KUCHIMANCHI SUBBA RAO Vs. KANCHANA PRABHAKARA RAO

JUDGEMENT

(1.) The petitioners are defendants in O.S. No.83 of 1991 on the file of the Court of Senior Civil Judge, Amalapuram. The suit was filed by the first respondent herein for specific performance of agreement of sale of plaint schedule property. The first petitioner first defendant is contesting the suit and denying the execution of agreement of sale. The plaintiff filed I.A. No.1194of 1999 under Order XI Rule 1 of Code of Civil Procedure, 1908 (CPC) seeking leave of the trial Court to serve interrogatories on the first defendant. The said application was allowed on 29-12-1999. After receiving the interrogatories third defendant filed an affidavit presumably under Rule 8 of Order XI of CPC in answer to interrogatories. This was filed on behalf of the first defendant who was statedly elderly and aged person having defect in hearing. Be that as it Is, alleging that the Interrogatories have not been answered by the first defendant, first respondent moved an application purportedly under Order XI Rule 21 of CPC praying the trial Court to strike off the defence of first defendant in O.S. No.83 of 1991. This application was opposed by the defendants inter alia contending that the affidavit filed by third defendant on behalf of the first defendant is due and proper compliance and proper answering of the interrogatories. This objection was overruled and by impugned order dt. 14-8-2000 the Court of Senior Civil Judge, Amalapuram, struck off the defence of the first defendant. Aggrieved by the same, present Civil Revision Petition is filed. While the Civil Revision Petition was pending before this Court, first petitioner/first defendant passed away and a Memo is filed by petitioners 2 and 3 to the effect that they are legal representatives representing the estate of the deceased first petitioner.

(2.) The learned counsel for the petitioners raised various contentions. However, having regard to the core question as to whether it is competent for the trial Court to strike off the defence under Order XI Rule 21 of CPC without there being an order to the first defendant to answer the interrogatories served on him under Order XI Rule 11, the defence can be struck off. It is not necessary to advert to various other questions raised in the matter. Indeed, the question is also no more res Integra. Before referring to two relevant binding precedents, it is necessary to notice the scheme of Order XI of CPC.

(3.) The procedure for discovery and inspection is ordered in Order XI. Rules 1 to 11 and Rules 21 to 23 deal with interrogatories, whereas Rules 12 to 20 deal with procedure for discovery of documents. Insofar as interrogatories are concerned, the law provides for three stages. In the first stage, the plaintiff or the defendant has to obtain leave of the Court for delivering Interrogatories in writing on a defendant or defendants or the plaintiff or plaintiffs, as the case may be. Such interrogatories had to be separately served on each person requiring to answer. After obtaining permission from the trial Court, the interrogatories are to be served in Form No.2 in Appendix-C on the person who is required to answer. The person receiving interrogatories is required to answer by way of an affidavit (see Rule 8 of Order XI). In second stage, if a person on whom interrogatories are served does not comply with by filing affidavit in answer to interrogatories, the plaintiff or the defendant who obtained leave of the Court to serve interrogatories has to again file another application under Order XI Rule 11 of CPC. Such application can be filed when the person omits to answer interrogatories or answers interrogatories insufficiently. At that stage, the Court can compel the person to answer interrogatories by passing an order either requiring to answer the interrogatories by affidavit or by vis-a-vis (sic. viva voce). In case such an order is not complied with, the same would result in penal consequences which can either be dismissal of the suit or striking off the defence. That is the final stage, which is provided under Order XI Rule 21 of CPC, which reads as under: O.XI R.21. Non-compliance with the order for discovery:-