Importance of interrogatories Patna High court

1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.16929 of 2012
======================================================
1. M/S Ram Pravesh Rai Estate (P) Ltd. A Company Registered Under
Companies Act, 1956 Having Registered At Gohaua House, Sri Nagar,
Siwan District -Siwan At Present 44, Patliputa Colony, P.S. Patliputra,
Town And District – Patna Through Its Managing Director Shri Ram
Pravesh Rai Son Of Shri Kamla Rai By Profession Class – I Government
Contractor.
…. …. Plaintiff/Petitioner
Versus
1. Sri Rajesh Kumar Singh @ Munna Son Of Late Paras Nath Singh
Resident Of 16A, Bandel Road, Kolkata Permanent Address – Baniya, P.O.
– Chakaram, P.S. – Sariya, District – Muzaffarpur.
2. The State Bank Of India, A.D.B. Branch, Sariya, Rewa Road Saraiya,
P.O. – Saraiya, District, District – Muzaffarpur Through Its Branch Manager.
…. …. Defendants/Respondent/s
======================================================
Appearance :
For the Petitioner : Mr. Binod Kumar Singh, Advocate
For the Respondent No.1 : Mr. R. K. Agrawal, Advocate
Mr. Shive Kumar, Advocate
For the Respondent No.2 : Mr. Alok Kumar Choudhary, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI

C A V O R D E R
6 12-01-2016 Petitioner has challenged order dated 13.07.2012 passed
by Sub-Judge, VII- Muzaffarpur in Money Suit No. 16 of 2010
whereby and whereunder rejected the prayer of the petitioner
made under Order-XI Rule 1 & 2 of the C.P.C.
2. In order to properly adjudicate upon the dispute, a
brief fact of the case has to be stated.
Respondent/Defendant No.1 Rajesh Kumar Singh @
Munna is said to have opened a bank account under Respondent
No.2, State Bank of India, A.D.B. Branch, Saraiya in the name of
2
plaintiff in collusive manner and managed to siphon huge amount
appertaining to Rs. 8,18,62,394/- whereupon Money Suit No.
16/2010 has been filed. On being noticed, both the
Respondents/defendants appeared. Because of the fact that
Respondent/defendant no.1, Rajesh Kumar Singh @ Munna failed
to file WS within the stipulated time, therefore, he has been
debarred. However, Respondent/defendant No.2, State Bank of
India, A.D.B. Branch, Saraiya has filed WS controverting the
allegation (Annexure-3). Subsequently thereof, petitioner/plaintiff
filed petition under Order-XI Rule 1 & 2 (Annexure-5) along with
questionnaire in terms of Appendix –„C‟ whereupon an objection
has been raised by the Respondent/Defendant and after hearing the
parties, by the order impugned the learned lower court had
rejected the prayer made on behalf of petitioner/plaintiff, hence
this petition.
3. It has been submitted on behalf of learned counsel
for the petitioner that from perusal of the order impugned, it is
evident that learned lower court had ignored the basic principle of
law relating to interrogatories and that happens to be reason
behind that several severe loopholes are found. The first and
foremost argument on this score happens to be with regard to
application of interrogatories which, as per submission, has been
3
provided for early disposal of the suit, side by side, to slip from
adopting cumbersome procedure. Any sort of admission or
disclosure furnished by adversary on interrogatories is to be taken
into account while adjudicating upon the matter and on account
thereof, there happens to be relevancy of interrogatory in each and
every case. So far this particular case is concerned, that has got
much more importance because of the fact that the
Respondent/Defendant No.1 posed himself to be Managing
Director of firm, M/s Ram Pravesh Rai Estate (P) Ltd and further
succeeded in opening account in the name of aforesaid firm duly
represented by him in collusion with the bank officials and on that
very score got a huge amount deposited as well as siphoned
therefrom. Therefore, the questionnaire so put forward, in case
allowed, would have revealed an actual affair and on account
thereof, would have shortened the cumbersome procedural law,
whereunder the petitioner is found relinquished to call for each
and every document having in possession of
Respondent/Defendant No.2, State Bank of India, A.D.B. Branch,
Saraiya, for an exhibit of the record.
4. It has also been submitted that Hon‟ble Apex Court
have taken note of the aforesaid provision of law and held that
Subordinate courts should follow such procedure whenever so
4
prayed for to cut short the time expected in consuming while
arriving at finality of the litigation. It has also been submitted that
principle has been framed by the Hon‟ble Apex Court and in
likewise manner criteria has been laid down for exercising the
eventualities of the interrogatory. The facts of the present case
fully fit in, hence the order impugned does not justify its
relevance.
5. It has further been submitted that learned lower court
had blatantly refused against Respondent/Defendant No.1 on the
ground that he has not filed WS though proceeding against him
has been allowed to sail under Rule-VIII Rule 10 C.P.C. That
means to say, even in absence of his WS, the
Respondent/Defendant No.1 has got active involvement during
trial. Learned counsel for the petitioner also relied upon AIR 2012
SC 2010 (Shanmugam v. Ariya Kshtriay Rajakula Vamsathu
Madalaya Nandhavana Paripalanai Sangam), AIR 2000 Kerala
24 (P. Balan v. Central Bank of India, Calicut), AIR 1960
Calcutta 536 (Jamaitrai Bishansarup v. Rai Bahdur Motilal
Chamaria), (1972) 3 SCC 850 (Raj Narain v. Smt. Indira Nehru
Gandhi).
6. On the other hand, learned counsels representing the
respective Respondents/defendant had consistently and conjointly
5
supported the order impugned. Furthermore, it has been submitted
on behalf of learned counsels for Respondent/Defendant no.1 that
the learned lower court had rightly considered and opined that on
account of absence of WS on his behalf does not attract him to be
served with an interrogatory. Furthermore, it has been submitted
that from the questionnaire so placed, it is apparent that
petitioner/plaintiff had tried to collect the evidence of which he
happens to be deficient one. Apart from this, it has also been
submitted that obligation lies upon plaintiff to prove its case and
the purpose of interrogatory is not for collecting evidence nor it
can be a replica of the plaint rather it happens to be a provision
made available to cut short the matter by way of an answer at the
end of the adversary over the lis. From the questionnaire, it is
apparent that it happens to be nothing than a brief fact of the plaint
so formulated in the form of question and on account thereof, have
rightly been rejected by the learned lower court.
7. Learned counsel representing Respondent/Defendant
No.2 has raised so many legal as well as factual grounds in order
to dismantle and demolish the castle built by the petitioner. The
first and foremost argument happens to be with regard to
maintainability of the instant petition and for that it has been
submitted that the aforesaid issue would not be entertainable under
6
Article 227 of the Constitution of India because of the fact that
allowing or rejecting the prayer for interrogatory would not come
under the process of superintendence by the High Court in the
background of the fact that the same happens to be within the
exclusive domain of the learned lower court. Furthermore, it has
been submitted that adjudication of interrogatory, in case, so
refused at an elementary stage is to be adjudicated upon by the
appellate court. Therefore, the present petition is not maintainable.
8. It has also been submitted that WS has already been
filed on his behalf which happens to be Anneuxre-3 of the main
petition and from perusal of the same, it is evident that on each
and every aspect as divulged in the plaint, there happens to be
proper reply. So far documents are concerned, the relevant
documents which happen to be under the custody of bank in case
so directed by the learned lower court even at the prayer of the
petitioner would be made available. Apart from this, it has also
been submitted that petitioner had filed plaint with a pre-requisite
mind and the questionnaire so furnished speaks in same manner
which, if allowed, would incriminate the Respondent/Defendant
no.2 and that being so, is found completely barricaded under
Order XI of the C.P.C. So submitted that petitioner has got no case
and that being so, the order impugned is fit to be affirmed.
7
9. Also relied upon AIR 1920 Sind 1 ( Yusifally
Alibhoy Karimji & Co. v. Haji Mahomed Haji Abdullah), AIR
1970 Mysore 254 (In re B.V. Padmanabha Rao (Somnath Iyer
C.J.), (2003) 6 SCC 765 (Islamic Academy of Education v. State
of Karnataka), (2015) 1 SCC 379 (Himalayan Coop. Group
Housing Society v. Balwan Singh).
10. AIR 1920 Sind 1 ( Yusifally Alibhoy Karimji & Co.
v. Haji Mahomed Haji Abdullah) has been relied upon by the
learned counsel for the Respondent/Defendant No.2 in order to
oust jurisdiction of this Court while exercising its power of
superintendence under Article 227 of the Constitution. From
perusal of the same, it is evident that the same is not applicable in
the present circumstance because of the fact that Article 227 has
been introduced subsequently and on account thereof, there was
no discussion with regard to exercising of power of
superintendence under Article 227 of the Constitution though had
held that refusal to allow interrogatories is to be seen at the
appellate stage.
11. In like wise manner, in the case of Himalayan
Coop. Group Housing Society v. Balwan Singh as reported in
(2015) 1 SCC 379 it is apparent that the same is not going to give
any sort of bonanza in favour of Respondent/defendant No.2
8
because of the fact that the Hon‟ble Apex Court had not curtailed
the power of superintendence rather had reiterated under para-15
and 16 which is as follows:-
15. The first issue need not detain us for long. It
is the stand of the learned counsel for the respondents,
that, since the Writ Petition that was filed was both
under Articles 226 and 227 of the Constitution of India,
the Court apart from examining the merits of the Writ
Petition could also issue incidental and ancillary
directions to do complete justice between parties
litigating before
it. We do not agree. The issue in our view is no
more debatable in view of the decision of this Court in
Jai Singh vs. MCD (2010) 9 SCC 385. The Court has
stated: (SCC . 390, para 15)
15. …….. we may notice certain well-recognised
principles governing the exercise of jurisdiction by the
High Court under Article 227 of the Constitution of
India. Undoubtedly the High Court, under this article,
has the jurisdiction to ensure that all subordinate courts
as well as statutory or quasi-judicial tribunals, exercise
the powers vested in them, within the bounds of their
authority. The High Court has the power and the
jurisdiction to ensure that they act in accordance with the
well-established principles of law. The High Court is
vested with the powers of superintendence and/or
judicial revision, even in matters where no revision or
appeal lies to the High Court. The jurisdiction under this
article is, in some ways, wider than the power and
jurisdiction under Article 226 of the Constitution of
India. It is, however, well to remember the well-known
adage that greater the power, greater the care and
caution in exercise thereof. The High Court is, therefore,
expected to exercise such wide powers with great care,
caution and circumspection. The exercise of jurisdiction
must be within the well-recognised constraints.”
(emphasis supplied)
16. The scope and extent of power of the Writ
Court in a petition filed under Article 226 and 227 of
the Constitution came up for consideration before
9
three Judge Bench of this Court in the recent case of
Radhey Shyam and Anr v. Chhabi Nath & Ors., Civil
Appeal No.2548 of 2009. This Court observed that
the Writ of Certiorari under Article 226 though
directed against the orders of a inferior court would
be distinct and separate from the challenge to an
order of an inferior court under Article 227 of the
Constitution. The supervisory jurisdiction comes into
play in the latter case and it is only when the scope
and ambit of the remedy sought for does not fall in
purview of the scope of supervisory jurisdiction
under Article 227, the jurisdiction of the Court under
Article 226 could be invoked.
12. Therefore, there happens to be no hitch nor any
kind of legal flaw in entertaining as well as maintaining the
present petition under Article 227 of the Constitution. However,
the same is found limited as well as to be exercised within the
bounds of law to persuade the subordinate court to proceed in
accordance with law. Therefore, application of Article 227 of the
Constitution is not only for correcting the mistakes committed by
the subordinate court, rather to aspire the subordinate court to act
in accordance with law.
13. Now coming to floor, it is apparent that object and
purpose of serving interrogatories is to enable a party to require
information from his opponent for the purpose of maintaining his
own case and for destroying the case of the adversary and as such,
it not only shorten the trial proceeding, save time of the court, it
10
also deliverance the party from expenses, consumption of time as
well as burden to collect and produce evidences. Side by side, it
should always be guarded in a way to prevent misuse.
Furthermore, as is apparent, it should be confined to the facts
which are relevant to the matters in question in the suit. However,
under Order-XI Rule 6, 7 the grounds have been enumerated
whereupon interrogatories could be refused. Basically, it has been
settled at rest by different judicial pronouncement as:-
(i) A party is not entitled to administer interrogatories
for obtaining discovery of facts which constitute exclusively the
evidence of his adversary‟s case or title.
(ii) A party is not entitled to interrogate as to any
confidential communications between his opponent and his legal
adviser.
(iii) A party is not entitled to execute interrogatories
which would involve disclosures injurious to public interest
14. Now coming to the controversy over applicability of
interrogatory, the Hon‟ble Apex Court in Raj Narain v. Indira
Gandhi as reported in AIR 1972 SC 1302 has held:-
27. Questions that may be relevant during crossexamination
are not necessarily relevant as
interrogatories. The only questions that are relevant as
interrogatories are those relating to “any matters in
question” The interrogatories served must have
reasonably close connection with “matters in question”.
11
Viewed thus, interrogatories 1 to 18 as well as 31 must
be held to be irrelevant.
15. In K. Meenakshisundaram v. S.R. Radhakrishna
Pillai as reported in AIR 1960 Madras 184 wherein it has been
held:-
4. The next objection taken by the learned counsel
against the maintainability of this civil revision
petition was on the ground that the respondent in the
original petition was bound to answer the
interrogatories as it was intended to simplify the
matters before the actual trial of the petition took
place; and that as a matter of fact, all the questions
that have been included in the interrogatories to be
administered to the respondent in the original petition
are quite simple and do not lead to any
complications; and that it was within the power of the
election tribunal to order such interrogatories.
It is true that under O. 11, R. 1 and following the
rules under that order the election tribunal acting as a
tribunal in conformity with the rules of the Civil
Procedure Code, is empowered to_ order
interrogatories. But, before interrogatories could be
ordered it is also incumbent upon the Tribunal
functioning as a judicial authority to apply its mind
and see the effect, import and significance of the
interrogatories that are sought to be administered the
respondent by the petitioner in the original petition.
Though the interrogatories have been claimed by
the learned counsel for the respondent in this civil
revision petition to be quite harmless and simple,
still, it cannot be denied that when they will be put to
the petitioner in this civil revision petition, to be
answered by him, there will be a lot of
inconvenience, and also incrimination of himself by
reason of the answers that he is expected to give to
these questions. Simply because the election tribunal
has powers under the Civil Procedure Code under
which the election tribunal proceedings are to be
conducted, it does not mean, however, that all
12
interrogatories that are submitted to the court could
be directed against the respondent forthwith. If there
is any objection from the respondent to the answering
of these interrogatories, it is the bounden duty of the
court to examine as to how far they are tenable in the
present case.
A reading of the interrogatories would certainly
indicate that these interrogatories are not so innocent
and so simple as the learned counsel would appear to
make them. That the respondent is not bound to
answer the interrogatories which are likely to lead
into an incrimination of himself in any criminal
offence, has been held in several cases of the English
as well as the Indian courts. Suffice it for me to refer
to only two decisions of the English cases reported in
Queen’s Bench Division Vol. II and X. The first
decision is in Atherley v. Harvey, 1876-2 QBD 524,
where it has been held :
“Interrogatories asking the defendant whether he
has composed or published an alleged libel are
objectionable, and will be struck out without
requiring the defendant to object to them by way of
answer.”
In this decision it is cited :
“Demurrers to discovery may be arranged under
the following heads : 1. That the discovery may
subject the defendants to pains and penalties, or to
some forfeiture, etc. If, therefore, a bill alleges
anything which, if confessed by the answer, may
subject the defendant to a criminal prosecution – the
defendant may object to the discovery.” Lush J.
referred to Wigram on Discovery, 2nd Edn. P. 80, S.
130 to the following effect,
“If a question involves a criminal charge, the
plaintiff is not entitled to an answer to such question,
however material it may be to the plaintiff’s case
citing Thorpe v. Macauley, (1820) 5 Madd. 218 at p.
229. (1876-2 QBD 524 at pp. 525 and 528). Mellor J.
discussed the definition between the powers
conferred on the Judges by the Common Law
Procedure Act and the Rules of Equity which were
binding upon the Judges. The learned Judge held :
“Where there is any conflict between the rules of
law and the rules of equity, the rules of equity are to
13
prevail, and consequently even a tribunal composed
of the same Judges, as men though not the same
judges in their character as judges, since they are now
judges of the High Court, will be no longer governed
by the clauses of the Common Law Procedure Act, if
those clauses conflict with the rules of equity, but
will be governed by the rules of equity.” 1876-2 QBD
524 at pp. 525 and 528.
In the instant case, what the learned counsel seeks
to emphasise is that it was within the powers of the
Tribunal to order interrogatories; and, therefore, he
was right in having ordered those interrogatories. But
the fact remains that the tribunal did not consider the
rules of equity which ought to have been in its mind
when it was ordering the interrogatories. As already
observed, to possess the power to order is one thing;
and to find out whether such interrogatories could be
administered at all is another, and in so far as this the
election Tribunal does not appear to have exercised
its mind in accordance with the rules of equity,
despite the fact that the common law denies
interrogatories to the respondent. Field J. concurring
with Mellor J. has observed,
“It is well established in equity that a bill of
discovery for the purpose of obtaining the
information which is asked for here would be
demurrable, that is, the court of Chancery would not
allow the defendant to be harassed by having to
answer such questions, but would prevent them from
being put,” (1876-2 QBD 524 at p. 529).
The third Judge also concurred with the other two
Judges. In Lamb v. Munster, 1882-10 QBD 110 at p.
111, it was held,
“An objection to answer interrogatories which is
made by affidavit on the ground of the tendency of
the answer to criminate the person interrogated may
be valid, although not expressed in any precise form
of words, if, from the nature of the question and the
circumstances, such a tendency seems likely or
probable. In an action for libel the defendant pleaded
a denial of the publication, and to interrogatories
asking him, in effect, whether he published the libel
he stated by his affidavit in answer; ‘I decline to
answer all the interrogatories upon the ground that
14
my answer to them ‘might’ tend to criminate me.”
16. In Jamaitrai v. Motilal Chamaria as reported in
AIR 1960 Calcutta 536, it has been held:-
4. One of the issues in this suit is whether there
was a term of business as alleged by the plaintiff and
whether payments were made by the plaintiff to the
defendants. In the case of Sutherland (Duke) v.
British Dominions Land Settlement Corporation,
1926-1 Ch 746, Mr. Justice Tomlin said that the
administering of interrogatories is a step which is
more often desirable than undesirable and is to be
encouraged rather than to be discouraged, because
they not infrequently bring an action to an end at an
earlier stage than otherwise would be the case, to the
advantage of all parties concerned. The observations
of Cotton L. J. in Attorney General v. Gaskill (1882)
20 Ch D 519 relied on by Mr. Sen, are as follows :
“The right to discovery remains the same, that is
to say, a party has a right to interrogate with a view to
obtaining an admission from his opponent of
everything which is material and relevant to the issue
raised on the pleadings. It was said in argument that it
is not discovery where the plaintiff himself already
knows the fact, but that is a mere play on the word
‘discovery’. Discovery is not limited to giving the
plaintiff a knowledge of that which he does not
know, but includes the getting an admission of
anything which he has to prove on any issue which is
raised between him and the defendant. To say that the
pleadings have raised issues and that therefore the
interrogatories should not be allowed is an entire
fallacy. The object of the pleadings is to ascertain
what the issues are, the object of interrogatories is not
to learn what the issues are, but to see whether the
party who interrogates cannot obtain an admission
from his opponent which will make the burden of
proof easier than it otherwise would have been.”
5. In accordance with the general rules as to
discovery interrogatories may not extend to the
evidence where with the opposite party intends to
15
support his case at the trial, or to the contents of his
opponent’s brief or to the names of his witnesses or to
the facts which merely support the case of the party
interrogated. Interrogatories must be confined to
matters which are in issue or sufficiently material at
the particular stage of the action at which they are
sought to be delivered, or to the relief claimed
including the amount of the damages, and as a
general rule, perhaps to matters which are relevant to
the facts directly in issue, but under some
circumstances they may extend to the facts the
existence or non-existence of which is relevant to the
existence or non-existence of the facts directly in
issue. In the case of Marriot v. Chamberlain, (1886)
17 QBD 154, in an action for libel where the
defendant pleaded that the statement made was true,
the Court allowed interrogatories to be administered
to the plaintiff as to the person in whose hands he had
seen a certain letter which the plaintiff alleged had
been signed by the defendant, but which the
defendant alleged to have been fabricated by the
plaintiff, and the names and addresses of persons to
whom the letter had been sent. Lord Esher M.R. held
that the interrogatories are permissible as relating to
matters which, though not directly in issue, are
material to the issue and that the right to interrogate
is not confined to the facts directly in issue, but
extends to any facts the existence or non-existence of
which is relevant to the existence or non-existence of
the facts directly in issue. It has also been held that
enquiries as to facts which tend to show that the
defence set up is unfounded ought not to be excluded
because the matters enquired after are not directly
relevant to the issue in the case, but only tend to
show that the defence set up is not a real one. (See Re
: Morgan; Owen v. Morgan (1888) 39 Ch D 316).
6. Interrogatories should be confined to
obtaining from the party interrogated admissions of
facts which it is necessary for the party interrogating
to prove in order to establish his case. In the case of
Nash v. Layton, (1911) 2 Ch 71, the defendant
pleaded that the plaintiff was a money lender and the
defendant was held entitled to interrogate the,
plaintiff as to what other loans he had transacted
16
during a reasonable period before the loan in question
and as to what security and at what rate of interest.
Where an account is claimed or questions of account
arise, interrogatories as to details of the accounts may
be allowed.

17. Whether Respondent/defendant no.1 could be
directed as has been refused by the learned lower court is found
fully answered in the case of Thakur Prasad v. Md. Sohayal as
reported in AIR 1977 Patna 233 wherein it has been held:-
2. That may be one of the grounds, but in my
opinion there is yet another and stronger ground to
maintain the order. The right of making discovery
and inspection is given under O. XI of the Civil P. C.
The main object of interrogatories is to save expenses
and time by enabling a party to obtain from his
opponent information as to facts material to the
questions 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 inter-rogatory or the answer
might be destruc-tive of his own case. A party
therefore who has not chosen to appear in the case
and contest the plaintiff’s suit can-not be asked either
to discover any document or to answer any question
on interrogatories. This view also seems to in
keeping with the penal clause pro-vided under R. 21
of O. XI which pro-vides that where any party fails to
com-ply with any order to answer interrogatories, or
for discovery or inspection of his suit dismissed for
want of prosecu-tion, 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, this penalty
cannot be visited to a defendant who has not chosen
to appear to contest a suit. Although there does not
appear to be any decision of any High Court of India,
to me on con-sideration of the entire scheme of the
Order, it appears that interrogatories as a general rule
17
should not be served until after the defence is filed as
until then, it is not possible to fix the area of the
controversy between the parties and the very purpose
of this provision cannot be fulfilled.
18. Therefore, importance as well as purpose of
interrogatory is found duly highlighted at every occasion
whenever the matter has come up for adjudication. Apart from
identifying the criteria over which interrogatories are not
permissible, in terms of Order-XI Rule 6, it should not be
“fidgety”. From perusal of Annexure-5, it is evident that the
questionnaire so formulated are not only fishing rather is based
upon pre-determined mindset, and on account thereof, its answer if
allowed will incriminate and thus, rightly been refused by the
learned lower court.
19. Hence, instant petition is found devoid of merit
and is, accordingly, rejected. However, it will not barricade the
parties to revisit, in case, proceeded in accordance with law.
Patna High Court
January 12th 2016
Perwez/AFR
(Aditya Kumar Trivedi, J)
U