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 Vs 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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