Discovery by interrogatories. In
any suit the plaintiff or defendant by leave of
the Court may deliver interrogatories in
writing for the examination of the opposite
parties or any one or more of such parties,
and such interrogatories when delivered shall
have a note at the foot thereof stating which
of such interrogatories each of such persons is
required to answer:
Provided that no party shall deliver
more than one set of interrogatories to the
same party without an order for that purpose:
Provided also that interrogatories
which do not relate to any matters in question
in the suit shall be deemed irrelevant,
notwithstanding that they might be
admissible on the oral crossexamination of a
witness.”
It is well settled that only those questions that
are relevant as interrogatories are those which relate to
“any matters in question”. The interrogatories served on
the other side must have reasonably close connection with
“matters in question” Rajnarayan Vs. Indira Nehru
Gandhi (1972) 3 SCC 850.
A party has a right to submit interrogatories
relating to the matter in issue. The expression “matter”
means a question or issue in dispute in the action and not
the things about which such dispute arises. The object of
aforesaid provisions is to save expenses by obtaining
information as to material facts and to obtain admission of
any fact which the party has to prove on any issue – Union
of India Vs. Ibrahimuddin (2012) 8 SCC 148.
“The right of a party to deliver interrogatories to
his opponent and get answers from him is a valuable one in
conducting his cause and he should not lightly be deprived of
it. It must be remembered that discovery of facts and
documents often tends to shorten litigation and save expenses,
Ramlalsao v. Tansingh Lalsingh, A.I.R. 1952, Nagpur
135.
that the applicant has other means of proving the fact in
question – AIR 1960 Cal 536, Jamayat Rai Vs. Motilal.
The provisions of Order 11 Rule 1 of the Code
confer necessary discretion with the Court to grant leave for
delivery of interrogatories. Thus, it is clear that while
interrogatories should relate to a question or issue in
dispute, the object of said provision is not to enable the
applicant to know as to how his opponent is going to prove
his case. It is, therefore, obvious that while considering an
application seeking leave of the Court to deliver
interrogatories under provisions of Order 11 Rule 1 of the
Code, aforesaid aspects will have to be taken into account
by the Court.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.5675 OF 2013
Shri Shrivallabh Sikchi V Ibrahimkhan S/o Ahmadkhan,
CORAM: A.S. CHANDURKAR, J.
DATED: 10102014.
Citation; 2015(2) MHLJ 175
Rule. Heard finally with the consent of the
learned Counsel for the parties.
2.
This writ petition takes exception to the order
dated 2572013 passed below Exhibit57 in Regular Civil
Suit No.559/2012. By aforesaid order, the application
moved by the petitioner – original plaintiff calling upon the
respondents – defendants to answer interrogatories under
provisions of Order 11 Rule 4 of the Code of Civil
Procedure (for short ‘the Code’) has been rejected.
3.
The facts giving rise to the present proceedings
are as follows:
The petitioner is the original plaintiff who has
filed Special Civil Suit No.60/2006 seeking declaration that
the judgment and decree dated 5112003 passed in Special
Civil Suit No.325/1994 was null and void, the same having
been obtained by practicing fraud. According to the
petitioner, the suit property was agreed to be sold by the
respondent No.1 to the petitioner. According to the
petitioners, a document was shown to have been executed
on 321992 by the respondent No.1 by obtaining the
acknowledgment of the petitioner as having receiving a
sum of Rs.63,000/ in view of consideration for aforesaid
plot. On the basis of another document dated 1081992,
the respondent No.1 had filed Special Civil Suit No.
325/1994 seeking specific performance of the agreement of
sale in respect of aforesaid suit property. According to the
petitioner, in said suit a notice dated 1271993 had been
filed by the respondent No.1. According to the petitioner,
the decree in the aforesaid suit had been obtained by the
respondent No.1 by playing fraud. A declaration to that
effect had been sought by the petitioner in subsequent suit.
4.
The respondent No.1 filed his written statement
opposing the claim of the petitioner. It was denied that the
decree in Special Civil Suit No.325/1994 was null and void
or that it was obtained by fraud.
5.
The petitioner on 512012 moved an application
below Exhibit57 calling upon the respondent No.1 to
answer interrogatories in terms of provisions of Order 11
Rule 4 of the Code. The respondent No.1 filed his reply to
aforesaid application vide Exhibit58. According to the
respondent No.1, the application filed by the petitioner was
not tenable as the suit was at the stage of recording
evidence. The trial Court by order dated 2572013 held
that the subject matter of interrogatories sought by the
petitioner could be the subject of evidence during the trial.
As the interrogatories sought by the petitioner formed part
of evidence, the respondent No.1 could not be called upon
to deliver interrogatories which constituted part of the
evidence. On that basis, aforesaid application came to be
rejected by the trial Court. Said order is impugned in the
present writ petition.
6.
Shri V. K. Paliwal, the learned Counsel appearing
for the petitioner submitted that the learned Judge of the
trial Court erred in rejecting the application below
Exhibit57. It was submitted that the interrogatories sought
were relevant to the matter in issue and hence, the
application moved by the petitioner could not have been
rejected on the ground that the interrogatories were part of
evidence. The learned Counsel submitted that though the
trial Court observed that the interrogatories could be
delivered at any stage, by subsequently observing that as
the trial had commenced, the interrogatories could not be
allowed as the same were subject matter of evidence of the
adversary party. He, therefore, submitted that the trial
Court erred in rejecting aforesaid application.
7.
Shri S. Moharir, the learned Counsel appearing
for the respondents vehemently opposed aforesaid
submissions and supported the order passed by the trial
Court. He submitted that perusal of the interrogatories as
sought indicated that the respondent No.1 could be
submitted to cross examine and answers to aforesaid
interrogatories could be sought. He further submitted that
the burden to prove the case as pleaded was on the
petitioner and the interrogatories as sought were
unnecessary. He, therefore, submitted that no case was
made out for interfering with the impugned order.
I have carefully considered the aforesaid
8.
submissions. I have also gone through the relevant
Code reads as under:
Order XI Rule 1:
provisions of Order 11 of the Code. Order 11 Rule 1 of the
1.
Discovery by interrogatories. In
any suit the plaintiff or defendant by leave of
the Court may deliver interrogatories in
writing for the examination of the opposite
parties or any one or more of such parties,
and such interrogatories when delivered shall
have a note at the foot thereof stating which
of such interrogatories each of such persons is
required to answer:
Provided that no party shall deliver
more than one set of interrogatories to the
same party without an order for that purpose:
Provided also that interrogatories
which do not relate to any matters in question
in the suit shall be deemed irrelevant,
notwithstanding that they might be
admissible on the oral crossexamination of a
witness.”
It is well settled that only those questions that
are relevant as interrogatories are those which relate to
“any matters in question”. The interrogatories served on
the other side must have reasonably close connection with
“matters in question” Rajnarayan Vs. Indira Nehru
Gandhi (1972) 3 SCC 850.
A party has a right to submit interrogatories
relating to the matter in issue. The expression “matter”
means a question or issue in dispute in the action and not
the things about which such dispute arises. The object of
aforesaid provisions is to save expenses by obtaining
information as to material facts and to obtain admission of
any fact which the party has to prove on any issue – Union
of India Vs. Ibrahimuddin (2012) 8 SCC 148.
“The right of a party to deliver interrogatories to
his opponent and get answers from him is a valuable one in
conducting his cause and he should not lightly be deprived of
it. It must be remembered that discovery of facts and
documents often tends to shorten litigation and save expenses,
Ramlalsao v. Tansingh Lalsingh, A.I.R. 1952, Nagpur
135.
Interrogatories cannot be refused on the ground
that the applicant has other means of proving the fact in
question – AIR 1960 Cal 536, Jamayat Rai Vs. Motilal.
The provisions of Order 11 Rule 1 of the Code
confer necessary discretion with the Court to grant leave for
delivery of interrogatories. Thus, it is clear that while
interrogatories should relate to a question or issue in
dispute, the object of said provision is not to enable the
applicant to know as to how his opponent is going to prove
his case. It is, therefore, obvious that while considering an
application seeking leave of the Court to deliver
interrogatories under provisions of Order 11 Rule 1 of the
Code, aforesaid aspects will have to be taken into account
9.
by the Court.
It will thus be necessary to examine whether the
trial Court has while rejecting the application below
Exhibit57 considered the aforesaid legal aspects. The
interrogatories sought by the petitioner relating to the
notice dated 1271993, aforesaid notice dated 1271993
prima facie appears to be a matter in issue in Special Civil
Suit No.60/20066. The trial court while passing the
impugned order, however, has proceeded to hold that as
the interrogatories submitted were part and parcel of the
evidence and as the trial had begun, discovery of evidence
could not be sought. It has further observed that the subject
matter of interrogatories could be the subject of evidence
during the trial. It is thus, clear on perusal of the impugned
order that various relevant aspects have not been taken into
consideration while passing order below Exhibit57. The
trial Court has not considered the aspect that
interrogatories cannot be refused on the ground that the
applicant has other means of proving the fact in question.
As observed above, the interrogatories which support the
case of the applicant and damage/destroy the case of the
opponent would be admissible. Viewed thus, the impugned
order dated 2572013 cannot be sustained as it fails to
take into consideration various relevant and material
aspects required to be taken into account while considering
an application under Order 11 Rule 1 of the Code. The
discretion in that regard would be required to be exercised
by keeping in mind aforesaid legal aspects and the law laid
down in that regard. As the discretion in that regard is to
be exercised by the trial court which is seized of the suit, I
do not find it appropriate to consider merits of the
application for permission to submit the interrogatories
vide Exhibit57 in this writ petition. Said discretion will
have to be exercised by the trial Court in accordance with
law.
10.
Thus, as there is failure to exercise jurisdiction
vested in the trial Court, the impugned order cannot be
sustained. As noted by the trial Court in its impugned
order by referring to the decision of the Supreme Court in
A. Shanmugam V. Ariya Kshatriya Rajakula Vamsathu
Madalaya Nandhavana Paripalanai Sangam and others
reported in (2012) 6 SCC 430, in appropriate cases the
Court should encourage interrogatories to be administered.
If the impugned order though interlocutory in nature is
sustained, the petitioner would be deprived on a vital right
available to him under the Code. Moreover, to obviate a
further remand at the appellate stage if the appellate Court
finds that the trial Court was not justified in rejecting the
jurisdiction has been made out.
11.
application below Exhibit57, a case for interference in writ
Hence, the following order is passed.
(a)
The order dated 2572013 passed below
Exhibit57 in Regular Civil Suit No.559/2012 is
set aside.
(b)
The trial Court is directed to reconsider the
application moved vide Exhibit57 in
accordance with law and in the light of
observations made herein above.
(c)
It is clarified that this Court has not examined
the merits of the claim made by the petitioner
and Exhibit57 or the defence in that regard as
raised by the respondent No.1 vide Exhibit58.
The trial Court shall decide Exhibit57
independently without being influenced by any
observations made in that regard in this order.
(d)
Rule is made partly absolute in aforesaid terms
with no order as to costs.
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