CM(M) 265/2022Page 1 of 8

$~3(Appellate-2022)

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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CM(M) 265/2022 & CM No. 14383/2022, CM No.14384/2022

MAMTA

..... Petitioner

Through:

Mr.Mukesh Rana, Adv.

versus

RISHIPAL

..... Respondent

Through:

None

CORAM:

HON'BLE MR. JUSTICE C. HARI SHANKAR

JUDGMENT (ORAL)

%

28.03.2022

1.

The issue that arises for consideration in this case is as to

whether, prior to granting leave to serve interrogatories on the

opposite party, the Court is proscribed, in law, from issuing a notice of

the application seeking leave to serve interrogatories, calling for a

response from the opposite party on the application.

2.

The contention of Mr. Mukesh Rana, learned Counsel for the

petitioner is that leave has necessarily to be granted, on an application

preferred under Order XI Rule 1 of the Code of Civil Procedure, 1908

(CPC), seeking leave to serve interrogatories, ex parte, and that, at

that stage, the opposite party has no right to oppose grant of leave. It

is only after the interrogatories are served on the opposite party,

according to him, that the opposite party may, under Order XI Rule 6

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001146

CM(M) 265/2022Page 2 of 8

of the CPC, question the necessity of responding to one or more of the

interrogatories served on him.

3.

As this is the limited issue that arises for controversy, the

factual dispute in the present case need not detain this court.

4.

An application was preferred, by the petitioner, as the plaintiff

before the learned Additional District Judge (“the learned ADJ”), in

CS DJ 10/2021 (Mamta v. Rishipal), under Order XI Rule 1 of the

CPC, to serve interrogatories on the defendant. The application came

up for hearing on 15^th March, 2022, when the defendant submitted that

he had not received any copy of the application and that, before

granting leave to serve interrogatories on him, it was necessary that a

copy of the application be supplied to him. The plaintiff, per contra,

submitted, before the learned ADJ that the prayer for grant of leave to

serve interrogatories had necessarily to be decided ex parte and that

the defendant was not entitled to receive any copy of the application

before an order granting leave to serve interrogatories was passed.

He, however, cited, in this context, two decisions of pre-CPC vintage,

namely Shamkissore Mundle v. Hosheebhoosun Biswas ¹ and Prem

Shukla v. Indra Nath².

5.

The learned ADJ observed that these decisions had been

rendered in the 19^th century, prior to the coming into force of the CPC

and could not, therefore, be treated as authorities on the ambit of

1 ILR (1880) 5 Cal 707

2 (1891) 18 Cal 420

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001146

CM(M) 265/2022Page 3 of 8

Order XI Rule 1. The learned ADJ also noted that, in Centrient

Pharmaceuticals Netherlands B.V. v. Dalas Biotech Ltd.³, this Court

had dismissed the application for seeking leave to serve

interrogatories after hearing both parties.

6.

The learned ADJ also noted the wording of Order XI Rule 2 of

the CPC, which reads thus:

"On an application for leave to deliver interrogatories, the

particular interrogatories proposed to be delivered shall be

submitted to the Court and that court shall decide within

seven days from the day of filing of the said application. In

or any of them, and leave shall be given as to such only of the

interrogatories submitted as the Court shall consider

necessary either for disposing fairly of the suit or for saving

costs".

(Emphasis supplied)

7.

Relying on the italicised words in Order XI Rule 2, the learned

ADJ observed that the requirement of the Court, in taking a decision

on the application seeking leave to serve interrogatories, having to

take into account any offer made by the party sought to be

interrogated to deliver particulars make admission or produce

docum