K.C. Majumdar v. Surajsingh Ramnareshsingh Rajput

1. The question here is whether, when a party to a suit is ordered to answer interrogatories, he is bound in the absence of a special direction to that effect to answer personally, or whether he can answer through some recognized agent who knows the facts; that is to say, must an affidavit be sworn to by the party himself or can this be done by a recognized agent? The plaintiff administered a set of interrogatories and the defendant was required to file a reply to them by 31st August 1939. The reply was filed but the affidavit was made by an agent of the defendant and not by the defendant himself. The lower Court thereupon stated that the defendant was at fault and saddled him with Rs. 20 adjournment costs and the defendant was told to file his reply to the interrogatories in proper form within ten days. On the next hearing, 12th September 1939, the defendant's pleader put in an application for stay because the defendant desired to contest the correctness of the previous order in the High Court. This application was not signed by the defendant either and it was rejected on that ground. On the following day, 13th September 1939, the defendant's pleader asked for further time to enable his client to comply with the Court's order about swearing the affidavit personally. Time was granted, but on condition that Rs. 25 was paid as adjournment costs. The revision is against these two orders, that is to say, against the first order of 31st August 1939 in which the reply to the interrogatories was rejected because the affidavit was not sworn to by the defendant personally and in which the defendant was required to pay Rs. 20 as adjournment costs, and against the order of 13th September 1939 where the defendant was required to pay further adjournment costs of Rs. 25.

2. The learned counsel for the plaintiff-non-applicant relies on O. 11, R. 1 of the CPC, read with Form No. 3 to Appendix C. Order 11, R. 1, states that in any suit the plaintiff or defendant may by leave of the Court deliver interrogatories in writing for the examination “of the opposite parties or any one or more of such parties.” The form in Appendix C indicates that the answer contemplated by the form should be given by the party himself.

3. As against this however there is a more general rule, O. 3, R. 1, which states that:

Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting on his behalf.

4. Then there is a proviso which states that the Court can, if it so desires, direct that such appearance or act shall be made by the party in person. The question is whether this rule, which is a general one, governs O. 11, R. 1, or not. I have not been referred to any authority on the point and it does not seem as if there are any Indian cases bearing on the subject. Mulla in his Code of Civil Procedure, Edn. 10 at p. 615, refers to some English cases under O. 11, R. 8, which state that a party to a suit is not excused from answering interrogatories on the ground that they relate to matters which are not within his own knowledge but are within the knowledge of his agents or servants if such knowledge has been acquired by them in the ordinary course of their employment. But this does not touch the matter in question here because the question here is not whether the defendant can refuse to answer the interrogatories at all (because they have been answered) but whether he must answer personally instead of through a recognized agent. On the whole, it seems to me that O. 3, R. 1, governs O. 11, R. 1. The former order is a general one and has general application. Therefore unless there is something specific to show that its provisions are not intended to apply to some act or appearance in some particular case, it ought in my opinion to be applied.

5. It is contended however that O. 3, R. 1, expressly states that it is to apply “except where otherwise expressly provided by any law for the time being in force” and it is argued that O. 11, R. 1, read with Form No. 3 to Appendix C is such other law. A similar expression was considered by a Full Bench of this Court in ILR (1939) Nag 250 (’39) 26 AIR 1939 Nag 186 , 183 IC 128 , ILR (1939) Nag 250 (FB) at p. 257. The words under consideration there are to be found in Section 89 of the CPC and are almost identical with the words in O. 3, R. 1. It was held by the Full Bench that the words “any other law” in S. 89 do not mean other parts of the Code but refer to laws other than the Code, and it is pointed out that when the intention is to exclude other parts of the Code the language used is “except as herinafter provided” or something of that kind. As these or similar words are not used in O. 3, R. 1, I am of opinion that the words used refer to laws other than the Code. In the circumstances the lower Court was, in my opinion, wrong in rejecting the answers to the interrogatories forthwith on 31st August 1939 and in requiring the defendant to pay Rs. 20 adjournment costs. The Court had power to order the defendant to answer the interrogatories in person. Had the learned Judge done so in the first instance, then of course this order would have been perfectly correct; but it appears that no such order was passed when the interrogatories were ordered to be answered. Therefore the defendant was at liberty to act either through himself or through a recognized agent as provided by O. 3, R. 1. He chose to act through a recognized agent. He therefore did what the law allowed him to do and if he did that, the learned Judge could not saddle him with costs. All he could do was to state that in the circumstances he required the defendant to answer the interrogatories personally, and if thereafter the defendant, disobeyed them he could either strike out the defence or give him another chance on terms that he pay costs. It must not however be interpreted as in any way encouraging the practice of answering through agents. As a general rule, it is salutory and wholesome that the defendant himself should be made to swear to what he says. But there will always be exceptions, and in any case as the Code allows an alternative a party cannot be penalised for following it, unless he has been expressly ordered to do the contrary.

6. Turning next to the order of 12th September 1939, the application there was rejected because it was not signed by the applicant. But there again the defendant, who was the applicant, had every right to apply through his pleader unless the Court directed otherwise. It had not directed otherwise up to that point and therefore all that the Court ought to have done was to require the defendant to make the application in person. This matter has been expressly decided in ILR (1939) Nag 157. (’38) 25 AIR 1938 Nag 272 , 177 IC 409 , ILR (1939) Nag 157 As regards the adjournment costs of Rs. 25 ordered on 13th September 1939, the lower Court had jurisdiction to pass such an order. The interrogatories ought to have been answered in person within the ten days allowed but they were not answered. Of course, the defendant has given a reasonable explanation as to why this was not done and it appears that it was not due to any contumaciousness on his part, but at the same time the order, whether right or wrong, was within the competence of the Court to make. The only question is whether, if the learned Judge had realized that the Code allows a defendant to answer through a recognized agent unless otherwise ordered, he would have required the answers to the interrogatories to be made in person. If he had not required that, then these adjournment costs would have been unnecessary. As I am interfering with the first order I think that in the interests of justice I ought to interfere with this order also.

7. The question then remains whether I have jurisdiction to interfere in revision with orders of this kind. In my opinion the matter falls within Section 115(c) of the CPC. When the Code expressly gives a party a right to perform a certain act through a recognized agent and the Court has not directed him to perform it in person, the Court cannot arbitrarily reject that act and mulct the defendant in costs because he has chosen to do that which the Code expressly allows him to do. That, in my opinion, is a material irregularity on a question of procedure and justifies interference in revision. It appears that the defendant has now complied with the Court's order and has answered the interrogatories in person. Therefore all that it is necessary for me to do is to set aside the two orders of 31st August 1939 and 13th September 1939 in so far as they relate to the payment of adjournment costs of Rs. 20 and Rs. 25 respectively. The application is allowed. Costs will be paid by the non-applicant. Counsel's fee Rs. 15.

G.N/R.K

8. Revision allowed.