P.S. Rajan and Others vs K.P. John Kattarukudiyel

K. Padmanabhan Nair, J.—The Defendants 1 to 4 in O.S. No. 152 of 1998 on the file of the Munsiff Court, Perumbavoor are the revision Petitioners. They filed an application under Order XI Rule 1 of the CPC (Code for short) calling upon the 5th Defendant who is the Respondent in this Civil Revision Petition to answer certain interrogatories. The learned Munsiff dismissed the application on the sole ground that the Defendants are not entitled to file an application under Order XI Rule 1 of the Code against a co-Defendant. That order is under challenge in this Civil Revision Petition.

The learned Counsel appearing for the revision Petitioner has argued that the view taken by the Munsiff that the Defendant cannot file an application under Order XI Rule 1 of the Code against a co-Defendant is illegal. It is argued that the principle underlying Order XI Rule 1 is to enable a party to gather necessary information from the opposite party. It is also argued that the words used are opposite party and not Plaintiff and Defendant. The learned Counsel appearing for the Respondent argued that the view taken by the learned Munsiff is perfectly correct and the Defendant is not entitled to serve an interrogatory or a co-Defendant.

When one of the parties to the suit requires an information regarding the material facts of the case, he is allowed to administer to his adversary the questions to be answered by the opposite party. Such questions are called interrogatories. The main object of interrogatory is to save expenses by enabling a party to obtain from his opponents information as to material facts. A party is entitled to interrogate his opponent with a view to ascertain the case he has to defend. Order XI Rule 1 of the CPC reads as follows:

In any suit the Plaintiff or Defendant by leave of the Court may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties and such interrogatories when delivered shall have 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 party without an order for that purpose:

Provided also that interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of witness.

It is very pertinent to note that the words used are "opposite parties or any one or more of such parties". The words opposite parties do not mean or confine to Plaintiff and Defendant. It means parties between whom there is some right to be adjudicated in the action or proceedings.

In the case at hand, the question arising for consideration is whether a Defendant can be allowed to deliver interrogatories to a co-Defendant. A reading of the Rule makes it clear that a Defendant can be allowed to interrogate a co-Defendant if there is some question or an issue between them. The question whether a Defendant can be allowed to deliver interrogatories on a co-Defendant is considered in Molly v. Kilby 1880 15 Chn. 162. It was held that the word ''opposite'' means having an opposite interest. It was also held that opposite party or parties does not mean a party or parties having an adverse interest but a party or parties between whom and the applicant an issue is joined. It was further held that a co-Defendant in a counter-claim is not an opposite party. The question was considered by the Court of Appeal in Shaw v. Smith (1886) 18 Q.B.D. 193. The Court of Appeal considered the practice regarding discovery or inspection as between co-Plaintiff or co-Defendant. It was held that the application need not be as between Plaintiff and Defendant. It was held as follows:

I should construe the passages of the Judgments in Brown v. Watkins 16 Q.B.D. 125 where it is said that the application must be against an opposite party, as meaning not that it must in all cases be by Plaintiffs against Defendants or vice versa, but that it must be by and against parties between whom there is some right to be adjusted in the action.

The matter again came up for consideration in Birchal v. Birch, Crisp and Co. (1913) 2 Chn 375 in which it was held that if any right to be adjudicated between co-Plaintiffs and co-Defendants, the Plaintiff or Defendant is entitled to administer an interrogatory on a co-Plaintiff or a co-Defendant. In Anandrao Vithal Varadi v. Budra Malla ILR (1892) Bom 384 a learned Single Judge of the Bombay High Court considered the practice of discovery among co-Defendants. It was held that a Defendant may obtain discovery or inspection as against a co-Defendant if the latter can be regarded as an opposite party. It was further held as follows:

This case has, however, been discussed in the Court of Appeal in the case of Shaw v. Smith 18 Q.B.D. 193 and the Court held that ''opposite party'' did not refer only to the Defendant as contrasted with the Plaintiff, or vice versa, but to any two parties, whether Plaintiff or Defendants, co-Plaintiffs or co-Defendants, between whom it was necessary to adjust rights. Agreeing, as I do, with this view of the section, I am of opinion that there is no objection to one Defendant seeking discovery or inspection as against a co-Defendant, provided that co-Defendant can be regarded as an opposite party.

So the real question to be decided is whether the fifth Defendant can be considered as a party opposite to the revision Petitioners. It is to be noted that though the 5th Defendant is a co-Defendant he cannot be considered as a party opposite to the Plaintiff, if the revision Petitioners are able to establish that the 5th Defendant is colluding with the Plaintiff. If one of the Defendants is able to establish that the co-Defendant is colluding with the Plaintiff in such a case, the Plaintiff cannot be allowed to deliver interrogatories on that Defendant though he is impleaded as a Defendant. That is because such a Defendant cannot be considered as a party opposite to the Plaintiff though he is arrayed as a Defendant. The learned Munsiff rejected the petition filed by the revision Petitioners on the sole ground that the person on whom interrogatories are to be delivered is a co-Defendant. He did not consider whether the 5th Defendant can be regarded as an opposite party so far as the revision Petitioners are concerned. So the order passed by the learned Munsiff is unsustainable and liable to be set aside. The learned Counsel appearing for the 5th Defendant has submitted that the 5th Defendant has filed a counter-affidavit in which all points raised by the Petitioners were answered. This is a matter to be considered by the learned Munsiff.

In the result, the Civil Revision Petition is allowed. The order under challenge is set aside. The I.A. is remanded to the court below for fresh disposal. The learned Munsiff is directed to reconsider I.A. No. 3684 of 1998 and dispose of the same in accordance with law.