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Dr. Ashok Kumar Tripathy Vs. Dalmia Institute of Scientific and Industrial Research - Court Judgment

LegalCrystal Citation
SubjectService
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 714 of 1981
Judge
Reported inAIR1986Ori42
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 11, Rule 1
AppellantDr. Ashok Kumar Tripathy
RespondentDalmia Institute of Scientific and Industrial Research
Appellant AdvocateG. Rath, Adv.
Respondent AdvocateJ. Das, Adv.
DispositionRevision dismissed
Cases ReferredGanga Devi v. Krishna Prasad Sharma
Excerpt:
.....he suddenly left the service by sending a letter of resignation on 28-2-1977 and requested the opposite party to relieve him immediately knowing fully well that he should not leave the service before expiry of the stipulated period. introduced by the amendment, have to be satisfied in every case before the high court can interfere with the order. or (b) if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. the position is well settled that delivery of interrogatories to the opposite party is primarily intended to shorten litigations, some expenses and serve the interest of justice. as such it cannot be said that the impugned order, if allowed to stand, would occasion a failure of justice or cause irreparable injury..........application under order 11, rule 1, c.p.c. for leave to deliver interrogatories to the opposite party. opposite party, dalmia institute of scientific and industrial research, a society registered under the societies registration act, 1960, filed the abovementioned suit for recovery ofrs. 28,500/- with costs and interest from the petitioner. the facts pleaded in the plaint, shorn of unnecessary details, are that the defendant dr. ashok kumar tripathy was appointed by the opposite party as principal scientist (ceramics) in its research institute at rajgangpur on a monthly consolidated salary of rs. 2,000/- under appointment letter no. rgdi dated may 1/14, 1974 and in pursuance thereof the petitioner entered into a service con tract dated 16th may, 74 with the opposite party whereunder,.....
Judgment:
ORDER

D.P. Mohapatra, J.

1. This application under Section 115, Civil P.C. is directed against the order dated 31-10-1981 of the Subordinate Judge, Sundargarh in Money Suit No. 86/78, rejecting the petitioner's application under Order 11, Rule 1, C.P.C. for leave to deliver interrogatories to the opposite party.

Opposite party, Dalmia Institute of Scientific and Industrial Research, a Society registered under the Societies Registration Act, 1960, filed the abovementioned suit for recovery ofRs. 28,500/- with costs and interest from the petitioner. The facts pleaded in the plaint, shorn of unnecessary details, are that the defendant Dr. Ashok Kumar Tripathy was appointed by the opposite party as Principal Scientist (Ceramics) in its Research institute at Rajgangpur on a monthly consolidated salary of Rs. 2,000/- under appointment Letter No. RGDI dated May 1/14, 1974 and in pursuance thereof the petitioner entered into a service con tract dated 16th May, 74 with the opposite party whereunder, inter alia, he agreed to serve the Society for a period from 16th May, 1974 to 31st Dec., 1978; on condition that the first four months of service shall be regarded as the period of probation. Subsequently, on 9-12-3974, on the application of the petitioner his services were confirmed with effect from 16th Nov., 1974. Under clause 4 of the contract it was agreed that the employee shall he liable to pay to the employer by way of liquidated damages a sum equivalent to twelve times the monthly salary last drawn, if he leaves the service of the employer before completion of the service period referred to in para 2 above or brings about a situation by misconduct, compelling the employer to terminate his service. The opposite party has further stated in the plaint that in course of his service the petitioner was given necessary training and was provided with facilities for research and encouragement in the shape of special reward of Rs. 2,500/- for his research work. In spite of the facilities offered to the petitioner he suddenly left the service by sending a letter of resignation on 28-2-1977 and requested the opposite party to relieve him immediately knowing fully well that he should not leave the service before expiry of the stipulated period. Thus, according to the opposite party, the petitioner committed a breach of the service contract. The petitioner was drawing a monthly salary of Rs. 2,375/- at the time of tendering his resignation. In these circumstances, the opposite party claimed a sum of Rs. 28,500/- towards liquidated damages as stipulated in the contract, though the loss incurred by the Society due to sudden and premature quitting of service by the petitioner is much more.

2. The petitioner in his written statement denied the averments in the plaint. According to him, the plaintiff-Society is a fictitious one and has no existence at all; the alleged contract for service, if any, is against public policy and is void under the provisions of Section 23 of the Contract Act. Indeed, the plaintiff-Society wascreated by Orissa Cement Ltd. in order to divert its excess profit to it and thereby to get tux exemption showing donation for Scientific research. The petitioner further alleged that the Orissa Cement Ltd. has evaded payment of tax of substantial sums by this process. In fact, the defendant-petitioner was in service of the Orissa Cement Ltd. and when the fictitious organisation in the name and style of the plaintiff was created the name of this petitioner along with many other employees of the Orissa Cement Ltd. was lent to the Society just to prove its existence. In reality the petitioner contained his service under the Orissa Cement Ltd. as before. Aecording to the petitioner, he was compelled to give up his service on health grounds since he suffered from a disease which was certified by the doctor to be occupational.

3. On the above pleadings of the partiesthe trial court framed 9 issues on 17-12-1970 of which those are relevant for the present purpose are quoted hereunder :

'No. 3: Whether the plaintiff is a fictitious Organisation and whether the plaint has been properly filed?

No. 4. Whether the defendant was in service of the plaintiff or this was a manipulation and paper transaction though the defendant was actually in service of Orissa Cement Ltd.?

No. 5. Whether there was any service contract between the plaintiff and the defendant or the contract if any was only a sham transaction?

No. 6. Whether the service contract, if any, is void and unenforceable as it violates the provisions of Section 23 and Section 27 of the Contract Act?

No. 7. Whether the damages claimed is in the nature of a penalty and is in terrorism?

4. On 4-10-1980 the petitioner filed an application in the trial court seeking permission under Order 11, Rule 1, C.P.C. to deliver interrogatories to the opposite party requiring it to answer the same within 10 days from receipt of the same thereon. The interrogatories which have been quoted in the impugned order are as follows : --

Interrogatories.

l(a) Whether any donation or donations were made by the Orissa Cement Ltd. to the Dalmia Institute of Scientific and Industrial Research for its formation and thereafter till 1977?

(b) If so, the amount of donations made, the date or dates of receipt of donations.

(c) How the donations have been invested and when?

(d) Whether the Dalmia Institute of Scientific and Industrial Research has invested funds in purchasing shares in Company or if any business and if so in which concerns and the amounts invested?

(e) Also if the D.I.S.I.R. has invested funds in fixed deposits, advancing loans etc. up to 1977 and if so with to whom or which concern and what is the amount? From which date?

2. The date of implementation of the scheme of Provident Fund and Gratuity in Dalmia Institute of Scientific and Industrial Research.

3. Whether any service rules were framed for the employees of D.I.S.I.R. till the end of 1976 and if so when and what is the date of resolution of the council of the D.I.S.I.R. approving the same?

4. On which date electrical connection was provided to the Research Institute of D.I.S.I.R.?

5. How many officers of the D.I.S.I.R. have left the organisation from its inception-whether they had any agreement of service and whether any suit has been instituted for realisation of any compensation from any of them?

6. Whether the plaintiff-Institute has done any work for any concern till 1977 and has it earned any amount for such work? If so from whom and what is the amount?

The opposite party objected to the application filed by the petitioner, inter alia, on the ground that interrogatories proposed to be delivered to the defendant are irrelevant, unnecessary, frivolous and unreasonable.

5. The learned Subordinate Judge on a consideration of the matter came to hold that the interrogatories for delivery of which permission was sought are not bona fide and material at this stage. Accordingly, the petition for leave to delivery of interrogatories was rejected by the impugned order.

Shri Jagannath Das, learned counsel for the Opposite Party has raised a preliminary ' objection regarding maintainability of the revision petition. He submits that the impugned order rejecting the petitioner's application under Order 11, Rule 1, C.P.C. does not decide any rights and liabilities of the parties and as suchdoes not come within perview of a 'case decided' as contemplated under Section 115, C.P.C. The learned counsel further contends that the impugned order is not available to be interfered with since it does not satisfy the requirements of the proviso to Section 115(1), C.P.C.

6. Shri G. Rath, learned counsel for the petitioner, on the other hand, contends that the impugned order is revisable under section 115, C.P.C. and in the facts and circumstances of the case it deserves to be reversed since the trial court has refused to exercise jurisdiction vested in it on a misconception of the statutory provision. According to Shri Rath, the court below seems to have been under an erroneous impression that questions which should be put to witnesses in course of trial cannot be the subject matter of interrogatories.

7. Taking the question of maintainability of the revision petition, fairly lengthy arguments were advanced on behalf of both the parties as to whether the principles laid down by the Supreme Court in the case of Major S.S. Khanna v. Brig. F.J. Dillon, AIR 1964 SC 497 and Baladevdas Shivlal v. Filmistan Distributors (India) (P) Ltd., AIR 1970 SC 406 wherein it was held that in order to come within the seope of Section 115, C.P.C. the impugned order must decide some rights or liabilities of the parties, still hold the field after amendment of Section 115, C.P.C. in 1976. Undoubtedly, there has been some controversy on this point. While on the one hand the argument has been that the scope of Section 115, C.P.C. has been widened after the amendment, on the other hand, the contention has been raised that this is not so and indeed the scope of revision under the said section has been curtailed by introducing the proviso to Section 115(1), C.P.C. This Court in the case of Sabitri Debi v. Baikuntha Das, (1979) 47 Cut LT 266 : (AIR 1979 Orissa 140), a case decided after the amendment, has relied on the aforesaid two decisions of the Supreme Court and also the decision of the said Court reported in AIR 1978 SC 47 to hold that unless an interlocutory order determines some rights or obligations of the parties for the purpose of the suit, the impugned order will not come under the expression 'case decided'. The Court pointed out that if every interlocutory order is held to be revisable it would frustrate the provision of Section 115, C.P.C. In a recent decision in the case of Ramesh Lal Santuka v. Suresh Lal Santuka reported in (1984) 1 Orissa LR 967 I had the occasion to consider this question.

On consideration of the earlier decisions of this Court and other High Courts I have taken the view that even after the amendment of Section 115, C.P.C. in 1976 the principle laid down by the Supreme Court in the cases reported in AIR 1964 SC 497 and AIR 1970 SC 406 are applicable and it has to be shown that under the impugned order some rights or obligations of the parties relevant for the purpose of the suit are decided to satisfy the requirement that the said order amounts to 'a case decided'. It is further decided in the said case that any one of the two criteria laid down under the proviso to Section 115(1), C.P.C. introduced by the amendment, have to be satisfied in every case before the High Court can interfere with the order. Any one of the two criteria are --

(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the revision, suit or other proceeding; or

(b) if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

The Allahabad High Court in the case of Maheshwari Oil Mill v. Girijanath Durga Saran, AIR 1980 All 265 held that an order refusing to grant leave to a party to deliver interrogatories does not amount to a 'case decided' within Section 115, C.P.C. Since, when the Court exercises its judicial discretion in granting or refusing to grant leave to deliver interrogatories, it cannot be said to be an adjudication of some rights or obligations of the parties in controversy. The Court further observed that it is analogous to overruling or sustaining an objection to a question put to a witness and it is purely interlocutory order which is not revisable.

In view of the principle laid down in this decision with which I am in respectful agreement, the revision application has to be held to be not maintainable.

Even assuming that the impugned order comes within the expression 'case decided', yet the hurdle under the proviso under Section 115, C.P.C., as indicated earlier, still remains. It is not in controversy that the impugned order in the present case is not one which, if it had been made in favour of the petitioner, would have finally disposed of the suit. Hence, it does not come under Clause (a) of the proviso. The only other question that remains to be considered is whether it comes under Clause (b) i.e. if allowed to stand would occasion a failureof the justice or cause irreparable injury to the party against whom it was made. The position is well settled that delivery of interrogatories to the opposite party is primarily intended to shorten litigations, some expenses and serve the interest of justice. Refusal of leave to deliver interrogatories does not prevent the parties seeking the deliver the same, to extract the answers to the questions sought to be delivered in course of examination and cross-examination of witnesses. As such it cannot be said that the impugned order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. Thus, none of the two clauses of the proviso to Section 115. C.P.C. is satisfied in the present case. On this ground also it has to be held that the revision petition is not maintainable.

8. Coming t6 the scope of Order 11, Rule I, C.P.C., the Supreme Court in the case of Rajnarain v. Smt. Indira Nehru Gandhi, AIR 1972 SC 1302 observed as follows (para27) :-

'Questions that may be relevant during cross-examination are not necessarily relevant as interrogatories. The only questions that are relevant as interrogatories are those relating to 'any matters in question'. The interrogatories served must have reasonably close connection with 'matters in question'. Viewed thus, interrogatories 1 to 18 as well as 31 must be held to be irrelevant'.

The Calcutta High Court in the case of Jamaitrai Bishansarup v. Rai Bahadur Motilal Chamaria, AIR 1960 Cal 536 while laying down that the administering of interrogatories is to be encouraged because they not infrequently bring an action to an end at an earlier stage to the advantage of all parties concerned observed that interrogatories must be confined to matters which are in issue or sufficiently material at the particular stage of the action at which they are sought to be delivered, or to the relief claimed and as a general rule, pertains to matters which are relevant to the facts directly in issue, but under some circumstances they may extend to the facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue. The Court further held that interrogatories should be confined to obtaining from the party interrogated admissions of facts which it is necessary for the party interrogating to prove in order to establish his case.

This Court in the ease of Ganga Devi v. Krishna Prasad Sharma, AIR 1967 Orissa 19 discussing the scope of Order 11, Rule 1, C.P.C. observed as follows : --

'The main object of interrogatories is to save expenses by enabling a party to obtain an admission from his opponent which makes the burden of proof easier. The interrogatories are permissible with regard to matters which are relevant to the facts directly in issue and would not be extended to prying into the evidence wherewith the opposite party intends to support his case.'

9. Judged in the light of the principles laid down in the decisions referred to above, in the present ease, it cannot be said that the trial Court committed an error of jurisdiction in refusing to accord relief to the petitioner to deliver interrogatories in exercise of its direction.

In view of the discussions aforesaid the revision fails both on the ground of its maintainability as well as on merits. It is accordingly dismissed. Both the parties shall bear their respective costs of this proceeding.


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