Thursday, 19 February 2015

Bombay HC: Factors to be considered by court while directing interrogatories to be served upon other side


  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 
by the Court.                                     
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.5675 OF 2013

Shri   Shrivallabh  Dongardasji Sikchi,   Vs­  Ibrahimkhan   S/o   Ahmadkhan,  
  
CORAM: A.S. CHANDURKAR, J.

DATED: 10­-10-­2014.
Citation;AIR 2015(NOC)208 Bom

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.
      5/10
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 

set aside.
Exhibit­57 in Regular Civil Suit No.559/2012 is 
(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.
                     
                                           JUDGE 

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