046-SLLR-SLLR-2004-V-3-PAR-MARKETERS-PVT-LTD-v.-HATTON-NATIONAL-BANK-LTD.pdf
CA
Par Marketers (Pvt) Ltd v Hatton National Bank Ltd
297
PAR MARKETERS (PVT.) LTDvHATTON NATIONAL BANK LTDCOURT OF APPEALWIJERATNE, J. (P/CA)
CALA 318/2000 (LG)
DC COLOMBO 18225/MRNOVEMBER 15,2004
Civil Procedure Code – Sections 91, 99 and 100 – Interrogatories – Courtfixing matter for trial without making an order on the application under section100 or without giving reasons for not considering application – Validity? -Application under section 100 is it on a motion? – Affidavit not valid – Belatedobjection?
The plaintiff-respondent instituted action for the recovery of certain sumspleaded as due on account of an overdraft. The defendant-petitioner filedanswer and thereafter tendered interrogatories. Oral application was made bythe defendant-petitioner to make order under section 99 and section 100 of theCode. Order was reserved. The plaintiff thereafter tendered writtensubmissions and moved Court to accept the statement of objections and fix thematter for trial. The Court after noting that the defendant has refused to answerthe interrogatories, fixed the case for trial, and stated that if the objections ofthe defendant are not accepted the plaintiff is informed to take relevant steps.
The defendant sought leave and leave was granted on two questions:
Whether the order fixing the case for trial without making an order onthe application under section 100 or without giving reasons is valid.
Whether it is necessary to make an application under section 100 upona motion in terms of section 91.
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Held:
The application to make order under section 100 was as a sequel toobjections being accepted. The tenor of the objection is a refusal toanswer, "and upon such refusal when the party interrogating makesapplication, the Court is bound to make an order whether in its opinioninterrogatories need not have been answered or otherwise requiringthe party interrogating to answer either by affidavit or by viva voceexamination as the Court may direct.
Section 98 permits a refusal to answer on grounds justifying suchrefusal only. Either section 98 or any other provisions of Cap XVI doesnot provide for objection to interrogatories, it only provides for refusal toanswer interrogatories, on justifiable grounds.
Per Wijeyaratne, J. (P/CA)
“The failure of the learned District Judge to make necessary orderunder section 100 is not a sequel to the objection to the form of theapplication, but it appears that he has failed to appreciate the schemeof the procedure set down in Cap XVI”.
The application to make an order under section 100 is not an incidentalstep because the Court is bound to make an order either to answer,further answer or in the alternative the interrogatories need not beanswered. Therefore the application under section 100 is a step in theregular procedure which need not be made in terms of section 91. Astep required to be take by a Court by the provisions of the Code is notan incidental step in the course of the proceedings.
Per Wijeyaratne, J. (P/CA)
“The validity of the application for leave to appeal in as much as theaffidavit of the petitioner affirmed to before a Justice of Peace ofHomagama Judicial District and hence not legally valid, cannot now bechallenged as the application for leave to appeal is since accepted andacted upon by this Court".
APPLICATION for leave to appeal from an order of the District Court of
Colombo with leave being granted.
Cases referred to:
Ceylon Workers Congress v Sathasivan – CALA 86/2002
D. A. Senanayake v Gamage- 64NLR517
Manohara de Silva for the petitioner.
Romesh de Silva P.C. with Palitha Kumarasinghe for the respondent.
Cur.adv.vult.
CA
299
Par Marketers (Pvt) Ltd v Hatton National Bank Ltd
(Wijayaratne, J. P/CA)
November 15, 2004WIJAYARATNE, J.
The plaintiff-respondent (RESPONDENT) instituted actionagainst the defendant-petitioner (PETITIONER) for the recovery ofcertain sums pleaded as due on account of overdraft. Thepetitioner filed answer and the case was fixed for trial. After the thirdpostponement of the trial, the petitioner tendered interrogatorieswhich were served on the respondent who having obtainedextension of time to answer, objected to the interrogatories on20.09.2000. The counsel for the petitioner made application orallyto Court to make order under section 99 and 100 of the CivilProcedure Code. Counsel for both parties made submissions andthe Court reserved the order to be delivered 03.10.2000. In themeantime the respondent on 23.09.2000 tendered writtensubmissions with notice to the petitioner given under registeredcover and moved Court to accept the statement of objections andfix the matter for trial. On 03.10.2000 the Court made orderjournalized as ‘case fixed for trial. If the objections of the defendantare not accepted, the plaintiff is informed to take relevant steps.The defendant has refused to answer the interrogatories.’
Being aggrieved by the said order, (which is per se erroneousfor the reason that it is the defendant-petitioner who servedinterrogatories and it is the plaintiff-respondent which filedstatement of objections) the petitioner made application for leave toappeal by his petition dated 20.10.2000 supported by affidavitdated 19.10.2000.
When the matter of leave being granted was taken up on
in the presence of parties represented by lawyers,Court granted leave on two questions:
Whether the learned District Judge’s order fixing the case fortrial without making an order on the application undersection 100 of the Civil Procedure Code or without givingreasons for not considering that application, is correct in law.
Whether it is necessary to make an application undersection 100 upon a motion in terms of section 91 of theCivil Procedure Code.”
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Upon such grant of leave, the argument of the appeal was fixedand the Registrar of the Court was directed to communicate theorder to the Registrar of the District Court. When the matter wastaken up for argument counsel for both parties invited Court todispose of the matter by way of written submissions to be tendered.
The respondent in its submissions has referred to the matter ofthe validity of the application for leave to appeal in as much as theaffidavit of the petitioners was affirmed to before a Justice of thePeace of Homagama Judicial District and hence it is not legallyvalid. Reference is made to the decision of Ceylon WorkersCongress v Sathasivati1). However the application for leave toappeal is since accepted and acted upon by this Court when itgranted leave to appeal on 03.06.2004 without any objection fromthe respondent represented by Lawyers. In my view the validity ofthe application for leave to appeal cannot now be challenged andthe matter does not require any determination.
With regard to the two questions framed for determination by theorder granting leave, the first question has two limbs, proceedingsdated 20.09.2000, motion minuted at journal entry no. 20 dated23/26.09.2000 and minute dated 27/26.09.2000 clearly indicate theposition that the petitioner who served interrogatories on therespondent, has made oral application to court to make an orderunder section 100 of the Civil Procedure Code. Both partiesconcede that the petitioner made such application. The contentiousissue is whether such application should be by way of motion orwould an oral application suffice.
The order impugned in this appeal and dated 03.10.2000 does *not make any order with regard to the application of the petitioner.Instead the Court has informed the petitioner that if he does notaccept the objections he should take steps. But the matter thatrequired determination is the oral application of the petitioner whichwas not determined by Court – whether the application made orallyis accepted or that the petitioner should make application by way ofmotion in writing or court refuse to make order on the basis that theoral application is not in terms of the relevant law. The learnedDistrict Judge has left the matter of objection being accepted to thedecision of the petitioner, when in fact there was no question of
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QAPar Marketers (Pvt) Ltd v Hatton National Bank Ltd
(Wijayaratne, J. P/CA)
objections being accepted or not by the petitioner. The applicationto make order under section 100 of the Civil Procedure Code wasas a sequel to objections being accepted. The tenor of the objectionis a refusal to answer; and upon such refusal when the partyinterrogating makes application the Court is bound to make anorder whether in its opinion interrogatories need not have beenanswered or otherwise requiring the party interrogated to answer,either by affidavit or by viva voce examination as the court maydirect.
In the order impugned the Court has failed and neglected tomake any such order in terms of section 100 and the Court thatfailed to make order has necessarily failed to give reasons.
The second question whether it is necessary to make anapplication under section 100 upon a motion in terms of section 91of the Civil Procedure Code needs examination of relevantprovisions and the nature of such motion envisaged under the law.The respondent argues that application envisaged under section100 should be either by ‘motion and a memorandum in writing ofsuch motion’ in terms of section 91 of the Code. Reference is madeto the case of D. A. Senanayake v Gamagd2) where it was held“The contention of the respondents counsel that the word ‘motion’is used in section 91 of the Civil Procedure Code, means writtenmotion, also fails. “It was so held on the basis that ‘section 91 of theCivil Procedure Code becomes relevant only in application made tothe Court in the course of an action incidental thereto, and not astep in the regular procedure. A Court is bound to take certain steps
in a regular procedure such as“A step required to be taken by
a Court by the provisions of the Civil Procedure Code is not anincidental step in the course of the proceedings.”
According to this rule, the application to make an order undersection 100 of the Code is not an incidental step, because the Courtis bound to make an order either to answer, further answer or in thealternative the interrogatories need not be answered. Therefore theapplication under section 100 is a step in the regular procedure whichneed not be made in terms of section 91 of the Code.
It is expedient to note that the contentious issue requiring theorder is on the so-called statement of objection to the
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interrogatories filed by the respondent which takes high groundsbased on terminology used in the relevant sections. However therespondent arguing that the term ‘application’ should be by motionhas failed to comply with the requirement of law in refusing toanswer interrogatives in terms of section 98 of the Code.
Section 98 of the Code states:
“any party called upon to answer interrogatories may
refuse to answer any interrogatory on the ground”
What the section permits is a refusal to answer on groundsjustifying such refusal only. Either section 98 or any otherprovisions of Chap XVI of the Code does not provide for anyobjection to interrogatories. What the respondent has consequentto the serving of interrogatories presented to Court is not a refusalto answer interrogatories as envisaged by section 98 but objectionto interrogatories only. The Civil Procedure Code does not providefor objection to interrogatories; it only provides for refusal to answerinterrogatories, when served on justifiable grounds. However in myview this type of argument is not in accord with the spirit of the law.The form of the application or the refusal is immaterial so long as itserves the purpose of the procedural step envisaged speciallyunder Chapter XVI of the Code.
The failure of the learned District Judge to make necessaryorder under section 100 is not as a sequel to the objection to theform of the application; but it appears that he has failed toappreciate the scheme of the procedure set down in Chapter XVI.Thus the need arises for intervention by this Court to remedy thesituation created by the impugned order dated 03.10.2000.Accordingly the order dated 03.10.2000 reflected in the journal ofthe case is set aside and vacated. The learned District Judge isdirected to make order on the application made under section 100of the Code on the premise that there is a refusal to answerinterrogatories in terms of section 98 of the Code. The appeal isallowed with costs fixed at Rs. 10,000/-.
Appeal allowed.
District Judge directed to make order under section 100 on thepremise that there is a refusal to answer interrogatories.