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Jamaitrai Bishansarup Vs. Rai Bahadur Motilal Chamaria - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 585 of 1958
Judge
Reported inAIR1960Cal536
ActsCode of Civil Procedure (CPC) , 1908 - Order 11, Rule 1
AppellantJamaitrai Bishansarup
RespondentRai Bahadur Motilal Chamaria
Appellant AdvocateSailen C. Sen, Adv.
Respondent AdvocateR. Banerjee, Adv.
DispositionApplication allowed
Cases ReferredSaunders v. Jones
Excerpt:
- .....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,.....
Judgment:
ORDER

A.N. Ray, J.

1. This is an application for leave to deliver Interrogatories. The plaintiffs suit is for the recovery of Rs. 3,05,679/14/- or Rs. 5,78,403/ 8/6. The plaintiffs case in short is that there were dealings and transactions between the defendant in the firm name of Rai Bahadur Hardut Rai Motilal Chamaria and the plaintiff for the purchase and sale of various commodities and inter alia one of the terms of business was that the plaintiff would advance monies to or on account of the defendants at the request of the defendant by way of temporary accommodation repayable on demand. The defendant in the written statement states that there were transactions but denies that the terms & conditions mentioned in paragraph 2 (a) of the plaint were agreed by and between the parties. The defendant also denies that the plaintiff is entitled to any claim or to any indemnity for any loss.

2. There are two affidavits affirmed On behalf of the defendant; one is affirmed by Sugan Chand Sarowgee on 24-7-1959 and the other is an affidavit of Rai Bahadur Motilal Chamaria affirmed on 22-9-1959. In the affidavit of Sugan Chand Sarowgee it is alleged that the interrogatories asked for are matters of evidence to be gone into at the hearing or when accounts are to be taken and further that the answers to the interrogatories are best known to the plaintiff. In paragraph 8 of that affidavit it is denied that payments were made by the plaintiff to parties on behalf of the defendant as alleged or at all. In the affidavit affirmed by Rai Bahadur Motilal Chamaria it is stated that the statements made in paragraph, 8 of the affidavit affirmed by Sugan Chand Sarowgee are correct and it is denied that payments were made by the plaintiff to parties on behalf of the defendant.

3. Counsel for the defendant contended that interrogatories should not be allowed because the plaintiff has to prove his case and unless he has discharged the onus the defendant is not liable to answer any question. It was also contended that the plaintiff should possess evidence in support of his case and he could not obtain proof of his case by extracting interrogatories. No other objection was taken to the interrogatories.

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, 1928-1 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 partiesconcerned. 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 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 during a reasonable period before the Inan in question and as to what security and at what rate of interest. Where an account is claimed orquestions of account arise, interrogatories as to details of the accounts may be allowed.

7. In the present case the interrogatories asked for are relevant and arise on the issues and will shorten the trial and may also show that the defence which is set up is unfounded. The interrogatories should, therefore be allowed.

7a. The House of Lords in the case of Lyell v. Kennedy (No. 1), (1883) 8 AC 217. observed as follows:

'It is no sufficient objection that the plaintiff may have, and to some extent (on his own showing) has, other means of proving the facts enquired after. Admissions of facts by the defendant might simplify the proof and materially diminish the expense of trial.'

8. It is not a good objection to allowing interrogatories, that the party interrogating has other means of proving the facts in question since one legitimate purpose of interrogatories is to obtainadmission.

9. In the case of Saunders v. Jones, (1877) 7 Ch. D 435, the defendant employed the plaintiff as manager of his business under a written agreement at a salary and a commission on the gross! amount of sales. Disputes arose; the defendant dismissed the plaintiff. The plaintiff commenced an action for wrongful dismissal. The plaintiff exhibited 4 interrogatories, of which the substance was to ask the defendant to specify the acts of misconduct and a fifth interrogatory asking for the total amount of the gross proceeds of sales during the period for which the plaintiff claimed remuneration. The defendant refused to answer the first four interrogatories, on the ground that they related to the case of the defendant and not of the plaintiff, and the fifth interrogatory, on the ground that the right to action was disputed and the defendant was not bound to give such amount at that stage of the action. In the present case it was also contended that the defendant having denied that monies were paid the plaintiff was not entitled to interrogatories. James, L. J. at p. 449 of the report said :

'If the plaintiff succeeds in his contention that he is entitled to a fixed commission upon the amount, his having that amount admitted would enable him at the trial, without any further enquiry or litigation, to obtain a decree for the payment of that which is due to him.'

10. In my opinion, the applicant is entitled to the interrogatories asked for.

11. I, therefore, make an order in terms of prayers (a) and (b) of the summons save and except that time is given till the 21st December, 1959 to answer the interrogatories. The interrogatories should be answered by the defendant himself and by no other person.


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