The discretion of the trial court in considering applications for interrogatories should be exercised in accordance with relevant legal aspects.

1. Rule. Heard finally with the consent of the learned Counsel for the parties.

2. This writ petition takes exception to the order dated 25/7/2013 passed below Exhibit 57 in Regular Civil Suit No.559/2012. By aforesaid order, the application moved by the petitioner – original plaintiff calling upon the respondents – defendants to answer interrogatories under provisions of Order 11 Rule 4 of the Code of Civil Procedure (for short ‘the Code’) has been rejected.

3. The facts giving rise to the present proceedings are as follows:

The petitioner is the original plaintiff who has filed Special Civil Suit No.60/2006 seeking declaration that the judgment and decree dated 5/11/2003 passed in Special Civil Suit No.325/1994 was null and void, the same having been obtained by practicing fraud. According to the petitioner, the suit property was agreed to be sold by the respondent No.1 to the petitioner. According to the petitioners, a document was shown to have been executed on 3/2/1992 by the respondent No.1 by obtaining the acknowledgment of the petitioner as having receiving a sum of Rs.63,000/ in view of consideration for aforesaid plot. On the basis of another document dated 10/8/1992, the respondent No.1 had filed Special Civil Suit No.325/1994 seeking specific performance of the agreement of sale in respect of aforesaid suit property. According to the petitioner, in said suit a notice dated 12/7/1993 had been filed by the respondent No.1. According to the petitioner, the decree in the aforesaid suit had been obtained by the respondent No.1 by playing fraud. A declaration to that effect had been sought by the petitioner in subsequent suit.

4. The respondent No.1 filed his written statement opposing the claim of the petitioner. It was denied that the decree in Special Civil Suit No.325/1994 was null and void or that it was obtained by fraud.

5. The petitioner on 5/12/012 moved an application below Exhibit 57 calling upon the respondent No.1 to answer interrogatories in terms of provisions of Order 11 Rule 4 of the Code. The respondent No.1 filed his reply to aforesaid application vide Exhibit 58. According to the respondent No.1, the application filed by the petitioner was not tenable as the suit was at the stage of recording evidence. The trial Court by order dated 25/7/2013 held that the subject matter of interrogatories sought by the petitioner could be the subject of evidence during the trial. As the interrogatories sought by the petitioner formed part of evidence, the respondent No.1 could not be called upon to deliver interrogatories which constituted part of the evidence. On that basis, aforesaid application came to be rejected by the trial Court. Said order is impugned in the present writ petition.

6. Shri V. K. Paliwal, the learned Counsel appearing for the petitioner submitted that the learned Judge of the trial Court erred in rejecting the application below Exhibit 57. It was submitted that the interrogatories sought were relevant to the matter in issue and hence, the application moved by the petitioner could not have been rejected on the ground that the interrogatories were part of evidence. The learned Counsel submitted that though the trial Court observed that the interrogatories could be delivered at any stage, by subsequently observing that as the trial had commenced, the interrogatories could not be allowed as the same were subject matter of evidence of the adversary party. He, therefore, submitted that the trial Court erred in rejecting aforesaid application.

7. Shri S. Moharir, the learned Counsel appearing for the respondents vehemently opposed aforesaid submissions and supported the order passed by the trial Court. He submitted that perusal of the interrogatories as sought indicated that the respondent No.1 could be submitted to cross examine and answers to aforesaid interrogatories could be sought. He further submitted that the burden to prove the case as pleaded was on the petitioner and the interroga