Bisheswar Bhattacharjee Vs. Shantimoy Bhattacharjee and others, 52 DLR (AD) (2000) 124

Case No: Civil Petition for Leave to Appeal No. 263 of 1999

Judge: Bimalendu Bikash Roy Choudhury,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,Mr. Fazlul Karim,,

Citation: 52 DLR (AD) (2000) 124

Case Year: 2000

Appellant: Bisheswar Bhattacharjee

Respondent: Shantimoy Bhattacharjee and others

Subject: Procedural Law,

Delivery Date: 1999-6-16

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Mustafa Kamal, CJ.
Latifur Rahman, J.
Bimalendu Bikash Roy Choudhury, J.
A M Mahmudur Rahman, J.
 
Bisheswar Bhattacharjee
…………………Petitioner
Vs.
Shantimoy Bhattacharjee and others
..……………… Respondents
 
Judgment
June 16, 1999.
 
The Code of Civil Procedure, 1908 (V of 1908)
Order 11 rule 8
The provision of Order 11, rule 8 of the Code of Civil Procedure is directory in character and the court is yet possessed of powers to extend time in a proper case…………(6) 
 
Lawyers Involved:
Fazlul Karim, Senior Advocate, instructed by Shamsul Haque Siddique, Advocate-on-Record—For the Petitioner
Md. Nawab Ali, Advocate-on-Record Respondent Nos. I & 2.
Not represented — Respondent Nos. 3-19.
 
Civil Petition for Leave to Appeal No. 263 of 1999.
(From the judgment and order dated 24 August 1998 passed by the High Court Division in FMA No. 27 of 1997.
 
JUDGMENT
 
Bimalendu Bikash Roy Chowdhury J.
 
The relevant facts are brief. The petitioner along with another brought in the First Court of Subordinate Judge, Chittagong a suit for declaration of tile, confirmation of possession etc, in respect of certain land. Defendant Nos. 1 & 2 denied the plaint allegations in a joint written statement. After the framing of the issues the plaintiffs served interrogatories upon the defendants on 26 September 1996. They were asked to answer them on 6 October 1996. In the meantime the defendants sought extension of the time which was allowed upto 13 October 1996. On 13 October 1996 the defendants made a further prayer for extension of time. On the same day the plaintiffs also made an application for striking out the defence under Order 11, rule 21 of the Code of Civil Procedure. The court did not pass any order thereupon but allowed time to the defendants to reply to the interrogatories on 26 October 1996 in obedience o the order of the court the defendants answered the interrogatories on the date fixed.
 
2. The plaintiffs’ application for striking out the defence was ultimately taken up for hearing on 17 November 1996. After hearing the parties the learned Subordinate Judge rejected it, holding that the requirement of Order 11, rule 8 to answer interrogatories was directory and that there was no failure on the part of the defendants to comply with the order of the court.
 
3. Against this order one of the plaintiffs (the present petitioner) preferred FMA No. 27 of 1997 to the High Court Division. A learned Single Judge of the High Court Division, by judgment and order dated 24 August 1998, dismissed the appeal and affirmed the order of the trial Court.
 
4. Leave to appeal has been sought from the said judgment of the High Court Division. Mr. Fazlul Karim, learned Counsel for the plaintiff-petitioner has attempted to argue that the High Court Division while considering the provision of Order 11, rule 21 of the Code of Civil Procedure acted illegally in failing to notice that rule 8 of the said Order clearly expresses the intent of the legislature that the Court shall not extend the period of time initially granted to the defendants to file answers to the interrogatories served upon them by the plaintiffs.
 
5. He also argues that in the context of the provision of Order 11, rule 8 of the Code of Civil Procedure the word “may” as used in rule 21 of the said Order can only be read as “shall” and the plaintiffs are entitled to the consequences of the failure of the defendants to answer the interrogatories.
 
6. One might notice that Order 11, rule 8 of the Code of Civil Procedure requires that interrogatories shall be answered within 10 days but it does not set out any consequence for non-compliance. In case the party interrogated omits to answer the interrogatories, rule 11 allows the party interrogating to apply to the court for an order requiring him to answer them. Rule 21, in clear terms, has left a discretion with the court to strike out a defence in the event of a failure of the defendants to comply with any order of the court to answer interrogatories. The construction of the word “shall” occurring in a statute depends on the setting which the expression appears, the object for which the direction is given and the consequences that would follow from the infringement of the direction. Keeping these principles in view we are of the opinion that the provision of Order 11, rule 8 of the Code of Civil Procedure is directory in character and the court is yet possessed of powers to extend time in a proper case.
 
7. In the instant case, there has been no failure on the part of the defendants to comply with any order of the court to answer interrogatories. The High Court Division has, therefore, committed no error of law in upholding the order of the Subordinate Judge refusing to strike out the defence.
 
This petition merits no consideration and is accordingly dismissed.
 
Ed.