Order XI CPC | Application For Leave To Serve Interrogatories Need Not Be Decided Ex-Parte, Court Can Issue Notice On Opposite Party: Delhi HC

The Delhi High Court has observed that there is no proscription in law, either statutory or precedential, inhibiting a court from issuing notice on an application filed under Order XI Rule 1 of Code of Civil Procedure seeking leave to serve interrogatories on the opposite party, before deciding whether to grant, or refuse to grant, leave.

Justice C Hari Shankar observed that the right to serve interrogatories is not absolute, serving of interrogatories on the opposite party can only be by leave of Court.

"The sequitur would, therefore, be that the opposite party could oppose the grant of such leave," the Court said.

The Court also observed that the existence of the right in the opposite party, to object to interrogatories under Order XI Rule 6 of CPC, cannot preclude a Court from issuing notice on the application, before deciding whether to grant leave or not to grant leave.

The Court was dealing with a plea raising an issue as to whether, prior to granting leave to serve interrogatories on the opposite party, the Court is proscribed, in law, from issuing a notice of the application seeking leave to serve interrogatories, calling for a response from the opposite party on the application.

An application was preferred by the petitioner, the plaintiff before the Additional District Judge, under Order XI Rule 1 of the CPC, to serve interrogatories on the defendant. The application came up for hearing on 15th March, 2022, when the defendant submitted that he had not received any copy of the application and that, before granting leave to serve interrogatories on him, it was necessary that a copy of the application be supplied to him. The plaintiff, submitted that the prayer for grant of leave to serve interrogatories had necessarily to be decided ex parte and that the defendant was not entitled to receive any copy of the application before an order granting leave to serve interrogatories was passed.

The ADJ observed that the requirement of the Court, in taking a decision on the application seeking leave to serve interrogatories, having to take into account any offer made by the party sought to be interrogated to deliver particulars make admission or produce documents, necessarily implied that, before taking a decision on whether to grant, or not to grant, leave to serve interrogatories, the Court was required to hear the opposite party. The impugned order also noted the fact that, despite an opportunity having been granted to him in that regard, the Counsel for the petitioner was unable to invite the attention of the Court to any decision which precluded the Court from issuing notice on an application seeking leave to serve interrogatories before deciding whether to grant, or refuse, leave.

Perusing the language used in Order XI Rule 1, the Court said that use of the word "may" when referring to the power of the Court to deliver interrogatories on an application by one of the parties before it, indicates that the right to serve interrogatories is not absolute, and that a discretion vests in the Court in that regard.

"Serving of interrogatories on the opposite party can only, therefore, by leave of Court. The sequitur would, therefore, be that the opposite party could oppose the grant of such leave. Extending of an opportunity to the opposite party to, if it so chooses, oppose grant of leave to serve interrogatories is, therefore, in my view, inbuilt into Order Rule 1," the Court said.

It added "Of course, it may be that, in more cases than not, grant of leave to serve interrogatories may be the norm; that, however, cannot foreclose a Court of its right to issue notice on an application to serve interrogatories on the opposite party, before deciding whether to grant leave or not."

The Court rejected the argument that the opposite party was not entitled to any notice on an application seeking leave to serve interrogatories before leave was granted.

"In the first place, accepting of such an interpretation would result in replacing the word "may" in Order XI Rule 1 of the CPC with the word "shall", and the discretion vested in the Court, by Order XI Rule 1, on the issue of whether or not to grant leave to serve interrogatories, would stand reduced to a nullity. Secondly, the existence of the right, in the opposite party, to object to interrogatories under Order XI Rule 6, cannot preclude a Court from issuing notice on the application seeking leave to serve interrogatories, before deciding whether to grant leave or not to grant leave," the Court said at the outset.

The Court therefore concluded that no exception can be taken to the impugned order of the ADJ, issuing notice, to the respondent, on the application preferred by the petitioner under Order XI Rule 1 of the CPC, seeking leave to deliver interrogatories.

"No exception can, therefore, be taken to the decision of the learned ADJ to issue notice on the application of the petitioner under Order XI Rule 1," the Court held.

The plea was accordingly dismissed as being fundamentally misconceived.

Case Title: MAMTA v. RISHIPAL

Citation: 2022 LiveLaw (Del) 284

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