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Mamta vs Rishipal on 24 March, 2022

Author: C. Hari Shankar

Bench: C. Hari Shankar

                          $~44
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +      CM(M) 265/2022 & CM APPL. 14437/2022, CM APPL.
                                 14438/2022

                                 MAMTA                                        ..... Petitioner
                                                   Through      Mr. Mukesh Rana, Adv.

                                                   versus

                                 RISHIPAL                                       ..... Respondent
                                                   Through      None
                                 CORAM:
                                 HON'BLE MR. JUSTICE C. HARI SHANKAR
                                         ORDER

% 24.03.2022

1. The issue in this case is whether, before grant of leave under Order XI Rule 1 of the Code of Civil Procedure, 1908 (CPC) to an applicant under the said provision to serve interrogatories on the opposite party, the Court is proscribed from issuing notice to the opposite party and seeking a response on the application.

2. The learned Additional District Judge (ADJ) has observed that there is no proscription under Order XI Rule 1 or in any other provision of the CPC, to seeking a response from the opposite party on the application under Order XI Rule 1 seeking leave to serve interrogatories.

3. Order XI Rule 1 reads thus:

"ORDER XI Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.03.2022 CM(M) 265/2022 Page 1 of 3 18:30:17 Discovery and Inspection

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 person 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 cross-examination of a witness."

4. Prima facie, on a reading of Order XI Rule 1, the grant of leave to serve interrogatories is not a matter of right of either party. The provision specifically uses the word "may" while stating that "the Court may deliver the interrogatories". Leave to deliver interrogatories is, therefore, a matter of the discretion for the Court. Interrogatories may be delivered on the opposite party only by leave of the Court. In other words, the scheme of Order XI Rule 1 appears to be that a party seeking to serve said interrogatories on the opposite party has to apply for leave to serve interrogatories and the Court may, in its discretion, grant or reject the prayer for such leave.

5. Where such exercise of discretion is available to the Court, and there is no prohibition in the CPC from seeking a response from the respondent before exercising such discretion, it becomes highly debatable as to whether the decision of the learned ADJ is contrary to law.

6. Learned Counsel for the petitioner has invited my attention to Order XI Rule 6 of the CPC, which reads thus:

"6. Objections to interrogatories by answer.-- Any objection to answering any interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit, or that the matters inquired into are not sufficiently material at that stage, [or on the ground of privilege or any other ground], may be taken in the affidavit in answer."

7. No doubt, a party on whom interrogatories are served may object to the interrogatories in the manner stipulated under Order XI Rule 6. That, however, merely begs the issue at hand. The question is whether this Court, in exercise of its jurisdiction under Article 227 of the Constitution of India, should interfere with the impugned order, which merely directs service of the application seeking leave to serve interrogatories on the defendant, and calls upon the defendant to reply thereto, where there is no express prohibition or proscription, in the CPC, against following such a course.

8. Learned Counsel for the petitioner seeks a short adjournment in in order to enable him to convince the court on this aspect.

9. Re-notify on 28th March, 2022.

C. HARI SHANKAR, J.

MARCH 24, 2022 dsn Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.03.2022 CM(M) 265/2022 Page 3 of 3 18:30:17