012-SLLR-SLLR-2008-V-2-DEDIGAMA-v.-DEDIGAMA-AND-ANOTHER.pdf
CADedigama v143
Dedigama and another
DEDIGAMA
v
DEDIGAMA AND ANOTHER
COURT OF APPEALWIMALACHANDRA, J.
CALA 91/2004 (LG)
DC NEGOMBO 5307/DJUNE 27, 2005
Civil Procedure Code – Sections 98, and 100 interrogatories – Refusing toanswer – Court to hold inquiry – Necessity – When will Court not allowinterrogatories ?
In the divorce action filed, the defendant husband by a motion tendered twentyinterrogatories to be served on the plaintiff wife. The plaintiff in her statementof objections set out the grounds on which the plaintiff refused to answer theinterrogatories. The defendant objected to the application made by the plaintiff- the Court without holding an inquiry refused to accept the objections.
On leave being granted.
Held:
When the plaintiff-petitioner has filed a statement of objections supportedby an affidavit, the Court should in order to satisfy itself of the merits of therefusal inquire into the said refusal to answer the interrogatories. It is onlyafter an inquiry that th Court could form an opinion as to the merits of theobjection?
PerWimalachandra, J.
"Interrogatories must be relevant to the matters in issue and never allowed totest the credibility of a party or witness as the credibility of a witness could betested in cross-examination. Interrogatories which are insulting or impertinentto the matter in issue should not be allowed – are not allowed if they put anundue burden on the party interrogated and shall not be put in the hope ofdiscovering facts to make out a case".
Even a person who omits to answer interrogatories is entitled to be heardin opposition as to why he failed or refused to answer interrogatories.
144Sri Lanka Law Reports[2008] 2 Sri L.R
The Court has failed to observe that in terms of Section 98, a party who wascalled upon to answer interrogatories may refuse to answer anyinterrogatory on the ground that it is scandalous or irrelevant or is not putbona fide for the purpose of the action. The proviso to Section 100 of theCode provides that Court shall not require an answer to an interrogatorywhich in its opinion need not have answered under Section 98.
APPLICATION for leave to appeal from an order of the District Court ofNegombo with leave being granted.
Cases referred to:
Goonewardane v Dunuwilla 46 NLR 565.
Ramsamy v Ramsamy 1956 1 WLR 542.
Kennedy v Dodson 1895 1 Ch 334.
Ceylon Insurance Company Ltd. v R.M. Sudu Banda 70 NLR 261.
Hiran Jayasuriya with Kaushalya Nawaratne for plaintiff-petitioner.
Kuwera de Zoysa with Senaka de Saram for 1st defendant-respondent.
Cur.adv.vult.
March 9,2007WIMALACHANDRA, J
The plaintiff-petitioner (plaintiff) has filed this application for leave toappeal from the order of the learned Additional District Judge ofNegombo dated 26.2.2004. The Court of Appeal granted leaveto appeal on 24.03.2005. Briefly the facts relevant to this appealare as follows:
The plaintiff instituted the above mentioned action bearing No.5307/D, in the District Court of Negombo against the defendant fora judgment and decree of divorce dissolving the marriage betweenthe plaintiff and the defendant on the ground of constructivemalicious desertion and/or on the ground of adultery of the 1stdefendant-respondent (1st defendant) with the 2nd defendant-respondent (2nd defendant), physical and legal custody of thechildren born from the said marriage and a permanent injunctionrestraining the 1 st defendant or his agents and /or his servants fromremoving the children from the custody of the plaintiff or taking thechildren out of Sri Lanka without the permission of Court. Theplaintiff also sought Rs. 2,000,000/- as permanent alimony andRs. 20,000/- per month for the maintenance of the children. Uponthe answers of the defendants being filed, the Court fixed the
CADedigama v-j 45
Dedigama and another ( Wimalachandra, J.)
matter for trial on 21.1.2004. The 1st defendant by motion dated
tendered twenty interrogatories to be served on theplaintiff. The said interrogatories were served on the plaintiff on
and the Court directed the case to be called on
On that day the plaintiff tendered to Court a statementof objections supported by an affidavit setting out the grounds onwhich the plaintiff refuses to answer the said interrogatories interms of Section 98 of the Civil Procedure Code. The 1st defendantobjected to the application made by the plaintiff in terms of Section98 of the Civil Procedure Code. Subsequently, the parties madesubmissions and the Court made order on 26.2.2001 refusing toaccept the objections filed by the plaintiff under Section 98 of theCivil Procedure Code.
The plaintiff is entitled to refuse to answer the interrogatories ifthe party interrogating seeks by his interrogatories to get mattersirrelevant to prove his case. In Goonewardena v DunuwiM1) it washeld that the Court will not allow interrogatories which are;
too wide
remotely connected with the issues in the case.
merely bear upon the credit of a witness or the opposite party.
scandalous, vexatious or oppressive.
Section 98 of the Civil Procedure Code provides that a partycalled to answer any interrogatory, may refuse to answer suchinterrogatory on the ground that it is scandalous or irrelevant or isnot put bona fide for the purposes of the action or that the answerwill tend to incriminate himself or that the matter inquired after is notsufficiently material at that stage, or any other like ground.
In the instant case, upon the interrogatories being served on theplaintiff, she filed a statement of objections to the interrogatoriessupported by an affidavit on the ground that the said interrogatoriesare irrelevant, vexatious, and are remotely connected with theissues in the case.
When the plaintiff has filed a statement of objections supportedby an affidavit, the Court should in order to satisfy itself of the meritsof the refusal, inquire into the said refusal to answer theinterrogatories. It is only after an inquiry that the Court could forman opinion as to the merits of the objections. In my view it is only
146Sri Lanka Law Reports[2008] 2 Sri L.R
after such inquiry the Court could take steps under Section 100 ofthe Civil Procedure Code. Section 100 of the Civil Procedure Codestates thus:
"If any person interrogated omits or refuses toanswer or answer insufficiently any interrogatory, theparty interrogating may apply to the court for anorder requiring him to answer or to answer further, asthe case may be. And an order may be maderequiring him to answer further, either by an affidavitor by viva voce examination, as the court may direct:
Provided that the court shall not require an answer toan interrogatory which in its opinion need not havebeen answered under Section 98."
Thus, it will be seen that the Court after examining the affidavitand the objections to the answering any one or more or all ofinterrogatories may make an order either accepting the objectionsor may make an order requiring the party interrogated to answerthe interrogatories either by affidavit or oral examination.
The interrogatories must be relevant to the matters in issue.Interrogatories are never allowed to test the credibility of a party orwitnesses as the credibility of a witness could be tested in cross-examination. Interrogatories which are insulting or impertinent tothe matter in issue should not be allowed. Interrogatories are notallowed if they put an undue burden on the party interrogated. Theinterrogatories shall not be put in the hope of discovering facts tomake out a case.
Similarly, a party can refuse to answer all the interrogatories ifthey are scandalous or irrelevant or is not bona fide for the purposeof the action or any other like ground in terms of Section 98 of theCivil Procedure Code.
The Court has a wide discretion as to interrogatories, and onlysuch interrogatories will be allowed as the Court considersnecessary either for disposing fairly of the cause or matter or forsaving costs. (Ramsey v Ramsey)^).
It is well to remember the well-known observations made by A.L.Smith L.J., in Kennedy v Dodson.P)
"In my opinion, the legitimate use, and only legitimate
CADedigama v147
Dedigama and another (L.K. Wimalachandra, J.)
use, if interrogatories is to obtain from the partyinterrogated admissions of facts which it is necessaryfor the party interrogating to prove in order to establishhis case; if the party interrogating goes further andseeks from the other party matters which is notincumbent on him to prove, although such mattersmay indirectly assist him, the interrogatories ought notto be admitted."
In the instant case the Court made an order refusing the objectionsand the affidavit filed by the plaintiff, without holding an inquiry into themerits of the objections filed by the plaintiff and ordered the plaintiff toanswer the said interrogatories. The learned Judge has failed toconsider the grounds upon which the plaintiff had refused to answerthe said interrogatories. The Court cannot simply reject the objectionsfiled by the plaintiff without giving reasons for such rejection. Theplaintiff in his objections supported by an affidavit has stated thegrounds for refusing to answer the interrogatories, such as the saidinterrogatories were scandalous, irrelevant, and were relating tomatters not within the knowledge of the plaintiff. It is only upon aninquiry that the Court could form an 'opinion' as to the merits of theobjections. It is only thereafter the Court could take steps underSection 100 of the Civil Procedure Code.
In the case of Ceylon Insurance Company Ltd. v R.M. SuduBanda(4), it was held inter alia that, a party who omits to answerinterrogatories served on him is entitled to be heard before the Courtmakes an order requiring him to answer under Section 100 of the CivilProcedure Code. The party sought to be interrogated should thereforehave notice of the application under Section 100, so that he may showcause, if any, against an adverse order being made against him.
It appears that even a person who omits to answer interrogatories isentitled to be heard in opposition as to why he failed or refused toanswer interrogatories. In the instant case the plaintiff has stated in herobjections supported by an affidavit as to why she refused to answer theinterrogatories. However the learned Judge has not given anopportunity to the plaintiff to be heard in opposition and had inquired intothe said objections before making an order under Section 100 of theCivil Procedure Code. The plaintiff had stated in her statement ofobjections and in the affidavit that the interrogatories were not relevantto the matters in dispute, unreasonable, vexatious and lengthy and
148Sri Lanka Law Reports[2008J 2 Sri L.R
tedious (prolix). The learned Judge, without holding an inquiry, hadsimply rejected. The Court has not considered the grounds of objectionsurged by the plaintiff in her affidavit and in the statement of objections.Before the Court rejects the plaintiffs objections and the affidavit it is theduty of the Court to give a hearing to the plaintiff.
The learned Judge had failed to observe that in terms of Section98 of the Civil Procedure Code, a party who was called upon toanswer interrogatories may refuse to answer any interrogatory on theground that it is scandalous or irrelevant or is not put bona fide for thepurpose of the action. Moreover the proviso to Section 100 of the CivilProcedure Code provides that the Court shall not require an answerto an interrogatory which in its opinion need not have been answeredunder Section 98 of the Civil Procedure Code.
In these circumstances, I am of the firm view that the learnedJudge erred in law when she refused to accept the statement ofobjections and the affidavit of the plaintiff without an inquiry into themerits of the objections and ordered the plaintiff to answer the saidinterrogatories. Had an inquiry been held by the Judge, the plaintiffwould have explained the reasons for the refusal to answer the saidinterrogatories. It is only upon an inquiry the Court could form anopinion as to the merits of the objections and it is only thereafter theCourt can take steps under Section 100 of the Civil Procedure Code.In my opinion, it is not proper for the learned Judge to dismiss theplaintiff's affidavit and the statement of objections in refusing toanswer the interrogatories without even considering whether theinterrogatories are relevant to the matter in issue in this action or theseinterrogatories are such that answers to them be relevant to the issue.In my view, unless the interrogatories are strictly relevant to thequestion at issue in the action, they ought to be excluded.
For these reasons I set aside the order of the Additional DistrictJudge dated 26.2.2004 and I order the Additional District Judge toaccept the statement of objections and the affidavit filed by theplaintiff on 26.2.2004 and thereafter to hold an inquiry in respect ofthe same according to law. Appeal is allowed with costs fixed atRs. 10,000/-
Appeal allowed.
District Court directed to hold inquiry.