Andhra HC (Pre-Telangana)
Pittala Narsaiah vs Dontharaboina Janakamma And Ors. on 14 August, 2007
Equivalent citations: 2007(6)ALD7
ORDER G. Yethirajulu, J.
1. This is a revision petition filed by he first defendant in O.S. No. 260 of 2004 on the file of the Junior Civil Judge, Suryapet.
2. After service of notice, the second defendant remained ex parte and did not contest the suit. During pendency of the suit, against other defendants, an application, being LA. No. 56 of 2007, was filed by the plaintiff, under Order XI Rules 1, 2 and 22 read with Section 151 of the Code of Civil Procedure, 1908 (CPC), praying the Court to serve interrogatories on the second defendant and the learned Junior Civil Judge allowed the said application. Being aggrieved by the same, the first defendant preferred the present revision, contending that the Court below has no jurisdiction to permit the plaintiff to serve interrogatories on the second defendant, who remained ex parte, and when the second defendant did not choose to contest the suit, there is no question of serving interrogatories on her. Therefore, the order passed by the learned Junior Civil Judge is not in accordance with the provisions of Order XI CPC and the said order is liable to be set aside.
3. Learned Counsel for the revision petitioner drew the attention of this Court to Order XI CPC and some decisions in support of his contention. Order XI Rule 1 CPC reads as follows:
Discovery by interrogatories.-(1) 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 cross-examination of a witness.
4. Learned Counsel further submitted that the non-compliance of Order XI Rule 1 CPC will lead to some consequences, as mentioned in Order XI Rule 21 CPC, which reads as follows:
21. Non-compliance with order for discovery.- (1) Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect, and an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard.
(2) Where an order is made under Sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action.
5. Learned Counsel relied upon a judgment of the Patna High Court in Thakur Prasad v. Md. Sohayal AIR 1977 Pat. 233, wherein Order XI Rule 1 CPC was considered and the Court observed as follows:
The main object of interrogatories is to save expenses and time by enabling a party to obtain from the opponent information as to facts material to the question in dispute between them and to obtain admissions of any facts which he has to prove on any issue which is raised between them. An admission of the adversary will serve to maintain the case of the party administering the interrogatory or the answer might be destructive of his own. A party therefore who has not chosen to appear in the case and contest the plaintiff's suit cannot be asked either to discover any document or to answer any question on interrogatories.
6. In the case covered by the above decision, the plaintiff filed an application requesting to direct the defendant to answer interrogatories, but the learned Additional Munsif refused to serve the interrogatories upon the defendant No. 4, who had not entered appearance in the suit at all. In the said order, the Additional Munsif assigned a ground that it would unnecessarily delay the disposal of the title suit, which is of the year 1967. Being aggrieved by the said order, the defendant preferred the revision petition before the High Court of Patna and the High Court made the above observation. From the above decision, it was clear that a party, who has not chosen to appear in the case and contest the plaintiff's suit, cannot be asked either to discover any document or to answer any question on interrogatories.
7. In Krishna Ayyar v. Madhava Panikkar AIR 1921 Mad. 381, a Division Bench of the Madras High Court held that similar view was expressed by the Division Bench by holding that when the plaintiff is fighting for himself and on behalf of the defendants, it is not open to plaintiff to administer interrogatories to those defendants. In the case covered by the above decision, the defendants were arrayed as opposite parties. If the plaintiff is really fighting the case, on their behalf as well as for himself, it is not open to the plaintiff to administer interrogatories to the persons, who are supporting his case. In Marshall v. Langley (1889) W.N. (England) 222, it was held that the interrogatories to ex parte defendants should not be permitted, as those defendants are not within the connotation of the term "opposite party". This principle was well established in Spokes v. Grosvenor and West. End Hotel Co. (1897) 2 Q.B. 124 : 66 L.J.Q.B. 572 : 45 W.R. 546 : 76 L.T. 679, Brown v. Watkins (1886) 16 QBD 125 : 34 W.R. 293 : 53 L.T. 726 : 55 L.J. Q.B. 126, Shaw v. Smith (1887) 18 QBD 193 : 56 L.J.Q.B. 174 : 35 W.R. 138 : 5 L.T. 40 and Molloy v. Kilby (1880) 15 Ch. D. 162 : 29 W.R. 127.
8. By relying on the above judgments, learned Counsel for the revision petitioner requested to set aside the order passed by the lower Court.
9. It was contended by the plaintiff, before the Court below, that the second defendant has also signed on Ex. A.1-sale deed and the agreement of sale was held in her favour at the instance and consent or the second defendant, and that the possession of the land agreed to be sold was handed over to her by the second defendant, since the second defendant was in possession of the suit land by the date of sale. Therefore, the evidence of the second defendant is very essential for proper adjudication. But, she had been absented intentionally in collusion with the first defendant. Consequently, the second defendant was set ex parte. Therefore, the above facts have to be proved by examination of the second defendant through interrogatories.
10. The first defendant opposed the application by contending that the application is not maintainable and the second defendant cannot be treated as opponent to the plaintiff to serve interrogatories upon her. Therefore, he requested to dismiss the application. The learned Junior Civil Judge while observing that the second defendant remained ex parte and as the sale transaction with regard to the suit property took place between the plaintiff and the second defendant and since the first defendant refused to register the land in pursuance of Ex. A.1, which bears the signature of the second defendant, and as the land is in possession of the second defendant, it requires to serve interrogatories to get answers from the second defendant to ascertain the real facts and the decision of the Patna High Court in Thakur Prasad's case (supra), is not applicable to the facts of the present case. Hence, the application was allowed directing to serve the interrogatories on the second defendant.
11. After going through the relevant provisions and the decisions, as mentioned above, it is clear that the interrogatories can be served on the opposite party, but when there is no resistance from the second defendant, for the relief sought for in the suit, the second defendant cannot be treated as an 'opposite party' for the purpose of serving interrogatories. Therefore, I am of the view that the interrogatories cannot be served on the party, who did not choose to contest the suit and if the plaintiff is so particular and if the second defendant accommodates her, she can summon the second defendant as a witness to speak about the transaction, if any, happened in her presence. But, a party, who has not chosen to appear in the case and contest the plaintiff's suit, cannot be asked either to discover any document or to answer any question, through interrogatories.
12. In the light of the above circumstances and legal position, I am inclined to set aside the order passed by the lower Court.
13. In the result, the revision petition is allowed. The order, dated 15.3.2007, passed by the Junior Civil Judge, Suryapet, in LA. No. 56 of 2007 in O.S. No. 260 of 2004, is set aside. No order as to costs.