Order X CPC | Oral Examination Of Any Party To Suit Regarding Controversy Involved Therein Is A Matter Of Discretion: Delhi High Court

The Delhi High Court has observed that under Order X of the Code of Civil Procedure, the question of whether any of the parties to the suit is required to be orally examined on any aspect relevant to the controversy is a matter of discretion.

Order X of the Code provides for the examination of parties by the Court.

Justice C Hari Shankar observed thus:

"A bare reading of Order X of the CPC makes it apparent that the question of whether any of the parties to the suit is required to be orally examined on any aspect relevant to the controversy is essentially a matter of discretion. Where a court feels that, in order to elucidate matters in controversy in the suit, oral examination of one or more of the parties to the suit is necessary, the court is empowered to so order."

The Court was dealing with a plea filed by the defendant in a civil suit, challenging the order dated 15th March, 2022, passed by the Trial Court, on applications filed by the the plaintiff under Order X and Order XI Rule 21, of the Code.

The petitioners were the sisters of the respondent. Their brother had died interstate on 29th October, 2015. A partition suit was instituted by the petitioners against the respondent, in which a preliminary decree came to be passed on 14th December, 2016, followed by a final judgment dated 30th January, 2017.

Thereafter, the petitioners addressed a communication dated 6th March, 2018, which constituted the provocation for the filing of the suit by the respondent against the petitioners. The respondent alleged that the letter dated 6th March, 2018, contained certain assertions which were ex facie defamatory qua the respondent, in which embezzlement of large amounts of money by the respondent was alleged.

It was further alleged that the petitioner had circulated the said communication thereby irreparably damaging the reputation of the respondent. Alleging that the petitioners had thereby committed tortious defamation, the respondent, in his suit, claimed damages to the tune of Rs. 75,00,000 along with pendente lite, future interest and costs.

During the course of the proceedings in the aforesaid suit, the petitioner had filed an application seeking interrogatories under Order XI Rules 1, 2 and 4, read with Order XI, Rule 12 of the CPC.

In the impugned order dated 15th March, 2022, the Trial Court observed that the letter dated 25th February, 2018 was not annexed to the plaint and, therefore, had to be eschewed from consideration. Apropos the communications dated 6th March, 2018 and 9th March, 2018, the Judge had queried of the Counsel who appeared for the petitioners as to whether the copies of the said communications filed by the respondent with his suit could be exhibited as admitted documents. The Counsel for the petitioners answered in the negative.

Accordingly, the petitioners were directed to personally appear before the Trial Court for their examination. The said direction was challenged by the petitioners in the High Court.

The Court was of the view that the Trial Court had provided clear and cogent reasons for his decision to orally examine the petitioners under Order X, CPC and it was clearly not for the High Court to second guess the decision.

"The learned Pr DSJ has noted the fact that the various affidavits filed by the petitioners, read conjointly, and juxtaposed with one another, did not reflect a clear stand with respect to the letters dated 6th March, 2018 and 9th March, 2018 on which the respondent sought to place reliance, copies of which had been filed with the plaint. The learned Pr DSJ has noted the fact that Order XI Rule 21 was much more drastic in its application as, in the event of failure of a party to properly respond to interrogatories, the provision permitted for the striking off, of the defence of the prevaricating party. Rather than taking recourse to such an extreme step, the learned PR DSJ has actually erred, if at all, on the site of fairness, by allowing the petitioners to orally clarify their stand with respect to the communications dated 6th March, 2018 and 9th March, 2018," the Court observed.

The Court added that the Trial Court merely sought to clarify certain issues which, according to him, were nebulous in the affidavits filed by the petitioners.

"Any attempt to predict the questions which may be posed to the petitioners, and the answers that they would provide thereto, would be an exercise in clairvoyance, which this Court is obviously not inclined to undertake," it added.

With the aforesaid observations, the plea was dismissed.

Case Title: DR VIMLA MENON AND ANOTHER v. GOPINATH MENON

Citation: 2022 LiveLaw (Del) 451

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