004-NLR-NLR-V-46-NAMASIVAYAM-CHETTY-Appellant-and-RAGSOOBHOY-Repondent.pdf
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KEUNEMAN ?.—Namasivayam Chetty and Ragsoobhoy.
1944Present: Keuneman and Cannon JJ.
NAMASIVAYAM CHETTY, Appellant, and RAGSOOBHOY.Respondent.
6'i?—D. C. (Intij.) Colombo 14,638.
Interrogatory—Failure to answer—Order striking off defence—Powers of Court—Civil Procedure Code, ss. 100 and 109. ■
Failure to answer interrogatories does not make a defendant liable tohave his defence struck off under section 109 of the Civil Procedure Code.
In order to make the defendant liable to the penalty it is necessarythat a peremptory order should be made under section 100.
The Court has a discretion to grant an indulgence in a case undersection 109.
Karuppen Chetty v. Narayan Chetty 1 (2 C. L. Rec. 173) followed.
A
PPEAL from an order of the District Judge of Colombo. Thefacts appear from the argument.
K. Nadarajali, K. C. (with him V. A. Kandiah and S. Handy Perimpa-nayagam) for the defendant, appellant.—The plaintiff instituted thisaction claiming damages for breach of a' contract. Defendant filed
K El! NEMAN .7.—Namasivayom Chetty and Ragsoobhoy.
IS
answer, and trial was fixed for September 27, 1943, on which date it waspostponed for March 2, 1944. On November 24, 1943, the plaintiffobtained leave ex parte, under section 94 of the Civil Procedure Code,to deliver certain interrogatories on the defendant. Thereafter, Onapplication by plaintiff, the trial was again postponed for June 12, 1944.On January 21, 1944, the defendant, through his attorney filed affidavit-asking for extension of time to answer the interrogatories. Time wasaccordingly extended to March 17, 1944. On that date application wasmade on behalf of the defendant for a further extension of time foranswering the interrogatories. The learned Judge, without exercisinghis discretionary power, refused the application, struck out the defend-ant's answer and fixed the case for ex parte trial for May 5, 1944. Thepresent appealis in respect ofthe order made on March 17, 1944.
The relevantsections of theCivilProcedure Code are 94, 99, 100and
109. They correspond to sections 121, 126, 127 and 136 of the formerIndian Code and to order 11, rules 1, 8, 11 and 21 of the present IndianCode. In thepresent case noorderwas obtained by the plaintiff under
section 100 ofthe Code. Anorderunder section 109, striking outthe
defence, could have been passed only if an order had been previously-made under section 100—Ramipat Saran v. Habib Vllah Khan 1; PremSukh Chunder v. Indro Nath Banerjee 2. Further, the penalty undersection 109 would be imposed only at the discretion of Court and on aparty who is guilty of contumacious conduct—Iiaruppen Chetty v.Narayan Chetty 3 ; Appu Singho v. Jusey Appuhamy * ; Chitaley andBas's Commentary' on the Indian Civil Procedure Code (2nd ed.) Vol 2,p. 1503.
H. V. Perera, K. C. (with him N. K. Choksy and P. Navaratnarajah),for the plaintiff, respondent.—It cannot be argued that no order wasmade at any time to answer interrogatories by a certain- date. Suchan order was made on January 21, 1944, and the interrogatories wereto be answered on March 17, 1944. Under section 99 power is givento Court in the first instance to-fix a time-limit longer than 10 days.
In the present case the Court had in the first instance, fixed such a longertime-limiti Where there is a failure to perform a duty imposed by anorder made under section 99, section 100 empowers the Court to order 'the person interrogated to answer by a certain date. The order ofJanuary 21, 1944, was an order which was made under section 100 andnot under section 99. On failure to comply with it on March 17, 1944.the Could could ex mero motu, under section 109, strike out the defence.
On March 17, 1944, there were two defaults on the part of the defendant—*(1) the lailure to comply with a statutory duty, (2) the failure to complywith thi order of Court. The order striking out the defence was, there-fore. a valid one.
Cur. adv. vult.
November 16, 1944. Keunemax J.—
This appeal is taken by the defendant, appellant, against an- orderof the District Judge that his answer should be struck off and that heshould be treated as in default under section 109 of the Civil Procedure
1 A. I. R. 1926 AU. 553.3 (1920) 2 C. L. Bee. 173.
• /. L. R. 18 Cole. 420.4 (1910) 5 A. C. B. 135.
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KETTNEMAN J.—Namasivayain CUetty and Ragxnoblioy.
Code for failure to answer interrogatories. It is clear that the plaintiff,respondent, obtained the leave of the Court to deliver interrogatoriesand actually did deliver interrogatories. But failure to answer interro-gatories served under section 94 does not make a person liable to havehis defence struck off. In order that he should become liable to thispenalty it is necessary that an order should have been made under section100 requiring him to answer or to answer further either by affidavit orby viv.i voce examination. Mr. Nadarajah for the appellant contendsthat in this case there is no order made under section 100 of the CivilProcedure Code. Mr. H. V. Perera for the respondent contended thatan order under section 100 had been made on -January 21, 1944. Onthat date, which was the date originally fixed for the answering of theinterrogatories, the defendant himself moved the court, for an extensionof time for answering the interrogatories. It is clear, as the District-Judge himself says, that his application amounted to an application foran extension of time. In the journal entry of that date there appearthe words “ answers to interrogatories 17.3." Now. Mr. Perera contendsthat this was an order made on the footing that the defendant had omittedor refused to answer the interrogatories. There is no evidence in therecord that any application was made by the plaintiff on that date for anorder under section 100 and in my opinion, the language used by theDistrict Judge, " Answers to interrogatories 17.3 ’’ may very well beregarded as a mere extension of time for the answering of the inter-rogatories. I think it is clear that under section 99 of the Civil ProcedureCode the District Judge had power to extend the time for the answeringof the interrogatories. It is very difficult from the words used by theDistrict Judge to say that this was a peremptory order made undersection 100. Where a peremptory order of that kind is made, I thinkit should be made clearly and specifically and be obvious to. everybodythat it is an order under section 100. In this case the fact that theDistrict Judge may have made an order extending the time has nobearing upon the present appeal. I do not think there was any ordermade under section 100. Section 109 can only come into operationwhere an order has been made under section 100. and in view of myholding that there has been no order under section 100 at all, I thinkthe defendant did not become liable to have his defence struck off.On that ground alone the judgment of the District" Judge must be setaside. I may add that the District Judge appeals to have been und-rthe impression that he had no discretion to grant any indulgence in acase under section 109 when objection was taken to such indulgenceby the other side. This is certainly not the law. I would direct theattention of the Judge to the cases reported in '■? Ceylon Law Recorder,page 173 and 5 Appeal Court Reports page 133:
In all the circumstances I set aside the order of March 17, 1944, andsend the oase back to the District Court for any further proceedingsthat may be necessary ip the case. The appellant is entitled to the.costs of' appeal.
Cannon J.—I agree.
Appeal allowed.