1. This is an appeal against an order passed under Order XI, Rule 21 of the Code of Civil Procedure, dismissing a suit for want of prosecution, on the ground that the plaintiff had failed to comply with an order to answer interrogatories. The suit was between two trading firms and the claim was one for damages for breach of contract. The plaint was filed on the 15th of August 1917 and issues were fixed on the 10th of September 1917. On the 2nd of November 1917 the defendant put in a list of interrogatories, ten in number, and asked that the plaintiff be ordered to answer the same. This order was served on the plaintiff on the 12th of November 1917. Seven days later, that is to say on the 19th of November 1917, the plaintiff came into Court with a statement and affidavit in the course of which he answered the first two, and claimed to have also answered the third of the interrogatories. In respect of the remaining seven he objected that they were irrelevant to the issues for trial. This was an objection taken under Rule 6 of Order XI and it required adjudication by the Court. The learned Subordinate Judge seems to have thought that the only remedy open to the plaintiff, if he objected to answering any of the interrogatories, was to ask to have the interrogatories to which he objected set aside or struck out under Order XI, Rule 7. It seems to us that Rule 6 above referred to gave the plaintiff an alternative relief of which in fact he availed himself. On the 22nd of November 1917, in the absence of the plaintiff, the defendant put in an application purporting to be under Order XI, Rule 11, asking that the plaintiff be required to answer farther, that is to say, to return answers to the remaining seven interrogatories. On this an ex parts order was passed in the following terms: 'The plaintiff be asked to answer the interrogatories. If he fails to comply he will do so at his own risk.'
2. On the 26th of November 1917 the plaintiff presented to the Court a formal petition asking it to reconsider the ex parte order of November 22nd. He reiterated that the interrogatories which he had failed, to answer were irrelevant and expressly appealed to the Court to deal with this objection and to pass specific orders in respect of each of the questions objected to. It was in the order passed on this application that it seems to us that the learned Subordinate Judge went distinctly wrong. He began by saying that the order of the 22nd of November was not prejudicial to the plaintiff, a vague expression which necessarily left the parties in doubt as to the intentions of the Court. He concluded by saying that he declined to reconsider the said order. He did this admittedly without pronouncing any opinion on the question of the relevancy of any one of the interrogatories to which the plaintiff had objected. On the 1st of December 1917 the defendant put in an application under Rule 21 asking the Court to dismiss the suit, which was then set down for hearing on the 4th of February 1918. Even this application the Court did not deal with at once, but directed that it should be put up on the date of the hearing. In the interval the parties caused commissions to be issued and witnesses to be summoned. The Court then took up the defendant's petition of the 1st of December 1917, took into consideration the question of the relevancy of the interrogatories to which the plaintiff had objected, held that those interrogatories were relevant, and then without offering the plaintiff any further opportunity of answering the same, proceeded to dismiss the suit under the rule in question. The learned Subordinate Judge remarks that he was compelled to adopt this course apparently by reason of his desire to correct abuses of procedure which he had observed in the conduct of other litigations in his Court.
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