DISCOVERY AND INSPECTION OF DOCUMENTS IN A CIVIL SUIT- A CRITICAL ANALYSIS

Author: Sharvari Manapure, a fourth-year student at the Maharashtra National Law University, Nagpur.

INTRODUCTION

In a civil suit, once the plaint has been presented before the court of law by the plaintiff and the defendant submits the written statement, and the court or parties may derive that a party to the suit has not disclosed facts in the pleadings presented. The material facts and the documents should be, beforehand, disclosed as both the parties are entitled to know the documents constituting the case of the opposing party as these documents hold the power to impeach or destroy the case.

Although the above mentioned does not mean that a party to the suit has the right to know or interrogate the evidence of the opponent, because if it is allowed, the unscrupulous party may try to destroy or abstain the evidence to be presented in the court, which shall defeat the motive of justice granted in the court of law.

Every suit contemplates two types of facts, namely Facta probanda which is of nature to disclose the case of a party, and Facta probantia through which the case is proved with evidence. The parties to suit are entitled to be acquainted with facta probanda beforehand the proceedings. The Code of Civil Procedure thereby lays downs the given provisions for the same purpose:

  • Order 11; Discovery and inspection

  • Order 12; Admissions

  • Order 13; Production, impounding, and return of documents

  • Order 19; Affidavits

The researcher herein shall only deal with discovery and inspection of documents in a civil suit, by dealing with nature and scope along with the objects and who shall seek discovery under what conditions and admissibility and objection of discovery. The researcher shall also deal with the types of discovery, namely discovery by interrogatories briefly and discovery of documents shall be the focus and will be analyzed with the resources available. Along with the discovery of documents, the researcher shall also deal with Rule 15 to Rule 19 of Order 11 which states provisions for inspection of documents which is divided into two classes, namely the documents which are referred to in the pleadings including affidavits of the parties and the documents of the parties but not referred in the pleadings of the suit.


DISCOVERY: ORDER 11

The term discovery signifies when the parties are compelled to disclose the relevant facts and data which the party has possession or power. It is a compulsory disclosure by a party to an action of facts or documents on which the opposite party desires to reply. [1]

  • Nature and scope

The scope extends to the discovery of facts and discovery of documents. Post settlement of the issues of the suit, a party may need information from the opposite party regarding facts or documents which are in possession or power of the opposite party which shall be relevant to the issues contended in the suit. A party may present a series of questions to the opposite party where the information related to facts is required, such questions are called Interrogatories. These questions are presented before the judge and if the judge finds them relevant, he shall compel the adversary to answer them on oath before the trial. Whereas a party may compel the adversary to submit a list of documents which are in his possession or power to inspect the information contained by the documents, this is called the discovery of documents. [2]

  • Object

Under the Code of Civil Procedure, the court is empowered to make an order for discovery.[3] Absolute disclosure by the parties has been increasingly preferred by the modern procedural codes. Whereas, the provision provided by the Code of Civil Procedure is rarely exercised by the judges in the court of law.[4] Order 11 contains provisions that have an objective to save the expenses of obtaining information related to material facts and to obtain material facts to prove an issue.


DISCOVERY OF DOCUMENTS

The party is entitled to inspect all the documents to expect the ones which constitute does not exclusively constitute the adversary party’s evidence. To inspect the documents which are in possession or power of the adversary party, the documents have to be produced and presented in the court of law. Therefore, to inspect the documents of the opposite party, the party needs to know what documents of the opposite party shall bring up the question about the discovery of specific documents. Under the provisions of Code of Civil Procedure[5], a party can apply to the court without filing an affidavit to compel the adversary party to disclose the relevant documents to which he holds possession to.[6]

If the party fails to present an affidavit of documents after the court’s order for discovery of documents, he shall be subjected to penalties under Code of Civil Procedure.[7] An affidavit of documents shall constitute the documents that are relevant to the civil suit and are in the possession or power of the party. Whereas the documents which are in the possession of the adversary party but are not relevant to the civil suit, the party shall state what has become of them and currently who is possessing them, in order for the opposite party to obtain the documents if required.[8] After disclosure of documents by affidavit, the party may be required to produce for inspection of the document which he holds possession of and relevant to the suit. The documents which are obtained are not required to be admissible in evidence in the enquiring of the proceedings. The relevance of the document is to throw light on the issue contended, supporting and strengthening the case of the party. A document can be contended as inadmissible as evidence yet may contain the information which shall affect the facts and arguments of the parties. But if the documents are irrelevant and the prayer for discovery of documents is made to bring delay in proceedings, the applications shall be rejected by the court of law.[9]

The objective of the procedure of discovery of documents is to secure the disclosure of documents of the adverse party on oath under the sanction of penalties attached to a false oath. This procedure also aims to put an end to the consequences leading to a protracted inquiry as to the relevant documents of the opposite party.[10] This procedure not only elicits admissions but also obviates the necessity of leading lengthy evidences along with it accelerates the trial of suits which supports the court to administer justice. [11]

In a civil suit, the parties to suit can apply to the court for an order of discovery. The party filing for the discovery of documents needs to file an affidavit in the court following which the court makes an order of discovery and the adversary party must present the documents in an affidavit which he has possession of or the ones which are in his custody. [12]

To apply the discovery of documents certain conditions need to be fulfilled, which are stated below:

  • It is necessary for fair disposal of suit;

  • For saving costs.[13]

An order of discovery to the suit is made against a person who is an opposite party to the suit.[14] If a suit is instituted against the nominal plaintiff, the person interested may be ordered to give discovery of documents.[15]

The discovery of documents can be objected on the terms of the relevance of documents with the civil suit.[16] The objection against the discovery of documents shall be expressly mentioned in the affidavit and it must be stated that they are privileged to enable the court to decide the claim. [17]

The documents which are asked under the discovery of documents are not always admissible in court. The documents may be admissible in the case if they are relevant to the case and which may have some impact on the issues dealt under the case.

Rule 12 of Order 11 is considerably wider than Order 13, Rule 1 of the Code. The right to obtain discovery of an adversary’s documents is a very wide one and is not limited merely to those documents which may be held to be admissible in evidence when the suit is ultimately tried.[18]

It is a fact that whenever a suitable case comes in the court of law the defendant might raise an objection to the document production on the basis that it transmits solely to his title, but if looking from another perspective, that this production of documents might have some kind of bearing in the sustenance of plaintiff’s title, such kind of objection cannot be validly raised in the court of law. Under Rule 12 of Order 11, If an order for discovery is made by the court, the documents relating to the case should be personified in the affidavit of documents by the party against whom the order for discovery by the court is made. Nonetheless, if the defendant thinks that he should be entitled to any kind of protection with regards to the production documents or any particular document which may be entered in the affidavit under Order 11, Rule 13 of the Code, the party shall permit to raise such an objection at the appropriate stage of the proceedings, whenever he has been ordered to produce documents under Order 11, Rule 14 or to give inspection of them under Order 11, Rule 18.


WHO MAY SEEK DISCOVERY?

When a suit is brought up in the court of law, a party to the suit may apply for discovery and inspection of documents of the other party, the procedure can be followed by filing an affidavit. When the court orders for the discovery of documents against a party, it is the due duty of the party to present all the documents in its possession, custody or power.


OBJECTIONS AGAINST DISCOVERY

The objection against discovery can be made in an instance where the order is passed a stage of suit where it is not necessary.[19] Any kind of objection made should be backed up with a valid reason against the order of discovery and should be further expressed in the affidavit and the sufficient reasoning shall not include the privileged documents. The reasoning should be given for the privileged documents.


DOCUMENTS DISCLOSING EVIDENCE

Any document which constitutes as evidence of the party shall not be ordered by the court under production and inspection of documents. This provision of Code of Civil Procedure cannot be exploited by the party to come to court knowing the evidences and the arguments of the opponent which might help his case.


ADMISSIBILITY OF DOCUMENTS

When the court passes an order for discovery of documents the court has to keep in mind that the order for discovery is made for the relevant documents of the case or the matter in issue, such document needs to be admissible in evidence.[20]


PRIVILEGED DOCUMENTS

“Crown Privilege” is recognized by English law. The privileged documents are based on the doctrine of “public welfare is the highest law” (salus populi est suprema lex). Justice needs to be done for and in the public interest, but along with this it also requires withholding of the documents at certain instances.[21]


OPPRESSIVE DISCOVERY

An objection to the order of discovery can be made on the ground that it is “unduly oppressive” to the party against whom the order is made. To address this ground, there are two conflicting issues the court has to consider, firstly the importance of the discovery to the person seeking it, and the burden that is imposed on the opposite party giving discovery.[22] To decide whether or not the nature of discovery is oppressive, it shall depend on the facts and circumstances of each case.[23]


EFFECT OF NON-COMPLIANCE

If the court makes an order for discovery of documents and the party fails to comply with the court’s order, the court shall consider that the documents are not being produced because they might be used against him and shall make his case weak. In the case of the plaintiff, his suit shall be dismissed and he shall be barred from filing a fresh suit for the same cause of action.[24]


RULES AS TO DISCOVERY

The summary of rules of the discovery of documents is given below:

  • When a suit is filed in the court, any party can approach the court for an order of discovery of documents of the other party which are relevant to the matter in issue on oath of the documents which are in possession, power or custody of the party.

  • It shall be the discretion of the court to grant or reject the discovery of documents.

  • The order for discovery of documents can be made at any stage of the suit, either of its motion or by an application of the party approaching the court.

  • If the court thinks that the discovery of documents is not necessary at the stage of the suit, it refuses to make such order as it deems fit.

  • Mostly, until the defendant files a written statement or till the time of filing of written statement the court does not pass the order for discovery of documents.

  • The order of discovery is not passed till the court thinks that is either for the motive of saving cost or for the fair disposal of the suit.

  • The party against whom the order is passed is bound to produce all the documents in its power and custody.

INSPECTION OF DOCUMENTS

As per the Rule 15-19 of Order XI of the code deals with the inspection of documents and are further divided into two categories:

  • All types of documents which are required or referred in pleadings or affidavits- these documents are regard to inspection

  • The documents which are not referred in pleading but are in the possession, power or custody of the party.

When a suit is filed in the court of law a party to the suit shall be entitled to inspection of first class documents, this can be done without the intervention of court by giving a notice in a prescribed form to the party against whom inspection of documents is required in pleadings. When the notice is served to a party in suit, the party is required to, within ten days of delivery of such notice, the party claiming inspection should state the time and place of the inspection of documents and the if there are any objections regarding the inspection they should be conveyed within this time.[25] If he fails to comply with the notice of the party then the court has the authority to intervene with the inspection of documents.[26]

Whereas, with regards to inspection of second category documents, the party claiming inspection against the other party has to proceed with a way of an application through the court attaching an affidavit with reason to satisfy the court as to the inspection of documents being relevant to the case and matter in issue. [27]


PRIVILEGED DOCUMENTS

Privileged documents are the ones protected from the production of documents which are as follows:

  • Public records;

  • Confidential communication;

  • Documents that have exclusive evidence of the parties’ title.

It can however be considered in the court of law to determine whether or not the documents are eligible to be considered as privileged documents[28]. The primary object of Rule 15 to 19 of Order 11 is to place the opposite party in the same position as if the documents had been fully set out in his pleading or the affidavit. [29]


PREMATURE DISCOVERY

Discovery shall be considered premature when the right to inspect the documents is based on the determination of the matter in issue, before deciding the discovery of documents, the question in dispute needs to be determined.[30] The court has the entitlement to postpone a premature inspection and discovery of documents. [31] The court may order to determine the issue in dispute first and then follow it with the required inspection and discovery of documents.


NON-COMPLIANCE WITH ORDER OF DISCOVERY OR INSPECTION: RULE 21

When a party to suit fails to comply with any order of inspection or discovery of the document, if such a party is plaintiff his suit may be dismissed and if the party is a defendant his defense will be struck off.[32] However, the above action shall be taken after a reasonable opportunity is given to the parties. If the suit is dismissed due to non-compliance, the plaintiff shall be barred from filing a fresh suit with the same cause of action.

In a case where the defendant did not comply with the discovery of documents, he was disregarded from the right to cross-examine the witnesses[33]. This was challenged before the Supreme Court, the court placed two questions:

  • Whether the court was justified to strike off the right to cross-examine

  • Whether the defendant had no right to cross-examine

The court held that these provisions shall not be lightly invoked but should be only applied in the extreme case as a last resort, while arriving at the decision the court had consulted with several English and Indian decisions.


[1] Concise Oxford English Dictionary (2002) at p. 409. [2] C.K. Takwani, Civil Procedure with Limitation Act 1963, 8th Ed; Chapter 10, p. 295. [3] Section 30 of Code of Civil procedure; states Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion or on the application of any party,-(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;(b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;(c) order any fact to be proved by affidavit. [4] Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira, (2012) 5 SCC 370 at p. 385. [5] Order 11, Rule 12 of Code of Civil Procedure; [6] M.L. Sethi v. R.P. Kapur (1972) 2SCC 427. [7] Order 11, Rule 21 of Code of Civil Procedure; [8] M.L. Sethi v. R.P. Kapur (1972) 2SCC 427. [9] Central Bank of India v. Shivam Udyog (1995) 2 SCC 74. [10] Rameshwar Narayan v. Rikhanath Koeri AIR 1920 Pat 131, p. 137. [11] Raj Narain v. Indira Gandhi AIR 1972 All 41. [12] Order 11 Rule 12 of Code of Civil Procedure. [13] Majeti Ramachandrayya v. Mamidi Buchhaya AIR 1935 Mad 288. [14] Gopaldas Modi v. Hansraj AIR 1932 Cal 72. [15] James Nelson & Sons Ltd v. Nelson Line (1906) 2 KB 217. [16] Proviso to Rule 12 [17] National Assn. Of Operative Plasters v.. Smithies 1960 AC 434 HL. [18] Gobind Mohun v. Magnerram Bangur & Co. [19] Proviso to Rule 12. [20] M.L. Sethi v. R.P. Kapur (1972) 2 SCC 427. [21] For detailed discussion as to “Crown Privilege”, see Authors’ lectures on Administrative law (2012). [22] Halsbury’s Laws of England (4th Edn) Vol. 13 at p. 77, para 95. [23] Hall v. London & North Western Railway Co., (1877) 35 LT 848. [24] Union of India v. Ibrahim Uddin (2012) 8 SCC 148. [25] Rule 17. [26] Rule 18 (1). [27] Rule 18 (2). [28] Rule 19 (2) [29] Halsbury’s Laws of England (4th Edn) Vol. 13 at P. 47. [30] Union of India v. Laxminaryan AIR 1953 Nag 281. [31] Rule 20, Bhagyalakshmi Ammal v. Srinivasa Reddiar AIR 1960 Mad 510. [32] Rule 21 (1). See also, Modula India v. Kamakshya Singh (1988) 4 SCC 619. [33] Babbar Sewing Machine Co. v. Triloki Nath Mahajan (1978) 4 SCC 188.


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