MARIAPPAN Vs. NALLA SEVUGAN SERVAI

JUDGEMENT

(1.) IN this case two suits were filed on two promissory notes executed by the father of the defendants in favour of the plaintiff. The defendant's father put in a written statement alleging want of consideration. Issues were framed on 1 February 1930. Defendant 1 appears to have died soon after and his minor sons were added as legal representatives. They filed an additional written statement and additional issues were framed on 15 April 1930. There were a number of adjournments and there was an ex parte decree on 25 October 1930. This ex parte decree was set aside on 15 October 1931 by the District Court (C.M.A. No. 18 of 1931). The trial was then adjourned to 27 November 1931 and on that day the present petitioners, who were defendants 2 and 3 put in an application for issuing certain interrogatories to the plaintiff. On this the Court passed the following order: I think that on a simple suit on a promissory note, the interrogatories sought to be exhibited are irrelevant although they may not be so in actual cross-examination. I dismiss this petition with costs.

(2.) THIS civil revision petition is put in against this order. The onus in this case lay entirely on the defendants and it appears to me that they cannot escape that onus by laying no evidentiary basis for their defence but seeking to get admissions from the plaintiff by interrogatories. The learned advocate for the petitioner quotes Baijnath Kodia V/s. Raghunath Prasad AIR 1914 Cal 767. But that case is obviously distinguishable because the hundi was attacked as a forgery and the initial onus of proof lay with the plaintiff who, if he did not let in evidence would have had his suit dismissed. THIS appears to me to be entirely different from interrogatories by the party on whom the onus of proof entirely rests and who has not attempted to discharge this onus in the smallest possible degree. It seems to me to allow the interrogatories in this case would be to open the door wide for parties to avoid opening the case and taking up the onus of proof which lies on them, and to cast it instead on the other party on whom it does not lie, I express no opinion as to whether such interrogatories may not be issued if the defendants (petitioners) make some effort to discharge the onus of proof but 1 consider that they not having let in any evidence cannot be allowed to escape the onus by this method. The petition fails and is dismissed with costs.