 227 of the constitution of india is not entertainable. true, when an alternative efficacious remedy is available by way of an appeal, normally, this court will be slow to interfere with the order passed by a subordinate court. however, where there is glaring jurisdictional infirmity in the order of the subordinate court which is challenged by way of a writ petition invoking the supervisory jurisdiction of this court nothing prevents this court, even the availability of an alternative efficacious remedy of an appeal, to examine the correctness and propriety of that order and pass appropriate orders which are necessary to advance the ends of justice. perusing the impugned p11 order passed by the court below it is seen that the court below has not taken into account the circumstances under which the case of the plaintiff or of defence of the defendant can be struck off for the reason of noncompliance of the order directing for furnishing answers to interrogatories. in barber sewing machine co. v. tritok nath mahajan : air 1978 sc 1436 the apex court has held that 'an order striking out the defence under order xi rule 21 should not be made unless there has been obstinacy or contumacy on the part of the defendant or wilful attempt to disregard order of the court, to produce the documents'. it is well settled that the stringent provisions of order xi rule 21 should be applied only on extreme cases where there is wilful and deliberate default on the part of the.....

Full Judgment

S.S. Satheesachandran, J.

1. Writ Petition is filed seeking the following reliefs:

i) To issue a writ of certiorari calling for the records of Ext. P1 and quash the original of the same.

ii) To issue a writ, order or direction, directing the Sub-Court, Kozhikode to afford another opportunity to the petitioner to comply with the order dated 26.08.2008 to answer the interrogatories.

2. Petitioner is the first defendant in O.S. No. 100 of 2007 on the file of the Sub-Court, Kozhikode. Suit is one for partition and the first respondent is the plaintiff and other respondents, co-defendants in the suit. After the written statement was filed by the petitioner/first defendant resisting the suit claim first respondent/plaintiff moved an application to serve interrogatories on the first defendant to elicit answers to some of the questions raised. Ext.P3 is the copy of that application to which the petitioner/first respondent filed Ext.P4 objections. Negativing the objections raised by the petitioner, court below directed him to answer the interrogatory. Since interrogatories were not answered as directed, on the application moved by the first respondent/plaintiff to strike off the defence, learned Munsiff after hearing both sides passed Ext.P 11 order striking out the defence of the first petitioner/defendant for non-compliance of the order issued to answer the interrogatories under Ext.P3 application. Ext.P 11 is the copy of that order. Propriety and correctness of P11 order is challenged in the Writ Petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India.

3. I heard the counsel for the petitioner and also the first respondent/plaintiff.

4. A preliminary objection was raised by the learned Counsel for the first respondent that the impugned order falls under Order XI Rule 21 of the Code of Civil Procedure from which an appeal is entertainable under Order XLIII Rule 1(f) of the Code of Civil Procedure. That being so, according to the learned Counsel, the Writ Petition filed invoking the supervisory jurisdiction under Article 227 of the Constitution of India is not entertainable. True, when an alternative efficacious remedy is available by way of an appeal, normally, this Court will be slow to interfere with the order passed by a subordinate court. However, where there is glaring jurisdictional infirmity in the order of the subordinate court which is challenged by way of a Writ Petition invoking the supervisory jurisdiction of this Court nothing prevents this Court, even the availability of an alternative efficacious remedy of an appeal, to examine the correctness and propriety of that order and pass appropriate orders which are necessary to advance the ends of justice. Perusing the impugned P11 order passed by the court below it is seen that the court below has not taken into account the circumstances under which the case of the plaintiff or of defence of the defendant can be struck off for the reason of noncompliance of the order directing for furnishing answers to interrogatories. In Barber Sewing Machine Co. v. Tritok Nath Mahajan : AIR 1978 SC 1436 the Apex Court has held that 'an order striking out the defence under Order XI Rule 21 should not be made unless there has been obstinacy or contumacy on the part of the defendant or wilful attempt to disregard order of the court, to produce the documents'. It is well settled that the stringent provisions of Order XI Rule 21 should be applied only on extreme cases where there is wilful and deliberate default on the part of the defendant to disregard the orders of the court. Merely for the reason that an order had been passed on an application of one or other party for serving interrogatories on the other, and failure of the party who had been directed to answer such interrogatories the court cannot pass an order to strike out his defence. The court has to examine whether there was obstinacy amounting to wilful and deliberate disobeyance of the order of the court which warrants striking of his defence. No such enquiry or finding thereof has been entered by the learned Munsiff while passing Ext. P11 order. That being so, Ext.P11 order, no doubt suffers from jurisdictional infirmity and it is liable to be set aside. Then examining Ext.P3 application of the first respondent/plaintiff it is seen what she has sought for by way of interrogatories is details of the transactions which are alleged to have been carried out by the first defendant in respect of the plaint properties with particulars of the documents and also the names of the vendees to whom such properties had been transferred. In Ext.P4 objections the first defendant had contended that all the vendees are in the party array, and also the documents have been produced by them, and nothing more remains for him to be furnished in answer to the interrogatories. It appears, when the plaintiff moved an application to strike out the defence of the first defendant for noncomplying with the order to serve interrogatories, the learned Additional Sub Judge failed to examine the question whether the interrogatories sought for deserved to be answered by the defendant in the light of the objections canvassed by him that all the vendees are in the party array and they have produced their documents. Setting aside Ext.P11 order I direct the learned Sub Judge to consider Ext.P10 application afresh taking note of the observations made above and dispose the application in accordance with law.

Writ Petition is disposed of as above.

Same Court & Year Kerala · 2009 Same Parties Prabhakaran vs Sajini Same Subject Civil Same Judge S.S. Satheesachandran, J. Acts & Sections Code of Civil Procedure (CPC) , 1908 - Order 11, Rule 21 - Or...

Civil