060-NLR-NLR-V-70-CEYLON-INSURANCE-CO.-LTD.-Petitioner-and-R.-M.-SUDU-BANDA-Respondent.pdf
SRI SKLANDA RAJAH, J.—Dayawalhie v. Gunaratne
261
1967 Present: Manicavasagar, J., and Samerawickrame, J.CEYLON INSURANCE CO. LTD., Petitioner, andR.M. SUDU BANDA, RespondentS.C. 350/67—Application in Revision in D. C. Colombo. 66288(M
Interrogatories—Omission to ansiuer (hem—Procedure thereafter—Civil ProcedureCode, ss. 94, 98, 100, 109.
A party who omits to answer interrogatories served on him is entitled to beheard before tho Court makes an order requiring him to answer undor section100 of the Civil Procedure Code. The party sought to bo interrogated shouldtherefore have notice of the application under section ICO, so that he rr ay showcause, if any, against an adverse order being made against him. 1
1 (1941) 42 N. L. R. 481, at 493.
262 MANICAVASAUAR J.—Ceylon Insurance Co., Ltd. v Sudu Banda
APPLICATION to revise an order of the District Court, Colombo.
E. B. WiJcramunayalce. Q.C.. with N. R. M. Dalumitte. for thedefendant -petit ioner.
Nimal Senanayake. with Bala Xadarajah, for the plaintiff-respondent.
Cur. adv. vult.
November 28, 1907. Mantcavasaoar, J.—
The plaintiff, who is the respondent to this application, obtained leaveof the original Court under Section 94 of the Civil Procedure Code todeliver interrogatories for answer by the defendant-pet it ioner. Thelatter did not answer, and the plaintiff applied to the Court under Section100 of the Civil Procedure Code and obtained an ex-parte order requiringhim to answer within 4 days. The defendant did not comply with thisorder, and the Court on the application of the plaintiff under Section 109struck out the defence.
The question which we have to determine is whether a party, whoomits to answer interrogatories served on him, is entitled to be heardbefore the Court makes an order requiring him to answer under Section100 of the Code.
The learned Judge answered this question in the negative, and heldthat no notice of the application under Section 100 was necessary in thecase of a party who omits to answer, or refuses to answer giving no reasonfor his refusal, but such notice is necessary where he answers insufficientlyor gives reasons for his refusal.
We are of the view that the learned Judge is wrong, and the distinctiondrawn, by him is not warranted by the terms of Section 100 : on the con-trary, the proviso to Section 100 requires the Court to decide, before itorders a party to answer, whether in its opinion the latter need not haveanswered under Section 98. It is obvious that the opinion of the Courtshould be after hearing both sides : the party sought to bo interrogatedshould therefore have notice of the application under Section 100 inorder to enable him to show' cause, if any, against an adverse order beingmade against him. This is an essential step, and an omission to takethis step renders an order made under Section 109 nugatory, for thereason that the Court must see that all steps and orders prior to an orderunder Section 109 have been regularly and properly made.
The order striking off the defence is set aside, and the case will goback for trial in duo course. The Court will take the steps indicated bythis order if the plaintiff desires to pursue his application under Section 100.The defendant will have the costs of this appeal, and the costs of theinquiry in the Court below'.
Samerawickrame, J.—I agree.
Appeal allowed.