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This article has been written by Yashika Kapoor, a student pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.

Introduction 

To understand the concept of discovery and inspection of documents, let us take an example wherein A (plaintiff) files a civil suit against B (defendant). The case involves important documents. Some of the documents are possessed by A and others by B. Later, after the filing of a complaint and written statement (WS) by A and B respectively, A wishes to access some documents that are possessed by B. Here, A has an option to view such documents by way of filing an application before the Hon’ble court seeking discovery of documents that are in possession of B. The reasons for filing such an application are required to be mentioned by A which either can be for smoother functioning of the case or for the better understanding of the case or that the discovery of documents is important for the issues to be framed appropriately so that he can destroy the case of his adversary at the hearing.  

The word ‘document’ in very simple terms means a piece of written matter either in printed or electronic form that gives some kind of information or acts as a piece of evidence. A document can also be used for official records. In a civil suit, documents have a major role to play. The parties to a civil suit, i.,e, the plaintiff and defendant during the proceedings desire to be aware of all the material facts and documents the other party may possess. Thus, the process by which either plaintiff or defendant can know about the material facts of each other, or documents possessed by the other parties or power relevant to the issue in the suit, is called discovery and inspection of documents. Therefore, it becomes imperative to understand the concept of discovery and inspection of documents.  

When can one file an application for the discovery of documents? 

In a civil suit, the application for discovery of documents must be filed after the plaint and the written statement are presented before the court. Such an application can be made either by the plaintiff or defendant in case they consider that the nature of their opponent’s case has not been sufficiently disclosed in the pleadings. In case, the court is satisfied that such discovery is necessary, the party making such application is then accredited with documents in possession of the other party or any power relevant to the issue in the suit. However, this does not signify that a party to a suit possesses a right to know the evidence of the other party previously. The scope of the application is limited to an extent. And in case the purpose of this application is misused, it would give rise to unscrupulous litigation that might defeat the ends of justice. 

Order XI: Rule 12-21 discusses the discovery and inspection of documents 

Order XI Rule 12: application for discovery of documents 

Order XI Rule 12 of the Code empowers the party to make an application for discovery of documents to the court seeking those documents that are in possession or power of the other party. This application may be filed without filing any affidavit. If it appears to the court that such discovery is not required or not important at that stage of the suit, then the court either rejects the application or adjourns it. The court has a discretionary power to deal with such application in the sense that it might pass an order that will allow the party’s access to certain documents only. 

In Central Bank of India vs Shivam Udyog, the Hon’ble Supreme Court dealt with a suit pertaining to the enforcement of security by the bank. The defendant challenged the jurisdiction on the basis that it was a fictitious mortgage. Later, the defendant made an application under Order XI Rule 12 thereby seeking access to the departmental proceedings pending against the bank employees. However, this application was rejected by the Court. 

The court in this case also viewed that discovery of a document is important for the party making such application irrespective of whether the document might be inadmissible as evidence in court or not. The discovery of documents can assist the party to advance his case or damage the opposite party’s case. If it appears to the court that the documents are unrelated or immaterial to the question in controversy or the prayer is made to delay the proceedings, then the application will be rejected.

The Hon’ble Supreme Court in the M.L. Sethi v. R.P. Kanpur explained the meaning of the word “document”. It was viewed that the definition of the document constitutes anything that is written or printed ignoring the material on which it has been written or printed, is either inserted or imprinted. Further, in this case, it was viewed that if any document throws light on the matter in controversy, then the discovery of those documents would be considered relevant even if those documents are inadmissible as evidence during the proceedings or inquiry.  

Order XI Rule 13: affidavit of documents 

The party against whom an application for discovery of a document is made needs to make an affidavit thereby specifying the documents that he objects to produce and supply to the other party. This affidavit shall be made under Form No. 5 of Appendix C. It is pertinent to note that when the case involves more than one plaintiff or defendant, then all such plaintiffs and defendants shall collectively make an affidavit of documents, subject to reasons contrary to the respective parties.  

However, it was viewed in the case of Lajpat Rai vs Tej Bhan that when no application is made by the party against whom the order to produce discovery of document under Order XI Rule 13 of Code has been passedsuch party will not be bound to produce and supply the document. Although it is an obligation of such parties to produce and supply documents, however, they can refrain from producing any document which according to them is irrelevant. Furthermore, it is upon the opposite party (the party making an application for the discovery of documents on his dissatisfaction) to apply for an affidavit of documents. 

Order XI Rule 14: production of documents 

Order XI Rule 14 empowers the court to order the party against whom an application for production of the document is made to produce such documents in his possession or power. After such documents are produced before the court, then the court might look into them fairly and properly. This application can be dealt with by the Court and an order to the same effect can be passed at any time during the pendency of any suit. 

It is pertinent to note that Discovery of Documents (Rule 12) is different from production of documents (Rule 14) in the manner than in the former rule, the party to suit is required to make an application before the court whereas, in the latter, the court itself (suo-motu) asks the other party to produce documents. No application of the discovery of the document is required to be made by the party in the latter case. And, if the party to whom the court on its own motion orders for production of documents, fails to produce them, then in such case, the court makes an adverse presumption against such party for not producing the documents.  

Order XI Rule 15: inspection of documents referred to in pleadings or affidavits 

Order XI Rule 15 empowers the parties to serve a notice to the other party seeking production of those documents that have either been referred to in the pleadings or affidavit. The party can find such documents by checking the lists that are attached along with the plaintiff or W.S. The parties serve such notices and seek the production of documents with the intent to inspect such documents. These notices served by one party to the other party or their pleader also demand copies of such documents.  

Where any party fails to act in accordance with the notice served, such party will then have to bear consequences in the sense that they won’t be further allowed to put such document as evidence in the case. This rule can only be waived off if such party satisfies the court with sufficient reasons for non-complying with the notice. 

Order XI Rule 16: notice to produce 

According to this Order XI Rule 16, the notice for production of documents mentioned in the Plaint or W.S. of the party is required to be made under Form No. 7 of Appendix C. However, the notice is subject to changes depending upon the facts and circumstances. 

Order XI Rule 17: time for inspection when notice given 

As per Order XI Rule 17 of the Code, the party to whom the notice to produce a document is served is required to reply (in the form of notice) to another party within ten days from the receipt of such notice. Such a party will further provide a timeframe of three days to the other party to come and check those documents for inspection. These three days will begin from the date of delivery of the previous notice. The party in its reply will explicitly state, the place of inspection of the documents which can be either be at the pleader’s office. In case if the documents constitute books of accounts, books of the banker, books, books that are continuously used in the business, then such books can be accessed at the normal place of custody. 

It is pertinent to note that the production of a document constitutes those documents against which the party has no objection and can easily provide for inspection to the other party. However, if the party objects to the production of documents, then sufficient explanation along with relevant grounds have to be mentioned to that effect in the notice itself. The notice has to be made in accordance with Form No. 8 of Appendix C which can be subject to certain changes.

Order XI Rule 18: order of inspection 

Order XI Rule 18(1) of the Code empowers the court to pass an order regarding the inspection of documents in case the party to whom notice is served under Rule 15 for inspection of documents fails to give notice of inspection within ten days or put certain conditions like raises objection to produce the documents or offers the documents to the party at a place different from the pleader’s office. The court might pass such an order in response to the application made by the party demanding the documents for inspection. However, this rule has an exception to the effect that such an order shall not be made if it appears to the court that such an order is neither disposing of the case properly nor saving costs. 

Order XI Rule 18(2) of the Code makes it compulsory for the party making an application for inspection of documents to list down the documents it requires for inspection in the form of an affidavit. The party making an application for inspection of the document will also state in the same affidavit that they will be permitted to inspect those documents and also mention that such documents are in possession or power of the other party. However, this rule has an exception to the effect that such an order shall not be made if it appears to the court that such an order is neither disposing of the case properly nor saving costs. 

Order XI Rule 19: verified copies 

Order XI Rule 19(1) of the Code states that in case of an application made for inspection of business books, the court possesses the power to seek a copy of those entries that are mentioned in such business books. This rule helps those parties who are not in favor of giving the original copy from business books as such parties can then resort to Rule 19 where they can seek certified or verified copies of the same. However, it is important to signify that such copies are to be furnished and verified by way of an affidavit and such an affidavit has to be made by the person who has personally examined and compared both the original copy as well as the verified/certified copy. However, an exception to the general rule is that in case the certified/verified copy has been produced but the same appears to be altered, tampered with, or varied, then the court in such case shall call upon the original copy of business books. 

Order XI Rule 19 (2) of the Code empowers the court to inspect the document on its own and debars the party making application for inspection to inspect in case if the document is confidential in nature or it is unpublished as per Section 123 of Evidence Act, 1872. Also, Section 162 of the Evidence Act, 1872 gives power to the court to inspect these privileged documents itself. 

Order XI Rule 19 (3) of the Code empowers the court to pass an order thereby necessitating any other party to specify those documents (one or more than one) which are in possession or power of such party or the documents were in possession or power of the party at any time in past. This has to be stated in the form of an affidavit made along with an application for inspection. In case the documents are not in such a party’s possession, then, the date on which those documents were given to some other party has to be specified in the application. Such an application filed with an affidavit will require the deponent (person making/verifying the application) to particularly state the fact that the person against whom an application is made has possessed that document or the document has been his power at some point in time. Lastly, the application has to also state that inspection of such documents is significant to the matters in question of the case.  

Order XI Rule 20: premature discovery 

Order XI Rule 20 of the Code states that if the party to whom an application for discovery of document or its inspection is made and that party raises objections against that application, the reason being that the discovery of that particular document or its inspection will lead to premature discovery, then in such case if the party attains to satisfy the court on this aspect, the court will then reserve the question of discovery and inspection for later. Here, the word premature discovery means that some issues or questions are required to be decided and answered before the discovery or inspection of the document, so the court will first decide upon those issues at hand, and will entertain the application after determining those questions or issues. 

Order XI Rule 21: non-compliance with the order of discovery 

Order XI Rule 21 is one of the most important rules. In a civil suit, if the Plaintiff fails to comply with the orders of the court, his plaint shall be dismissed, and furthermore, according to 21(2), the plaintiff will not be able to file a new plaint in a fresh suit on the same cause of action. In case, Defendant fails to comply with the orders of the court, his evidence or defense will be struck off and the defendant will not be given a chance to present his case. Resultantly, the decision shall be passed in favor of Plaintiff. Here compliance with the order of the court means that the plaintiff or defendant on an application for discovery and inspection fails to produce those documents.  However, it is pertinent to note that the court will pass such an order only after informing the plaintiff or defendant, as the case may be, about their non-compliance, and will also provide them a reasonable opportunity of being heard.

Conclusion

It has been observed that the provisions of discovery and inspection are not utilized in the same manner as other provisions of the Code are. The parties by making an application for seeking discovery of documents can get clarifications at the very outset of the suit. It can also assist the court in the framing of issues as well as the parties can understand the scope of inquiry in a feasible manner. The discovery and inspection of documents is not a mandatory stage. These relevant provisions provide an opportunity for the parties to confirm and verify certain documents possessed by them. For example, if any document is missing or not available with one party, then by making an application of discovery, the other party can seek access to those documents. 

In Raj Narain v. Indira Gandhi, the Supreme Court made some interesting observations with respect to the procedure of inspection. The court opined that the procedure of inspection deals with three steps:

  1. The process starts with eliciting admissions
  2. The second step in the procedure precludes the requirement of leading lengthy evidence.
  3. Accelerates the proceedings and also helps the court in the administration of justice. 

The court in several other decisions answered the question of against whom the order of discovery can be made. The court in Ram sewak v. Hussain Kantil Kiduai, and Gopaldas v. Hansmj, viewed that the order of discovery of documents might be made by the court against a person who is a party to the civil suit. In another case, namely, James Nelson & Sons, Ld. v. Nelson Line (Liverpool) l.d, it was viewed that in case “if a suit is instituted by a plaintiff, the person or persons interested may be ordered to give discovery”. In National Assn. of Operative Plasters v. Smithies, the court established that the party against whom an application for discovery of document is made can object to such discovery on the basis that the discovery of document is not important and not required at a particular stage of the suit. However, the reasons for raising objections against the discovery have to be mentioned clearly and expressly in the affidavit. One cannot merely claim the document as privileged and prevent its discovery from disclosure, rather, the person claiming such document as privileged will have to specify the reasons for the same. Therefore, we can conclude that the concept of discovery and inspection has been strengthened through the rulings of the court and they mark one of the most important stages of pleadings. 

References

  1. https://www.supremecourtbc.ca/sites/default/files/web/The-Discovery-Process.pdf
  2. http://www.bareactslive.com/ACA/ACT379.HTM#O12

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