Friday, 20 May 2016

Procedure to be followed by court in case of discovery by interrogatories

In   the   present   case   the   petitioner   in   response   to   the
interrogatories as made submitted his affidavit.  No exception was taken by
the respondent on the ground that said information was either insufficient or
that there was any omission to answer.  The trial Court on its own proceeded
to record a finding that the information furnished was insufficient and by
observing that it would draw adverse inference, directed the petitioner to
furnish further information.  The course as followed by the trial Court is not
in accordance with the scheme of Order XI of the Code of Civil Procedure.
The order dated 06.07.2015 has been passed by exercising jurisdiction with
material irregularity resulting in miscarriage of justice.  The same is therefore
liable to be set aside.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
WRIT    PETITION   NO.    5173    OF     2015
Vikas @ Vicky Banwarilal Saraf

VERSUS
Megha Vikas @ Vicky Saraf

CORAM:   A. S. CHANDURKAR  J.
 Dated    :   DECEMBER  14, 2015.
Citation; 2016(3) MHLJ58

Rule.  Heard finally by consent of learned counsel for the parties.
2] Challenge in the present writ petition is to an order passed by
the trial Court on an application filed by the respondent under provisions of
Order XI Rule 1 read with Rule 12 of the Code of Civil Procedure, 1908 (for

short the Code).  
3] The respondent is the original plaintiff who has filed proceedings
for maintenance under Section 18 of the Hindu Adoptions and Maintenance
Act, 1955.   In said proceedings the respondent filed an application under
provisions of Order XI Rule 1 and Rule 12 of the Code seeking discovery by
interrogatories.  In response thereto, the petitioner submitted his reply to the
interrogatories and provided the information which according to him was
within his knowledge.  By the impugned order the trial Court held that the
petitioner had not given  answers to the interrogatories correctly and issued
further directions for furnishing information as sought.  This order is under
challenge in the present writ petition.  
4] Shri A. Shelat, learned counsel for the petitioner submitted that
the reply submitted to the application moved by the petitioner disclosed all
necessary information sought by the respondent.   There was no exception
taken by the respondent to the information given and therefore the trial
Court was not justified in observing that it would draw adverse inference and
further directing the petitioner to furnish further information. 
5] Shri R. M. Pande, learned counsel for the respondent supported
the   impugned   order   and   submitted   that   no   information   with   regard   to
business of the family members of the petitioner had been given.  
6] As per the scheme of Order XI of the Code, interrogatories have
to be answered by affidavit and in case of an objection that any answer given
is insufficient, said aspect has to be determined by the Court.  The provisions

of Order XI Rules 10 and 11 of the Code indicate steps to be taken by the
party interrogating in case there is omission to answer or if the answer is
insufficient.     In   fact,   under   Order   XI   Rule   11   of   the   Code,   the   party
interrogating   has   to   apply   to   the   Court   in   that   regard.     The   aforesaid
provisions therefore do not indicate that the Court can on its own determine
the aspect of insufficiency of an answer in absence of any grievance in that
regard by the person interrogating.     
 7] In   the   present   case   the   petitioner   in   response   to   the
interrogatories as made submitted his affidavit.  No exception was taken by
the respondent on the ground that said information was either insufficient or
that there was any omission to answer.  The trial Court on its own proceeded
to record a finding that the information furnished was insufficient and by
observing that it would draw adverse inference, directed the petitioner to
furnish further information.  The course as followed by the trial Court is not
in accordance with the scheme of Order XI of the Code of Civil Procedure.
The order dated 06.07.2015 has been passed by exercising jurisdiction with
material irregularity resulting in miscarriage of justice.  The same is therefore
liable to be set aside.  
8] Accordingly following order is passed: 
[a] Order dated 06.07.2015 passed by the trial Court below Ex.
21 is set aside.  
[b] It is open for the respondent to take necessary steps in case
the   respondent   feels   that   the   information   supplied   by   the   petitioner   is

insufficient.  
[c] Rule is made absolute in aforesaid terms.  No costs. 
     
JUDGE

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