the Court, imposing such terms as to costs or otherwise as the Court thinks fit When any amendment is made under this section, Attestation of amend- the Judge shall attest it by his signa When a statement has been rejected under this section Effect of rejection. expressly called for or allowed by the Court. Ss. 116-119 CHAPTER IX. OF THE EXAMINATION OF THE PARTIES BY THE COURT, 117. At the first hearing of the suit, the Court shall Ascertainment whe ther allegations in plaint and written statements admitted or denied. ascertain from the defendant or his pleader whether he admits or denies the allegations of fact made in the plaint, and shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the written statement (if any) of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The Court shall record such admissions and denials. Oral examination of party, or companion of 118. At the first hearing of the suit, or at any subsequent hearing, any party appearing in person or present in Court, or any person himself or his pleader. able to answer any material questions relating to the suit by whom such party or his pleader is accompanied, may be examined orally by the Court; and the Court may, if it thinks fit, put in the course of such examination questions suggested by either party. Object of examination.-The object of this examination is not to take evidence or to ascertain what is to be evidence in the case, but to see what are the matters in dispute (e). 119. The substance of the examination shall be re Substance of exami nation to be written. duced to writing by the Judge, and shall (e) Gunga v. Tiluckram, 15 Cal. 533, 15 I.A. 119. S8. 120-121 Consequence of refusal or inability of 120. If the pleader of any party who appears by a pleader refuses or is unable to answer any material question relating to the pleader to answer. 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. Where a plaintiff appears by a pleader, the Court has no power to issue an order under this section, unless the pleader has refused or is unable to answer a material question (ƒ). CHAPTER X. OF DISCOVERY, AND OF THE ADMISSION, INSPECTION, PRODUC- terrogatories. 121. Any party may at any time by leave of the Power to deliver in- 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 permission 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. Discovery by way of answers to interrogatories.-Every party to a suit is entitled to know the nature of his opponent's case (g), so that he may know beforehand what case he has to meet at the hearing (h). But he is not entitled to know the facts which constitute exclusively the evidence of his opponent's case, the reason being that it would enable an unscrupulous party to tamper with his opponent's witnesses, and to manufacture evidence in contradiction, and (f) Satu v. Hunmantrao, 23 Bom. 318. (h) Marriott v. Chamberlain, 17 Q. B. D. p. 154. so shape his case as to defeat justice (i). The nature of a plaintiff's case is disclosed in his plaint. The nature of the defendant's case is disclosed in his written statement. But a plaint or a written statement may not sufficiently disclose the nature of a party's case. In such a case, either party may administer questions or interrogatories in writing to the other through the Court. The party to whom the interrogatories are administered has to answer them (s. 136) in writing and on oath (s. 126) except in certain cases. This is called discovery by way of answers to interrogatories; the party by his answers discovers or discloses the nature of his case. Interrogatories aiming at information as to the nature of the opponent's case will, in general, be allowed. But interrogatories aiming at information as to facts which constitute exclusively the evidence of the opponent's case will not be allowed. All this time we have been speaking of the nature of a party's case without stating what that expression means. We now proceed to explain that expression. Every suit contemplates two sets of facts, namely, (1) facts which constitute a party's case, and (2) facts by which a party's case is to be proved. The first set of facts discloses the nature of a party's case. The second set forms the evidence of his case. Thus if A sues B for damages for breach of a contract, A must prove (1) the contract, (2) the breach, and (3) the damages alleged to have been sustained by him by reason of the breach. These three facts constitute A's case, and it is to these facts that one has to turn to determine the nature of A's case. Hence B may administer interrogatories to A seeking information as to the particulars of (1) the contract, (2) the breach, and (3) the damages. But he is not entitled to administer interrogatories seeking information as to the evidence by which A will prove those three facts. Thus in the above case it is not permissible to B to ask who was present at the time when the alleged contract was made, in other words, it is not permissible to ask the names of A's witnesses (j). Ss. 121-127 deal with interrogatories. For forms of interrogatories, see Sch. IV to the Code, form No. 123, post. The sections of this chapter relating to discovery do not apply to Presi dency Small Cause Courts. They do not apply also to certain Courts outside the presidency towns. The question then arises-if a suit is instituted in a Court to which these sections do not apply, and if a party's case is not sufficiently disclosed in the pleadings (i.e., plaint or written statement), what procedure is to be adopted to inform the Court and the adversary of the exact nature of the party's case and of the facts constituting his case? The answer is that in such a case it is the function of the Court to ascertain with sufficient clearness what the case of the party is. This the Court may do by requiring the party, if he is a plaintiff, to file a written statement supplying the deficiencies in the plaint, and, if he is a defendant, by requiring him to file an additional written statement supplementing the first (s. 112). To attain the same end, it is provided by ss. 117 to 120 that the Court may examine the parties at the first hearing, not to ascertain what is to be the evidence in the case, but to determine the precise nature of the parties' case, and to see what are the matters in dispute between them. After this is done, the Court is to frame issues on which the right decision of the case appears to the Court to depend (s. 146). Having explained what discovery is, and the meaning of discovery by interrogatories, we proceed to consider, in greater detail, the cases in which interrogatories will be allowed, and those in which they will not be allowed. (i) Benbow v. Low, 16 C. D. p. 95; Re Strachan (1895) 1 Ch. pp. 445, 447-48. (j) McColla v Jones, 4 Times Rep. 12; Eade v. Jacobs, 3 Ex.D. 335; Marriott v. Cham- S. 121 S. 121 What interrogatories may be allowed.-In England, interrogatories are allowed for the following purposes : 1. To ascertain the "nature" of your opponent's case or the material facts constituting his case (k). We have already dealt with this proposition above. (b) indirectly, by impeaching or destroying your adversary's case (1). A sues B to recover Rs. 5,000 for making model machinery for exhibition. The defence is that the machinery was defective and unworkable. B may interrogate A whether the machinery did not obtain a prize at the exhibition. If it did, it is clear that the answer will tend to destroy A's case, and support B's case (m). Moreover, the answer will serve as an admission from A, and the getting of admissions by interrogatories is always allowed, for it supports the party's case (n). There is one Exception to branch (b) of rule (2) above. A sues to eject B from certain land, alleging that the land belongs to him and that B is wrongfully in possession thereof. This is an action of ejectment: A is plaintiff in ejectment, and B is defendant in ejectment. In an action of ejectment, the plaintiff must prove his own title affirmatively. It is not enough for him to impeach or destroy the defendant's title. If he does not establish his own title to the land, he will not be entitled to a decree, though he may succeed in impeaching or even destroying the defendant's title. The reason is that the defendant being in possession, he cannot be dispossessed of the land except by proof of title. Hence it is clear that it is perfectly useless to allow a plaintiff in ejectment to interrogate the defendant for the purpose merely of destroying or impeaching the defendant's title (o). And this is the Exception above referred to. But a plaintiff in ejectment is entitled to interrogate the defendant as to any matter relating to the defendant's title that may support his case directly (p). The same principles apply in the case of discovery by production of documents. See p. 155 below. The High Court of Calcutta has expressed the opinion that interrogatories in India should not be allowed for the first of the above purposes, but may be allowed for the second (q). The opinion is based on the ground that when a party has not sufficiently disclosed his case, it is the Court that has to determine the exact nature of his case by procedure under ss. 112 and 146, and that it is not therefore permissible to the opposite party to get that information by discovery. But the provisions of the said sections are, it is conceived, intended not to supersede, but to supplement, the provisions as to discovery for ascertaining the case of parties to a suit. It is submitted, with respect, that there is no reason whatever why any distinction should be drawn between the English and the Indian practice. What interrogatories may not be allowed.-These may be divided into three classes: 1. A party is not entitled to administer interrogatories for obtaining discovery of facts which constitute "exclusively" the "evidence" of his adversary's case or title (r). (k) Eade v. Jacobs, 3 Ex. D. p. 337; Attorney- 528. (p) (q) (0) Eyre v. Rodgers, 40 W. R. 137; Lyell v. 2. A party is not entitled to interrogate as to any confidential communications between his opponent and his legal advisers. 3. A party is not entitled to exhibit interrogatories which would involve disclosures injurious to public interests. For fuller information on the above rules, see notes to s. 129, under the head "Ground of objection to production of documents," p. 156 below. At what stage a defendant may administer interrogatories.-The second paragraph of the section lays down that a defendant cannot administer interrogatories until after filing his written statement. At what stage a plaintiff may administer interrogatories.—A plaintiff, however, may administer interrogatories to a defendant at any time," that is to say, even before the defendant has filed his written statement (s). As a general rule, however, a plaintiff will not be allowed to exhibit interrogatories until after the defendant has filed his written statement, because it may be that the defendant may answer in his written statement some of the very interrogatories which the plaintiff proposes to administer to him, in which event those interrogatories may be perfectly useless. The plaintiff should wait and see what admissions the defendant makes in his written statement, and may then exhibit interrogatories to obtain further admissions in proof of his case (t). "Leave of the Court."-The application for leave to administer interrogatories is, as a rule, made ex parte. In considering whether leave should be granted, the Court has to determine whether it is a fit and proper case for administering interrogatories, so that no leave will be granted if the interrogatories are scandalous or are an abuse of the process of the Court. But it is not the duty of the Court, when granting leave, to consider what particular questions the party interrogated should be compelled to answer. The proper time for considering that question is after the party interrogated has made his affidavit in answer (s. 126) (u). "Opposite party."-This does not include solely the relation of plaintiff and defendant; thus one defendant may administer interrogatories to another defendant if there is an issue joined between them (v). Where opposite party is a minor or a lunatic. It was at one time held by the High Court of Bombay that the next friend or guardian ad litem of a minor or lunatic cannot be required to answer interrogatories (vv). This decision was based upon the ground that no affidavit of documents could be required from a minor or a lunatic. But in a subsequent case it was held by the same Court that an affidavit of documents may be required from a minor defendant (w). On the other hand, it has been held by the High Court of Calcutta, that a minor cannot be compelled to give discovery by affidavit and production of documents (ww). The result would therefore appear to be that interrogatories may be administered to a minor or a lunatic in Bombay, but not in Calcutta. Points of distinction between Interrogatories and Cross-exami nation. (1.) Not every question which could be asked a witness in the box may (s) Beal v. Pilling, 38 L.T. 486; Acheson v. Henry, Ir. R. 5 C.L. 496, (t) Mercier v. Cotton, 1 Q.B.D. 424. (u) Sham Kishore v. Shoshibhoosun. 5 Cal. 707; Prem Sukh v. Indro Nath, 18 Cal. 420. (v) Molloy v. Kirby, 15 C.D., 162; Shaw v. (vv) Waghji v. Khatao, 10 Bom. 167. [S. 121 |