Namasivayam Chetty V. Ragsoobhoy

1944 Present: Keuneman and Cannon JJ.

NAMASIVAYAM CHETTY, Appellant, and RAGSOOBHOY,
Respondent.

62-D. C. (Inty.) Colombo 14,638.

Interrogatory-Failure to answer-Order striking off defence-Powers of Court- Civil Procedure Code, ss. 100 and 109.

Failure to answer interrogatories does not make a defendant liable to have his defence struck off under section 109 of the Civil Procedure Code.

In order to make the defendant liable to the penalty it is necessary that a peremptory order should be made under section 100.

The Court has a discretion to grant an indulgence in a case under section 109.

Karuppen Chetty s. Narayan Chetty 1 (2 C. L. Rec, 173) followed.

APPEAL from an order of the District Judge of Colombo. The facts appear from the argument.

N. Nadarajah, K. C. (with him V. A. Kandiah and S. Handy Perimpanayagam) for the defendant, appellant,--The plaintiff instituted this action claiming damages for breach of a contract,. Defendant filed

answer, and trial was fixed for September 27, 1943, on which date it was postponed for March 2, 1944. On November 24, 1943, the plaintiff obtained leave ex parte, under section 94 of the Civil Procedure Code, to deliver certain interrogatories on the defendant. Thereafter, on application by plaintiff, the trial was again postponed for June 12, 1944. On January 21, 1944, the defendant, through his attorney filed affidavit asking for extension of time to answer the interrogatories. Time was accordingly extended to March 17, 1944. On that date application was made on behalf of the defendant for a further extension of time for answering the interrogatories. The learned Judge, without exercising his discretionary power, refused the application, struck out the defendant's answer and fixed the case for ex parte trial for May 5, 1944. The present appeal is in respect of the order made on March 17, 1944.

The relevant sections of the Civil Procedure Code are 94, 99, 100 and 109. They correspond to sections 121, 126, 127 and 136 of the former Indian Code and to order 11, rules 1, 8, 11 and 21 of the present Indian Code. In the present case no order was obtained by the plaintiff under section 100 of the Code. An order under section 109, striking out the defence, could have been passed only if an order had been previously made under section 100 -Rampat Satan v. Habib Ullah Khan 1 ; Prem Sukh Chunder v. Indro Nath Banerjee 2. Further, the penalty under section 109 would be imposed only at the discretion of Court and on a party who is guilty of contumacious conduct-Karuppen Chetty v. Narayan Chetty 3 ; Appu Singho v. Jusey Appuhamy 4 ; Chitaley and Ras's Commentary on the Indian Civil Procedure Code (2nd ed.) Vol 2, p. 1503.

H. V. Perera, K. C. (with him N. K. Choksy and P. Navaratnarajah), for the plaintiff, respondent.-It cannot be argued that no order was made at any time to answer interrogatories by a certain date. Such an order was made on January 21, 1944,, and the interrogatories were to be answered on March 17, 1944. Under section 99 power is given to Court in the first instance to fix a time-limit longer than 10 days. In the present case the Court had in the first instance, fixed such a longer time-limit. Where there is a failure to perform a duty imposed by an order made under section 99, section 100 empowers the Court to order the person interrogated to answer by a certain date. The order of January 21, 1944, was an order which was made under section 100 and not under section 99. On failure to comply with it on March 17, 1944. the Court could ex mero motu, under section 109, strike out the defence. On March 17, 1944, there were two defaults on the part of the defendant- (1) the failure to comply with a statutory duty, (2) the failure to comply with the order of Court. The order striking out the defence was, therefore, a valid one.

Cur. adv. vult.

November 16, 1944. KEUNEMAN J.-

This appeal is taken

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