119. The substance of the examination shall be reduced to writing by the Judge, and shall form part of the record.

Substance of exami

nation to be written.

This section does not apply to H. C. Punjab Cf. C., nor to P. S. C. C.

The words in section 125, Act VIII of 1859,"such examination shall (unless the pleader be the person examined) be upon oath or affirmation or otherwise according to the provisions of the law for the time being in force relating to the examination of witnesses," have been omitted, so that the examination would appear to be capable of being made without any oath or affirmation.

Construction.-Statements made by a pleader must not be construed too strictly and should be taken as a whole and omission to deny a matter pleaded, does not amount to an admission.-Natha Singh vs. Jodha, I. L. R., 6 Alla., 406.

120. If the pleader of any party who appears by a pleader refuses or is unable to answer any material

Consequence of re

fusal
pleader to answer.

or inability of question relating to the suit which the Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the Court may postpone the hearing of the suit to a future day and direct that such party shall appear in person on such day.

If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pass a decree against him, or make such order in relation to the suit as it thinks fit.

Act VIII of 1859, section 127. This section applies to H. C. and P. S. C. C.

The object of this examination is not to take evidence or to ascertain what is to be evidence in the case, but see what are the matters in dispute, and if necessary to allow the plaint to be amended-Gunga Narian vs. Tiluckram, 15 Ind. App., 119.

Material. Before acting under this section the Judge should be satisfied that the question is material-Gopal Chunder vs. Mohesh Chunder, 21 W. R., 44; and he should record the grounds of his satisfaction and the question asked - Makoond Adit vs. Rajah Suttoorghun, 17 W. R., 507. Where a case was dismissed under section 126 of Act VIII, 1859, the decision was set aside, as there was nothing on the record to show that the party "refused to answer any material question"-Kishnaji Nimkar vs. Kishnu Nimkar, 2 Bom., 340.

Lawful Excuse.-Whether an excuse is lawful or not will depend on the nature of the particular case--Doorga Dutt vs. Jheengoor, 18 W. R., 63; and before passing a decree against a person for non-attendance, the Judge should hear what he has to say, and adjudicate on the sufficiency of the excuse-Mahomed Hamidoolla vs. Durbesh, 24 W. R., 314; Bhally Mahomed vs. Nobin Chunder, 15 W. R., 269.

It may be a lawful excuse if the party objects to appear and give evidence on the ground that he lives beyond the limits mentioned in section 176 Golam Bukshee vs. Pulton Singh, W. R., Act X, 162; or is exempted under this Code - Juggut Inder vs. Soorjo Coomar, Marsh., 627; or has not had sufficient time to appear-Khadar vs. Rahiman, 3 Mad., 167; or was of necessity absent on Government service on the date fixed Cowell vs. Ishen Chunder, 18 W. R., 17. But where plaintiff's mookhtear was unable to answer certain questions necessary for fixing the proper issues, and the plaintiff, who was exempt from attendance in the Civil Court, was called on to appear or send some one who could answer, and he did neither-Nilmonee Singh Deo vs. Ram Huree, 2 W. R., 161; or he promised to appear, but did not, and gave no reason why he could not-Doorga Dutt vs. Jheengoor, 18 W. R., 63; or refused to appear on social grounds, namely, that persons of his position had a prejudice against appearing in Court-Kalee Chunder vs. Surut Soonduree, 18 W. R., 45; Nursing Deb vs. Rammohun, Marsh., 176; it was held that his case was properly decided against him.

Or make such Order.-The Court is not bound to decree the case against the party who has not appeared, and may pass any order it deems fit-Kadar Bhi vs. Raheman

Bhi, 3 Mad., 167; Roop Narain vs. Kashi Ram, 2 Alla., 67. It might proceed for instance, to hear the case-Shazada Pakaktra vs. Jakriram, 11 W. R., 5. Under section 170, Act VIII, 1859, no case could be dismissed or decreed on default unless some evidence had been given by the other party-Ishan Chunder vs. Hurish Chunder, 12 W. R., 369; Damoodhar Bhooshan vs. Rughoonath, 12 W. R., 242; Thakoor Lall vs. Brohmo Moyee, 15 W. R., 253; and on the same principle unless the plaintiff shewed a fair cause of action or the defendant a defence, the suit should not be decreed or dismissed under this section. The true rule appears to be that a suit should not be dismissed for nonattendance, unless there is a distinct order to attend, that it has been served upon the plaintiff or brought to his knowledge, that he has wilfully disobeyed it, and the evidence he has been required to give is material-Pearee Mohun vs. Hurish Chunder, 17 W. R., 141; Raj Chookun vs. Busjeet, 20 W. R., 165.

See section 176, post.

Power to deliver interrogatories.

CHAPTER X.

OF DISCOVERY AND OF THE ADMISSION, INSPECTION, PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS. 121. Any party may at any time by leave of the Court deliver through the Court interrogatories in writing for the examination of the opposite party, or, where there are more opposite parties than one, any one or more of such parties, with a note at the foot thereof stating which of such interrogatories each of such persons is required to answer:

Provided that no party shall deliver more than one set of interrogatories to the same person without the premission of the Court, and that no defendant shall deliver interrogatories for the examination of the plaintiff unless such defendant has previously tendered a written statement and such statement has been received and placed on the record.

Judicature Acts, Order 31, Rule 1. This section applies to H. C. and P. S. C. C It does not apply to rent-suits in Bengal-Act VIII of 1885, section 148, cl. (a).

Forms of Interrogatories.-See schedule IV, No 123, infra, and see Chister vs. Wortley; 18 C. B., 239; Flitcroft vs. Fletcher, 11 Exch., 543.

Opposite Party. This does not mean a party having an adverse interest, but a party between whom and the applicant an issue is joined-Molloy vs. Kirby, 15 C. D., 162; Eden vs. Weardale Co., 34 C. D., 223.

Minor. Where the opposite party is of unsound mind or a minor, see Waghji vs. Khabas, I. L. R., 10 Bom., 167, no person acquainted with the facts, can be called on to answer interrogatories, or make an affidavit of documents on his behalf-Duke vs. Stephens, 30 C. D., 189. See also Redfern vs. Redjern, 1 P. D. (1891), 139, and " MINOR," section 129, post.

an order

Order to Answer.-Leave granted to administer interrogatories is not " to answer" within the meaning of section 136, post-Prem Sukh vs. Indronath, I. L. R., 18 Cal., 420.

122. Interrogatories delivered under section 121 shall be served on the pleader (if any) of the party interrogated, or in the manner herein before

Service of interro

gatories.

provided for the service of summons, and the provisions of

sections 79, 80, 81 and 82 shall, in the latter case, apply so far as may be practicable.

This section applies to H. C. and P. S. C. C., but not to rent-suits in Bengal-Act VIII of 1885, section 148, cl. (a).

Leave of the Court, not Given.-Leave will not be given in an action for penalties by a common informer; but the fact that the answer might lay the person interrogated open to a criminal charge or to an action for penalties is not in itself, in most cases, a sufficient reason why the interrogatory should be disallowed; and, as a general rule, the party interrogated must take the objection upon oath in his answerMartin vs. Treacher, 16 Q. B. D., 507.

This chapter seems to confer on a party the right to exhibit interrogatories to his opponent, subject to the protection given by the exercise of judicial discretion, and probably to interrogate him as to every relevant matter on which he could examine him if he thought fit to call him as his witness at the trial-See Lyell vs. Kennedy, 8 App. Cas., 217, p. 234; and it is no answer to interrogatories in regard to a conversation to say that the solicitor of the party interrogating was a party to it, and that until he be examined and cross-examined, the interrogation is improper-Attorney-General vs. Gaskill, 20 C. D., 519. In giving leave the Court, as a rule, decides nothing as to the specific interrogatories, but only that there is a case for interrogating the party, that the interrogatories may possibly be in some degree relevant, that the general character of the proposed interrogatories is not improper, and that it is not sought to administer them for the mere purpose of annoyance and worry-Hall vs. Liardet, L. R., W. N. (83), 175 ; Martin vs. Spicer, 32 C. D., 592.

At any Time.-From Defendant.-Although the rule runs "at any time," a plaintiff will not be allowed discovery before filing his statement of claim-Hancock vs. Guerin, 4 Ex. D., 3; unless it is clear that he has a good cause of action, but it is unable to state it properly without the information asked for-Cashin vs. Craddock, 2 C. D., 140; Hancock vs. Guerin, 4 Ex. D., 3; Harboard vs. Monk, 9 C. D., 616. Where it was clear that defendant had accused plaintiff of forgery, but the exact words used were not known, and the parties present when the imputation was made refused to give any information, interrogatories were put to the defendant as to the precise words used-Atkinson vs. Fosbrooke, L. R., 1 Q. B., 628; and in an action for breach of duty in carrying goods by sea, a similar application was allowed, as plaintiff could not file a statement of claim before discovery-Ley vs. Marshall, W. N., 1876, p. 23. Nor as a rule may be, before the statement of defence (corresponding to defendant's written statement) has been filed, seek for discovery-Strong vs. Tappin, W. N., 1876, p. 22; for in a large majority of cases it is not possible until the defence is put in to tell whether the interrogatories are material, and it would be useless to interrogate on matters which would be at once admitted by the defendant.

Where interrogatories are delivered at such a stage of the case as render them liable to objection as improper, the defendant can, under section 125, refuse to answer unless sufficient reasons are shewn by the plaintiff (section 127)-See Mercier vs. Cotton, 1 Q. B. D., 4421. But see in connection with this case-Harboard vs. Monk, 9 C. D., 616. In an action by executors, general rule stated-Eade vs. Jacob, 3 Ex. D., 335.

Discovery from Plaintiff.-Defendant cannot obtain discovery until he has filed his written statement (section 121), and if he is anxious to seek the aid of discovery, he should file his written statement as quickly as possible, and then deliver interrogatories— See Disney vs. Longbourane, 2 C. D., 704. See also Haldane vs. Eckford, L. R., 7 Eq., 425. The best time for delivering interrogatories is after the written statements have been filed and before the settlement of issues.

The same procedure may be adopted in miscellaneous proceedings after decree. Interrogatories as to accounts pending or to make the judgment available, or to find out how the property in cases of mesne profits has been managed, have been allowed, and no doubt will be admitted under this Code. Interrogatories can only be delivered in civil actions, and to the opposite party or parties, and if there are several parties, each cannot be compelled to answer more than relates to the case against himself- Wigram, p. 70. In a suit in which a corporation was plaintiff, the defendants could not file interrogatories for the examination of its former officers not parties to the suit-Imperial Mercantile Credit Association vs. Witham, L. R., 3 Eq., 89.

Application.-Applications under these sections should be made in Chambers on petition, and the order is "The plaintiff be allowed to interrogate." This order may be subsequently discussed in Court. The duty of the Court is to determine whether the applicant should be allowed to interrogate the other side, but not to determine what questions the party interrogated should be compelled to answer. If the interrogatories are scandalous, or in any way an abuse of the process of the Court, the Court may interfere at any stage of the suit. In other cases the party interrogated may, at his 10

O'K., CIV. P.

peril, omit to answer the interrogatories to which he objects. Then the interrogating party should apply to the Court under section 127, post, for an order requiring the other party to answer or answer further, either by affidavit or viva voce examinations as the Judge directs, or the party interrogated may take a more cautious course,-he may file his affidavit in answer stating in it his objections to answer such questions as he objects to, and the interrogating party, if dissatisfied, can apply under section 127-Mundle vs. Biswas, 5 C. L. R., 509; I. L. R., 5 Cal., 707; Prem Sukh vs. Indronath, I. L. R., 18 Cal., 420.

Inquiry into propriety of exhibiting interrogatories.

123. The Court, in adjusting the costs of the suit, shall, at the instance of any party, inquire or cause inquiry to be made into the propriety of delivering such interrogatories; and if it thinks that such interrogatories have been delivered unreasonably, vexatiously or at improper length, the costs occasioned by the said interrogatories and the answers thereto shall be borne by the party in fault.

Judicature Acts, Order 31, Rule 3. This section applies to H. C. and P. S. C. C., but not to rent-suits in Bengal-Act VIII of 1885, section 148, cl. (a).

By section 121 interrogatories cannot be delivered except with the leave of the Court. This is the same as section 51 of the Common Law Procedure Act of 1854. In practice, such leave was given in Chambers, when the Judge would make enquiry into the propriety of delivering the interrogatories, and if they were objectionable, he would disallow the application with costs. Under the judicature rules the necessity of getting leave of the Court to administer interrogatories before the close of the pleadings was done away with, but by the amended rules of 1883 leave is required in every case, except where relief is sought on the ground of fraud or breach of trust.

Service of interrogatories on officer of corporation or company.

124. If any party to a suit be a body corporate or a joint stock company, whether incorporated or not, or any other body of persons empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite party may apply to the Court for an order allowing him to deliver interrogatories to any member or officer of such corporation, company or body, and an order may be made accordingly.

Judicature Acts, Order 31, Rule 4. This section applies to H. C. and P. S. C. C., but not to rent-suits in Bengal-Act VIII of 1885, section 148, cl. (a).

Member or Officer.-Formerly, in England, the officers of a corporation could not be interrogated unless they were personally parties to the suit-See Republic of Peru vs. Weguelin, L. R., 20 Eq., 149; under the present practice this is not so-Wilson vs. Church, 9 C. D., 553; the ordinary practice will probably be not to direct a member of the corporation to answer if it is shewn that there is a competent officer, generally the secretary, who has a sufficient knowledge of the facts-Pavitt vs. The Metropolitan Coy., W. N., 1883, p. 100; Manchester Val de Travers Paving Co. vs. Slagg, W. N., 1882, p. 127; as a rule, the Secretary is the proper officer-Berkeley vs. Standard Discount Co., 13 C. D., 97.

Quære, is a solicitor an officer?-See In re Great Western Forest Co., 31 C. D., 496. Practice.-The application should be made in Chambers against the company, and if there is any objection, the company appear by their solicitor, the officer does not. The Judge must be satisfied that the officer selected by the party has a competent knowledge of the facts and the means of answering-Berkeley vs. Standard Dis. Co. 13 C. D., 97; Pavitt vs. The Metropolitan Coy., W. N., 1883, p. 100.

Costs.-The company's solicitor should act for the member or officer who is directed to answer, and prepare the answers for him, and charge the company with the

cost of so doing. He should not employ a separate solicitor-Berkeley vs. Standard Discount Co., 13 C. D., 97; 9 C. D., 643.

The order should not be made if the interrogatories are objectionable. In an action on a policy an application was made for an order to deliver interrogatories to an officer of the defendant company. An objection was raised on behalf of the defendant to the interrogatories, and it was contended for the plaintiff that the nature of them could not be gone into at that stage of the case, but that defendant could object (section 125: Held, that whenever an order of Court is necessary, the interrogatories will be gone into on the application for the order, and that such order will not be granted as of course-Hewitson vs. Whittington Life Insurance Society, W. N., 1875, p. 219.

Foreign Sovereign -A foreign republic should, as far as is possible, be treated as a body corporate-Rep. Costa Rica vs. Erlanger, 1 C. D., 171, p. 174; a sovereign as a private individual-Prioleau vs. United States, L. R., 2 Eq., 659, p. 663. See note to section 129, post.

Power to refuse to

as irrelevant, &c.

125. Any party called upon to answer interrogatories, whether by himself or by any such memanswer interrogatories ber or officer, may refuse to answer any interrogatory on the ground that it is irrelevant, or is not put bonâ fide for the purposes of the suit, or that the matter inquired after is not sufficiently material at that stage of the suit, or on any other like ground.

Judicature Acts, Order 31, Rule 5. This section applies to H. C. and P. S. C. C., but not to rent-suits in Bengal-Act VIII of 1885, section 148, cl. (a).

The party interrogated must object on oath; the mere assertion of his counsel is not sufficient-McFadden vs. Mayor and Corporation of Liverpool, L. R., 3 Ex., 281.

The rule corresponding to this section allows either party to apply at Chambers to strike out objectionable interrogatories. When a party refuses to answer, the party interrogating must apply to the Court for an order under section 127, requiring him to answer, and the application should show the grounds on which it is based-See The Princess of Wales vs. The Earl of Liverpool, 1 Swans., 126. See note under section 122, ante.

Discovery is based on the following propositions :

I. It is the right, as a general rule, of a plaintiff in equity to examine the defendant upon oath as to all matters of fact which, being well pleaded in the bill, are material to the proof of the plaintiff's case, and which the defendant does not by his form of pleading admit.

II.-Courts of Equity, as a general rule, oblige a defendant to pledge his oath to the truth of his defence. With this (if a) qualification, the right of the plaintiff in equity to the benefit of the defendant's oath is limited to a discovery of such material facts as relate to the plaintiff's case or are necessary to support the case of the defendant-Eade vs. Jacob, 3 Ex. D., 335; Attorney-General vs. Gaskill, 20 C. D., 519, p. 529; Bridges vs. Bridges, 29 C. D., 29; see, however, Ali Kader vs. Gobind Dass, I. L. R., 17 Cal., 840, and does not extend to a discovery of the manner in which, or of the evidence by means of which, the defendant's case is to be established, or to any discovery of the defendant's evidence.

III.-Interrogatories for the examination of a plaintiff differ from those of the examination of a defendant in this respect, that though a plaintiff or defendant is not entitled to discovery of his opponent's case, a defendant may ask any question tending to destroy the case of the plaintiff-Hoffmann vs. Postile, L. R., 4 Ch. Čas., 673; Commissioners of Sewers of City of London vs. Glasse, L. R., 15 Eq., 302. And if in the discovery of relevant facts the names of witnesses must be disclosed, it does not take away the right -Marriott vs. Chamberlain, 17 C. D., 154.

Limitation of these Propositions.-But in this country, interrogatories cannot be framed to anticipate or supply defects of pleading or to ascertain the case of the other side. If the pleading of either party is vague, the Court may call for a further written statement, or may frame and record issues until the case raised by the pleadings is recorded with sufficient clearness-Ali Kader vs. Gobind Dass, I. L. R., 17 Cal., 840. The only important difference between the procedure in England and here is that the Court may, though the parties cannot, demand oral pleadings before settlement of issues, and it seems a matter for consideration if this difference is sufficient to deprive a party of the right to use all his remedies as laid down in Gay vs. Labouchere, 4 Q. B. D., 206; Benbow vs. Low, 16 C. D., 93, and many other case in England. It is also suggested that no such limitation is necessary, and if the Judges in India limit discovery in the manner pointed out in Parker vs. Wells, 18 C. D., 477, p. 483-7; Fennessy vs. Clark, 37 C. D., 184, p. 187; and