057-NLR-NLR-V-69-CEYLON-INSURANCE-CO.-LTD.-Petitioner-and-R.-M.-SUDU-BANDA-Respondent.pdf
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SRI SKANDA RAJAH, 3 .—Dagawathie v. (hnwrnlnr.
1967 Present: Manicavasagar, J., and Samerawickrame, J.CEYLON INSURANCE CO. LTD., Petitioner, andR. M. SUDU BANDA, Respondent
S. C. 330/67—Application in Revision in D. C. Colombo. 66288/M
Interrogatories—Omission to answer them—Procedure thereafter—Civil ProcedureCode, ss. 94, 98,100,109.
A party who omits to answer interrogatories served on him is entitled to beheard before the Court makes an order requiring him to answer under section '100 of the Civil Procedure Code. The party sought to bo interrogated shouldtherefore havenotieh of the application under scelicn ICO, so that he ir.ay showcause, if any, against an adverse order being made against him. 1
1 (1941) 42 N, L. R. 481, at 493.
262M ANIC'AVASACJAH j.— Ceylon Insurance Co., Ltd. v Stidu Banda
APPLICATION to revise an order of the District Court, Colombo.
E. B. Wikramanayake, Q.G.. with N. R. M. Daluwatte, for thedefendant-petitioner.
Nimnl Senmiayake. with Bala Kada rajah. for the plaintiff-respondent.
Cur. ailv. vult.
November 28.1907. Mantcavasaoar, J.—
Tlie plaintiff, who is the respondent to this application, obtained leaveof the original Court under .Section 94 of the Civil Procedure Code todeliver interrogatories for answer by the defendant-petitioner. Thelatter did not answer, and the plaintiff applied to the Court under Section100 of the Civil Procedure Code and obtained an ex-parte order requiringhim to answer within 4 days. The defendant did not comply with thisorder, and the Court on the application of the plaintiff under Section 109struck out the defence.
The question which we have to determine is whether a party, whoomits to answer interrogatories served on him, is entitled to be heardbefore the Court makes an order requiring him to answer under Section100 of tho Code.
The learned Judge answered this question in the negative, and heldthat- no notice of the application under Section 100 was necessary in thecase of a party who omits to answer, or rofuses to answer giving no reasonfor his refusal, but such notice is necessary where he answers insufficientlyor gives reasons for his refusal.
We are of the view that the learned Judge is wrong, and the distinctiondrawn by him is not warranted by the terms of Section 100 : on the con-trary, the proviso to Section 100 requires the Court to decide, before itorders a party to answer, whether in its opinion the latter need not haveanswered under Section 98. It is obvious that the opinion of the Courtshould be after hearing both sides : the party sought to be interrogatedshould therefore have notice of the application under Section 100 inorder to enable him to show cause, if any, against an adverse order beingmade against him. This is an essential step, and an omission to takethis step renders an order made under Section 109 nugatory, for thereason that the Court must see that all steps and orders prior to an orderunder Section 109 have been regularly and properly made.
The order striking off the defence is set aside, and the case will goback for trial in due course. The Court will take the steps indicated bythis order if the plaintiff desires to pursue his application under Section 100.The defendant will have the costs of this appeal, and the costs of theinquiry in the Court below.
Samerawickrame, J.—I agree.
Appeal allowed.