Description
Interrogatories – defective affidavit.
- Interrogatories – Answers to interrogatories must be by way of affidavit – Order XI Rule 7 of the CPC.
- An incurably defective affidavit should be struck out.
- It is unfair to blame the error of omission which lead to the defective affidavit entirely on the commissioner for oaths since the defendant was represented by competent lawyers.
- Indian case law authorities and commentaries on Civil Procedure Code are highly persuasive our courts.
- Rule 9 of order XI of the CPC deals with a situation where any person interrogated omits to answer or answers insufficiently, the consequence of which is for the interrogating party to apply to the court for an order requiring the person to answer or to answer further.
- Rule 18 of order XI of the CPC concerns a situation where any party fails to comply with any order to answer interrogatories, the consequence of which is if a plaintiff, the suit will be dismissed for want of prosecution and if a defendant, the defence, if any, will be struck out as if the defendant had not defended.
- Rule 9 of order XI of the CPC is not a condition precedent for the application of rule 18 of order XI of the CPC.
- Application for leave to present interrogatories is discretionary but the procedure for presenting them is mandatory – it is mandatory that the interrogatories when delivered have to bear a note at the foot stating which of such interrogatories each of such persons is required to answer unless they concern the two situations expressly stipulated in the proviso to Rule 1 of Order XI of the CPC.
- It is the court which has to determine which of the interrogatories it considers necessary either for disposing fairly of the suit and not the party presenting the interrogatories who is to make such determination.
- Leave to present interrogatories – there is nothing in the CPC suggesting that leave must first be sought before presenting the interrogatories.
- Rules 1 and 2 of Order XI of the CPC – the interrogatories have to accompany the application for leave since the idea is to save time and costs by shortening the procedure for presenting the interrogatories.
- Plaintiff presented interrogatories to the defendant which is a body corporate without indicating names of the particular persons who should answer the interrogatories – it cannot be said that the plaintiff has failed to comply with the mandatory procedural requirements for presenting interrogatories.
- Replying the interrogatories with a defective affidavit by the defendant amounts to no reply at all and so the defendant is placed in the same position as if he had not defended the suit with the result that the suit is to proceed ex parte against the defendant.
An affidavit that lacks a date in the verification clause and jurat of attestation is incurably defective.
