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(Taiyyati) Vasudevan Nambiyar and ors. Vs. (Unnikatungi) Nedungathiripad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1932Mad316; 137Ind.Cas.842
Appellant(Taiyyati) Vasudevan Nambiyar and ors.
Respondent(Unnikatungi) Nedungathiripad and ors.
Cases Referred and Lutchmanan Chetty v. Ramanthan Chetty
Excerpt:
- - 1. this is an appeal against an order of the subordinate judge of ottapalam dismissing the plaintiff's suit for his failure to comply with the terms of a previous order calling upon him to supply certain information in response to interrrogatories filed by the defendants. 2. the second preliminary point contains a good deal more substance. it is that the order of the court dismissing the suit must be deemed to have been passed in virtue of the failure of the plaintiff to comply with an order under order 6, rule 5, civil p. that order enables the court to call upon a party to furnish a further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading. it is true that it is used in order 11 and not in order 6;..........that it is not open to a party against whom an order under order 11, rule 21, civil p.c., has been passed to appeal against that order notwithstanding that it has resulted in the dismissal of the suit.2. the second preliminary point contains a good deal more substance. it is that the order of the court dismissing the suit must be deemed to have been passed in virtue of the failure of the plaintiff to comply with an order under order 6, rule 5, civil p.c. that order enables the court to call upon a party to furnish a further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading. now the suit was one for a lump sum of money estimated at rs. 15,000 and complaint was made by the defendant that the plaint did not.....
Judgment:

Curgenven, J.

1. This is an appeal against an order of the Subordinate Judge of Ottapalam dismissing the plaintiff's suit for his failure to comply with the terms of a previous order calling upon him to supply certain information in response to interrrogatories filed by the defendants. Two preliminary objections have been taken to the maintainability of the appeal. It is said in the first place that the appellant should have appealed not against the order but against the decree and judgment which were passed simultaneously with that order. It is true that in the ordinary course the dismissal of the suit was embodied in a judgment and a decree, but Order 43, Rule 1(f), Civil. P.C., provides for an appeal against an order Under Rule 21, Order 11; and supposing for the purpose of this point that the order under reference fell within that provision, I think that an appeal is contemplated not only against the decree itself but against an order that the suit should be dismissed; or to put it in other way, that the dismissal of the suit is by an order Under Rule 21, Order 11, and that the provision quoted makes it appealable. The mere circumstance that it necessarily involves the dismissal of the suit, and therefore that it brings into existence a decree, is not, I think, conclusive against this point of view because we find that Order 43, Rule 1 provides for appeals against orders which similarly involve the dismissal of a suit:--see for instance Clause (b)--(an order Under Order 7, Rule 10) Clause (e)--(an order Under Order 10, Rule 4) and Clause (h)--(an order Under Order 16, Rule 20). I am not prepared to hold accordingly that it is not open to a party against whom an order Under Order 11, Rule 21, Civil P.C., has been passed to appeal against that order notwithstanding that it has resulted in the dismissal of the suit.

2. The second preliminary point contains a good deal more substance. It is that the order of the Court dismissing the suit must be deemed to have been passed in virtue of the failure of the plaintiff to comply with an order Under Order 6, Rule 5, Civil P.C. That order enables the Court to call upon a party to furnish a further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading. Now the suit was one for a lump sum of money estimated at Rs. 15,000 and complaint was made by the defendant that the plaint did not disclose in reasonable detail the particulars upon which that claim was founded. Accordingly two months after the filing of the plaint, and before the written statement was filed a petition was filed Under Order 6, Rule 5 requesting the Court to pass an order directing the plaintiff to state certain additional particulars contained in an affidavit which, it was added, were absolutely necessary considering the nature of the suit and which the plaintiff was bound to give in the plaint. The Court thereupon passed an order which it headed ' Order 6, Rule 5, Civil P.C.' in, the terms requied adding that the iniormation sought might be put into the form of interrogatories. After the interrogatories were filed an order was passed in justification of calling upon the plaintiff to answer them and the reasons given were that in this plaint he had given no details of the money spent, or the dates of disbursements, and that his claim was only in the form of a consolidated amount. It was added that he was bound to disclose the purpose for which the alleged disbursements were made and then only the defendants could say how far the claim was justified. I take that to mean that the defendants could not bo called upon to answer the plaint by a written statement unless they had that information accordingly the plaintiff was asked to answer the interrogatories as a means, I take in of rendering more precise the statement made in the plaint. It has been sought to argue that because the matter was put into the form of interrogatories, it was intended that Order 11 and not Order 6 should apply to this proceeding. I do not think that there is anything in the term 'interrogatory' to lead necessarily to that conclusion. It is true that it is used in Order 11 and not in Order 6; but in the first place, it is only synonymous with 'question' and, in the second, it is evident from the Court's own heading of its order that it intended at that stage to proceed Under Order 6 and not Under Order 11. I have been asked to infer from the nature of the questions administered that they were more in the nature of eliciting evidence than of filling up gaps in the pleadings, but I have been through them together with the plaint, and it appears to me that the information asked for might very well have been expected to be found originally in the plaint and, in fact, that in several respects, such as questions with regard to the inclusion of interest, of salary and of the particulars of special expenses, suits, customary expenses, etc., that they should have been included in making the original claim.

3. To comply with the Court's order the plaintiff was given a considerable time for furnishing answers to these questions and having, in the view of the Court, failed satisfactorily to comply with its order, the suit was eventually dismissed; and the main ground for claiming that the order dismissing the suit was Under Order 11, Rule 21, is an express statement in the order itself that it was dismissed under that order. That no doubt, taken by itself, is prima facie evidence of the intention of the Court, but I do not think it is conclusive of the nature of the proceeding and so of the order which was actually passed at the close of it. The main reason for holding that Order 6 and not Order 11 applies is undoubtedly the stage of the suit at which the application was made. It was made, as I have said, very shortly after the plaint was filed and before the written statement was filed and clearly in order that the defendant might have materials upon which to prepare it, Now it cannot be said that generally speaking, the Court is justified in calling upon a party to answer interrogatories, which are in the nature of eliciting evidence, Under Order 11 at that stage; whereas there can be no question that at that stage it is perfectly proper to remedy a defect in the pleadings by an order Under Rule 5, Order 6. It is abundantly clear that at any rate when it started out the lowor Court intended its order to be of that character. The learned Subordinate Judge does indeed seem to have lost sight of that circumstances and may no doubt have been misled by the form in which the information was sought, but as I have said the mere fact that that was by question and answer is not any conclusive test. Having regard to all the circumstances, I am clear that the application was one Under Order 6, Rule 5 that the original orders were passed upon it under that rule and that the order dismissing the suit would have been a perfectly legal order to pass for a failure to comply with the terms of that rule. This has been held recently by Reilly and Cornish, JJ., in The Nedungadi Bank v. The Official Assignee of Madras A.I.R.1930 Mad.473, and indeed it is difficult; to see what other course a Court could adopt upon the failure of a plaintiff to furnish the information required by Rule 5 except to dismiss the suit. In all these circumstances I think that although the provision of law quoted in dismissing the suit was Order 11, Rule 21, everything points to the order itself in substance and in intention having been one Under Order 6, Rule 5. That being so, it is, I think, clear that in judging of the appealability of an order we must look to the substance of it rather than to the provision of law under which it purports to have been passed. This principle has been acted upon in several cases in this Court, such as Mangayya v. Sriramulu [1913] 19 I.C. 448, Chengaru v. Raman Nayar A.I.R.1921Mad.417, as well as in a recent Lahore case, A I.R.1930 Lah.468. There are other decisions, of which Muthiah Chettiar v. Govinddoss Krishnadoss A.I.R.1921Mad.599, which follows Abdul Rahiman Sahib v. Ganapathi Bhatta [1900]23 Mad.517 and Lutchmanan Chetty v. Ramanthan Chetty [1905]28 Mad.127, are examples, but those are not, I think, cases in which the order under reference might have been passed under some other provision of the Code. They were cases in which the Court, although purporting to act under a certain provision, had in fact no power to pass such an order and it was held nevertheless because the order purported to be under an appealable rule of the Code, an appeal would lie againstit. My conclusion accordingly is that I must treat this case as closing with an order passed Under Rule 5, Order 6 and that being so no appeal is allowed against it by the Code. The appeal is accordingly dismissed with costs.


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