steps to be followed before trial Flashcards
section 80A
the court shall not allow applications for these steps, after the matter is fixed for trial unless the court is satisfied that a grave and irremediable injustice would be caused to the party if the application is not permitted.
interrogatories
sections
94
95
98
99
100
109
95 - service of interrogatories
section 94
(1) interrogatories, exparte, through court, any party (defendant or plaintiff), before hearing
cannot deliver more than one and defendant cannot deliver questions unless he has previously tendered answers
section 98
when party may refuse
a) It is scandalous or irrelevant
b) It is not for bona fide for the purposes of the action
c) That the answer will tend to criminate himself
d) The matter inquired is not so relevant at that stage of the action
e) Any other ground that the court thinks fit and proper
section 99
answered by affidavit
10 days or within court allowed time
section 100
applications to answer further
omits or refuses to answer or insufficently answer either by affidavit or by viva voce examination
if not falling within section 98
section 109
failing to answer
a) In the case of a plaintiff he shall be liable to have his action dismissed
b) In the cases of a defendant he shall be liable to have his defense struck out
In addition to that the default party may be dealt as if he has committed an offence which amounts to contempt of court.
notice to admit genuiness of documents
section 101
- either party, exparte, by a notice issued by court, other party to admit, at least before 10 days from the hearing
- admission or denial to admit shall be made in writing signed by the other party
- if such notice is not given, no cost
- permits the court to direct the party refusing to admit genuineness of such document to bear the expenses of proving the same irrespective of the result of the action.
The party on whom the notice is served has to comply with it within 4 days of service of notice. The admission or the denial shall be made in writing signed by the other party or his registered attorney.
102
order for discovery of documents
The court may, at any time Order for
during the pendency therein of any action, discovery of
order any party to the action to declare by
affidavit all the documents which are or
have been in his possession or power
relating to any matter in question in the
action, and any party to the action may, at
any time before the hearing, apply to the
court for a like order.
104
notice to produce documents for inspection
The above steps are optional steps. But list of witnesses and documents
before hearing, through exparte, inspect and take copies
105
within 10 days of receiving the notice to inspect documents, that party shall notify the other party through court that the documents are available for inspection within 3 days from such delivery
106
otherwise order will be made by court for such inspection
107
application for such order be supported by affidavit
what documents
party pplying entitiled to inspect
they are in other party’s possession
108
court can reserve order
list of wtinesses and documents
section 121 (1)
- (1) The parties may, after the
witnesses. summons has been delivered for service on
the defendant, obtain, on application to the
court or to such officer as the court
appoints in that behalf, before the day fixed
for the hearing, summonses to persons
whose attendance is required either to give
evidence or to produce documents
section 121 (2)
(2) Every party to an action shall, not
less than fifteen days before the date fixed
for the trial of an action, file or cause to be
filed in court after notice to the opposite
party
«) a list of witnesses to be called by
such party at the trial, and
b) a list of the documents relied upon
by such party and to be produced at
the trial.
These lists shall be filed with a copy handed over or sent by registered post to the opposite party
The duty of filing the list rests with the registered attorney
what happens if not listed under 121 (2)
If the name of the witness is not included in such a list, any such person cannot be subsequently called as a witness unless with the permission of court.
However, A PARTY to an action can give evidence whether his name is in the list or not.
Similarly, if a document sought to be produced in evidence is not included in the list of documents filed under Section 121, such document cannot be produced in evidence without the leave (permission) of the court. However, this limitation will not apply to documents tendered in cross-examination.
unlisted witnesses
section 175 (1)
- (1) No witness shall be called on
behalf of any party unless such witness shall have been included in the list of witnesses previously filed in court by such party as provided by section 121 :
Provided, however, that the court may in
its discretion, if special circumstances
appear to it to render such a course
advisable in the interests of justice, permit a witness to be examined, although such
witness may not have been included in such list aforesaid;
Provided also that any party to an action
may be called as a witness without his name
having been included in any such list.
section 175 (2)
(2) A document which is required to be
included in the list of documents filed in
court by a party as provided by section 121
and which is not so included shall not,
without the leave of the court, be received in evidence at the trial of the action:
Provided that nothing in this subsection
shall apply to documents produced for cross
examination of the witnesses of the opposite
party or handed over to a witness merely to
refresh his memory.
cases
interrogatories
- Namasiwayam Chetty v Ragsoobhoy
- Appu Singo v Obis Appuhamy
- Wijeratne v China Mutual life Insuarance co
- senanayake v senanayake
namasiwayan chetty v rhagsooboy
it was held that the failure to answer interrogatories served under Section 94 does not make a defendant liable to have his defense struck off he would become liable if an order under Section 100 of CPC has not been complied with
Appu Singo v Obis Appuhamy
an order dismissing an action on the ground that the plaintiff refuses to answer interrogatories can be justified only in circumstances where there has been obstinacy (stubberness) or contumacy on the part of the defaulting party.
Wijeratne v China Mutual life Insuarance co
the court is always unwilling before the right to relief is established, to make an order for discovery which may be injurious to the defendant, and will only be useful to the plaintiff if the succeeds in establishing his title to the relief.
Senanayake v senanayake
where in an action on a cheque instituted by the payee against the drawer by way of summary procedure, the defendant has stated in his answer and affidavit that there was no consideration when he issued the cheque, he is entitled to ascertain from the plaintiff by interrogaraties what was the consideration for which the cheque was issued, so as to enable him to prepare for the case he has to meet.
