top of page
Search
  • Writer's pictureLLC

order 11


Obviously the purpose of this rule is to enable a party to require information from his opponent for the purpose of maintaining his own case or for destroying the case of the adversary. The main object of interrogatories is to save expenses and shorten the litigation by enabling a party to obtain from his opponent information as to the facts material regarding the question in dispute between them or to obtain admission of any facts which he has to prove on any issue which is raised between them. As a general rule, interrogatories are to be allowed whenever the answer to them will serve either to maintain thecase of the party administering them or to destroy the case of the adversary. The power to serve interrogatories as it appears is not meant to be confined within narrow technical limits. It should be used liberally whenever it can shorten litigation and serve the interest of justice. However, this can be exercised within certain limits. The power to order interrogatories to he served and answer should be used with considerable care and caution, so that it is not abused by any party. A party entitled to interrogate his opponent with a view to ascertain what case he has to meet and the facts relied on and to limit the generality of the pleadings and find out what is really is in issue See AIR 1934 Nagpur 181 Shamrao v. Motiram. At the same time interrogatories must be confined to facts which are relevant to the matters in question in the suit. Interrogatories which are really in nature of cross-examination will not be allowed see AIR 1972 SC 1302 Raj Narain v. Smt. Tndira Nehru Gandhi.



In the absence of an express prohibition, it is now well settled in AIR 1962 SC 527 Manohar Lal Chopra v. Rai Bahadur Rao Raja Seh Hiralal that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. The Court can, therefore, under Section 151, permit interrogatories being served to shorten the prolonged course of interlocutory proceedings.


Orissa High Court

Bhakta Charan Mallik vs Nataorar Mallik And Ors. on 21 December, 1990


"Every party to a suit is entitled to know the nature of his opponent's case, so that he may know beforehand what case he has to meet at the hearing. But he is not entitled to know the facts which constitute exclusively the evidence of his opponent's case, the reason being that it would enable an unscrupulous party to tamper with his opponent's witnesses, and to manufacture evidence in contradiction, and so shape his case as to defeat justice. The nature of a plaintiffs case is disclosed in his plaint. The nature of a defendant's case is disclosed in his written statement. But a plaint or a written statement may not sufficiently disclose the nature of a party's case, and to make good the deficiency, either party may administer interrogatories in writing to the other through the Court.........."


In a decision reported in AIR 1978 Orissa 179 ( Tata Iron & Steel Co. Ltd. v. Rajarishi Exports (P) Ltd.) his Lordship has observed (at page 181):


"........The revisional power of this Court is circumscribed by the provisions of Section 115, C.P.C. It is well settled that the special and extraordinary revisional jurisdiction of this Court is exercised only to promote justice, and that power should not be exercised unless it is found that the party approaching the court under Section 115, C.P.C. has no other remedy in law open to him to set aright his grievance, if any. Moreover, as provided in clause (b) to the proviso to Section 115 (new), this Court shall not exercise its revisional jurisdiction if it is not shown that the impugned order, if allowed to stand, would occasion a failure of justice or cause irreparable injury against whom it was made."


Whether the interrogatories should be allowed or not is a question within the jurisdiction of the Court. The error of procedure committed by the learned Sub-Judge lay in the fact that he did not attempt to formulate the correct legal position and to apply the Same to the facts of the case. The resultant conclusion is that the Court, while deciding a question within jurisdiction acted in the exercise of it with material irregularity


Govind Narayan and Ors. vs. Nagendra Nagda and Ors. MANU/RH/0832/2017 has held the following:


The whole purpose of interrogatories is to seek admission of a party on matter in dispute so that the issues can be accordingly framed, minimizing the contentious issues or disputes left for the adjudication of the Court, with the ultimate object of facilitating an early and expeditious disposal of the suit.

A perusal of the corresponding substantive provisions contained in Section 30 of the Code of Civil Procedure shows that the Court has been clothed with a power to order discovery or permit interrogatories at any time. Order XI Rule 1 of the Code contemplates service of interrogatories on the opposite party, with a leave of the Court. A close and conjoint reading of these two provisions make it clear that the Court can allow service of interrogatories, at any stage of the suit, for which it has been conferred wide discretion, but at the same time, the discretion must be exercised judiciously.

The information sought to be furnished must have some nexus or relevancy with the dispute in question.

The stage of the suit is a very significant aspect to be borne in mind, while deciding an application admitting or permitting interrogatories. As stated above, the whole idea or purpose of the provisions contain in Order XI Rule 1 of the Code is to save time and cost by confining the controversy or narrowing down the points of differences or disputes.

Hence, the Court can be a bit liberal in admitting the interrogatories at the initial stage of a suit but the same standards cannot be applied at the advanced stage of the trial, when the evidence of the parties has begun. Interrogatories cannot be permitted, once the evidence of the concerned opposite party is over.



Andhra High Court

Rajesh Bhatia And Ors. vs G. Parimala And Anr. on 30 November, 2005


The plaintiffs filed the petition in I.A. No. 250 of 2004 obviously under Order 11, Rule 14 of the Code. It is true that a wrong provision mentioned in an application is of no significance provided the application could be maintained otherwise. It appears that applications requiring the production of the documents by the adversary are being filed under Order 11 Rule 14 of the Code in the Courts below. Some of them are being filed invoking the provisions of the Indian Evidence Act (for brevity 'the Act'). The matter, therefore, gains significance to know what is the appropriate procedure to be followed when the parties seek production of the documents which are in the custody of the adversary or the agent of the adversary during the course of trial, a fort/br/when it is manifestly a case where the parties are not seeking discovery of the documents. Such problems do arise time and again before the Courts below and might baffle the minds of the Courts. It is, therefore, expedient to address the problem at length.



8. It is appropriate at the outset to consider the provisions of the Code in the first instance. The substantial provision which is relevant in the context is Section 30 of the Code. It authorizes the Court to make such orders as may be necessary or reasonable either of its own motion or on the application filed by the party for delivery and answering of interrogatories; the admission of documents and facts; and discovery, inspection, production, impounding and return of documents or other material objects producible as evidence. Such orders, however, are subject to the conditions and limitations that may be prescribed in Schedule appended to the Code. The Section further authorizes the Court to issue summonses to persons whose attendance is required either to give evidence or to produce documents and for that purpose the provisions in Sections 27, 28 and 29 shall apply. Under Section 32 penal consequences are envisaged. The Court may, therefore, compel attendance of any person to whom a summons has been issued under Clause (b) of Section 30 either by issuing a warrant for his arrest or by directing attachment and sale of his property or by imposing a fine not exceeding Rs. 500/- or by ordering him to furnish security for his appearance and in default commit him to the civil prison. The mandate contained in Section 30 is further elucidated in the Rules prescribed under various Orders. Order 11 deal with discovery and inspection; Order 12 deals with admission of documents and facts; Order 13 deals with production, impounding and return of documents; and Order 16 deals with summoning and attendance of witnesses either to give evidence or to produce documents and give evidence. In the instant case, we are not concerned with the other Orders except Order 11.


9. It is expedient to understand the very scheme and object of the Code in having incorporated Order 11 which will elucidate the provision. After the plaint has been presented by the plaintiff and the written statement by the defendant in Court, it may appear either to the plaintiff or to the defendant that the nature of his opponent's case is not sufficiently disclosed in his pleadings. He is entitled to know beforehand all material facts constituting the case of opposite party and all documents in his possession or power relevant to the issue in the suit with a view of prove, maintain or support his case or to understand, meet with, impeach or destroy the case of his adversary at the hearing.


10. Where information sought is as to facts, the party is allowed to administer to his adversary a series of questions, which are called interrogatories. The judge will go through the proposed question to decided whether they are proper and relevant and whether other side should be compelled to answer them on oath before the trial. In legal terminology it is called discovery of facts. The object of documents material to the issues in the suit from his adversary, the Court may compel the other party to submit a list of documents and permit the party applying to inspect and also to take copies of those documents before the trial. Such disclosure is known as discovery of documents. Such discovery of facts and discovery of documents will narrow down the controversy, avoid unnecessary expenses and shorten the litigation.


11. Rules 1 to 11 of Order 11 deal with discovery of facts, whereas Rules 12 to 20 deal with discovery, production and inspection of documents, in other words discovery of documents. Rule 21 lays down consequences of non-compliance with order of discovery, Rule 22 allows answers in interrogatories to be used in evidence by a party. Rule 23 deals with the application of the order to the minor children and the defendant. Thus, from the scheme of the Code and the arrangement of various Rules in the domain of the Order 11 under the caption "discovery and inspection", the provisions deal with two aspects mainly viz., discovery by interrogatories and discovery by documents.


12. In the instant case we are concerned with discovery of documents. Rules 12 to 20 deal with the same. Rules 12 reads that any party may apply to the Court for an order directing any other party to the suit to make discovery on oath of the documents which are or have been in his possession and power relating to any matter in question involved in the suit. On such application being filed, the Court may make an order in its discretion either refusing to allow the application or directing the opposite party to make discovery. In the event, such an order is passed by the Court exercising its discretion, the party required to make discovery should file an affidavit as per Rule 13. Rule 14, which is germane in the context, reads as under:


14. Production of documents.- it shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just.


13. This provision reads that the Court has got ample discretion to direct the party at any stage of the suit to produce upon oath such of the documents in his possession or power pertaining to the matter in question and when the documents are thus produced, the Court may deal with them in such manner as it shall appear just.


14. Rule 15 deals with the inspection of the document referred to in pleadings or affidavits. Rule 16, however, contemplates a notice to be issued to the party for production of the documents referred to in his pleading or affidavit. Rule 17, however, deals with the time for inspection when notice is given. Where the party omits to produce the documents who has earlier been served with notice under Rule 15, the Court may, as per Rule 18, make an order for inspection in such place and in such manner as it may think fit. Where inspection is required of any business books, as per Rule 19 the Court instead of ordering inspection of the original books may order copy of the entries therein to be furnished and verified by affidavit. Rule 20, however, deals with premature discovery.


15. The forms and notices required are given in Appendix-C. Forms Nos. 4, 5 and 6 are relevant in this regard. The order directing the party to make discovery on oath of the documents which are or have been in his possession or power relating to suit shall be in Form No. 4. Pursuant to that order, the party against whom the order has been passed is required to file an affidavit in Form No. 5 specifying the documents in regard to which he is inclined to produce. Form No. 6 is in respect of the order to be passed by the Court under Rule 14 directing the production of the documents. These forms shall be adopted with such variance as circumstances may require. For brevity and better understanding of the matter, they may be extracted hereunder thus:


Order for Affidavit as to Documents (Order 11, Rule 12) (Title as in No. 1. supra) Upon hearing...; it is ordered that the...do within ...days from the date of this order, answer on affidavit stating which documents are or have been in possession or power relating to the matter in question in suit, and that the costs of this application be.


Affidavit as to Documents (Order 11, Rule 13) (Title as in No. 1, supra) I, the above-named defendant C.D., make oath and say as follows:


1. I have in my possession or power the documents relating to the matters in question in this suit set forth in the first and second parts of the first schedule hereto.


2. I object to produce the said documents set forth in the second part of the first schedule hereto [state grounds of objection].


3. I have had but have not now, in my possession or power the documents relating to the matters in question in this suit set forth in the second schedule thereto.


4. The last-mentioned documents were last in my possession or power on [state when and what has become of them and in whose possession they now are].


5. According to the best of my knowledge, information and belief, I have not now, and never had, in my possession, custody or power or in the possession, custody or power of my pleader or agent, or in the possession, custody or power of any other person on my behalf, any account, book of account, voucher, receipt, letter, memorandum, paper or writing, or any copy of or extract from any such document, or any other document whatsoever, relating to the matters in question in this suit or any of them, or wherein any entry has been made relative to such matters or any of them, other than and except the documents set forth in the said first and second schedules hereto.


Order to produce Documents for Inspection (Order 11, Rule 14) (Title as in No. 1, supra) Upon hearing...and upon reading the affidavit of...filed the...day of...20...; it is ordered that the ...do, at all reasonable times, on reasonable notice, produce at ...situate at...the following documents, namely, ...and that the ...be at liberty to inspect and peruse the documents so produced, and to make notes of their contents. In the meantime, it is ordered that all further proceedings be stayed and that the costs of this application be...


16. A perusal of the above forms will elucidate the provisions contained in Rules 12,13 and 14 of Order 11. If a party who seeks the assistance of the Court for causing production of the document by his adversary may invoke these provisions. Without the assistance of the Court, he may independently issue a notice to his adversary requiring production of documents. Rule 16 of Order 11 enables him to do so and that notice shall be in Form No. 7 of Appendix-C. This is meant for the inspection of the documents. Similarly, a party can also issue notice to his adversary for producing documents for the purpose of eliciting admission. Rules 8 of Order 12 is relevant in the context. The notice to be issued under Rule 8 of Order 12 shall be in Form No. 12 of the Appendix-C. As discussed hereinabove, under the provisions of Order 16, summons can be issued to the witnesses for production of documents and to give evidence. Of course, they are not relevant for the present purpose. Thus, the mandate contained in Section 30 of the Code has been further elucidated under Orders 11,12,13 and 16, which deal with specifically discovery by interrogatories, admission of documents and facts, discovery of documents and inspection thereof, production, impounding and returning of documents or other material objects, summoning witnesses to give evidence or to produce documents. Each heading, therefore, has a specific purpose. If those provisions are read coupled with the forms prescribed in Appendix-C, the position would be clear cogent and unequivocal. The matters which are not covered by any of these provisions as discussed hereinabove, can always be dealt under inherent jurisdiction of the Court.


17. In Halsbury's Laws of England, fourth edition, Volume 13 in para 1, the nature and extent of discovery has been considered thus:


The term "discovery" in this title is used to describe the process by which the parties to civil cause or matter are enabled to obtain, within certain defined limits, full information of the existence and the content of all relevant documents relating to the matters in question between them. The process of the discovery of documents operates generally in three successive stages, namely (1) the disclosure in writing by one party to the other of all the documents which he has or has had in his possession, custody or power relating to matters in question in the proceedings: (2) the inspection of the documents disclosed, other than those for which privilege from or other objection to production is properly claimed or raised: and (3) the production of the documents disclosed either for inspection by the opposite party or to the court.


The function of the discovery of documents is the provide the parties with the relevant documentary material before the trial so as to assist them in appraising the strength or weakness of their respective cases, and thus to provide the basis for the fair disposal of the proceedings before or at the trial. Each party is thereby enabled to use before the trial or to adduce in evidence at the trial relevant documentary material to support or rebut the case made by or against him to eliminate surprise at or before the trial relating to documentary evidence and to reduce the costs of the litigation.


[Emphasis is mine] At page 33 in para 37 it has been further dealt as under.


The obligation to disclose the existence of relevant documents is now coextensive with the obligation to produce documents for inspection. The fact that a document is privileged or otherwise protected from inspection is no reason for not disclosing its existence.


In determining whether a document should be disclosed by a party two tests should be applied: (1) whether it is relevant: (2) whether it is or was in the possession, custody or power of the party or his agent: and in any case when the order directing disclosure has limited discovery or relates to particular documents only the terms of that order must be applied.


[Emphasis is mine] In para 62 it is dealt as under:


The right to the production of documents is a corollary of the right to their inspection, and an order for their production for inspection is the obvious method of enforcing that right. If the party serving a list of documents, or if a party served with a notice to produce for inspection documents referred to in pleadings or affidavits, fails to serve the necessary notice offering inspection or objects to produce any documents for inspection or offer inspection at a time or place such that, in the opinion of the court, it is unreasonable to offer inspection then or there, the party entitled to inspection may apply for an order for production of the documents in question for inspection at such time and place and in such manner as the court thinks fit.


The power of the court to make an order for production for inspection is discretionary, and the court will not make an order for the production of any documents for inspection unless it is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs. Whilst the court may make an order for production for inspection at anytime, it will not normally allow a plaintiff inspection before he has served his statement of claim or a defendant before he has served his defence.


[Emphasis is supplied] In para 69 it is dealt as under:


Although the obligation to produce documents for inspection is coextensive with the obligation to disclose their existence, there are many relevant documents the existence of which must be disclosed in the list of documents but which are nevertheless protected from production. The grounds on which this protection can be claimed can be classified under the following main heads: (1) legal professional privilege; (2) that production is contrary to public policy; (3) that the documents in question may tend to criminate the party or his or her spouse; (4) that the production is contrary to some statutory provision which imposes secrecy; (5) that production is contrary to some express or implied agreement between the parties; and (6) that production would, in the circumstances of the particular case, be oppressive.


(Emphasis is supplied) In Corpus Juris Secundum, Volume 27, Clause 1, it has been mentioned thus:


The term "discovery" has several shades of meaning; but in the sense in which it is most commonly used discovery is the disclosure by defendant of facts, deeds, documents, or other things which are in his exclusive knowledge or possession, and which are necessary to the party seeking the discovery as a part of a cause or action pending, or to be brought in another court or as evidence of his rights or title in such proceedings. Of course, in a sense every bill in equity is a bill for discovery; discovery is incident to the suit, and if the bill is sufficient to invoke equity jurisdiction it probes the conscience of defendant and obliges him to answer fully as to all matters charged. However, under the inflexible rules of the common law the parties to an action were incompetent as witnesses and no means were provided by which an adverse party could be compelled to produce documents in his possession for the use of his opponent at the trial: and it was in order to cure this defect that equity established the remedy of discovery as ancillary or auxiliary to actions or causes of action at law, and which, in the absence of statute, constitutes the sole means by which its purposes may be accomplished.


[Emphasis is mine] In Clause 4 it is mentioned thus:


The extent of the inquiry under a bill for discovery rests largely in the court's discretion; and in determining what matters are proper subjects of discovery, the pleadings must be kept in mind.


Materiality. Generally, the right to discovery of particular matters is governed by their relevancy and materiality to the case of the party seeking it. Accordingly, while discovery will be allowed as to matter material to the claim or defence of the party seeking it, provided all other requisites are met, it will not be allowed to determine matters not necessary or material or relevant to the issue. A fundamental limitation on the right to discovery is that a party is entitled to a discovery of only such material facts and documents as relate to his own case, he is not entitled to a discovery merely to enable him to disprove or pry into his adversary's case. Indeed, most authorities have held that the matter sought to be discovered must relate to applicant's affirmative case; but others have held that discovery need not be confined to matters in support of party's affirmative case, but may be allowed even as to matters in disproof of the adversary's case or defense, provided applicant's attack on the adversary's case in more than a mere negation thereof or denial of the allegations setting it fort. The mere fact that the matters sought to be discovered are material to defendant's case does not prevent their discovery if they are also material to complainant's case. A bill will not lie to discover the names of the other party's witnesses, or the evidence by means of which the adversary's case exclusively is to be established.


[Emphasis is mine] In Clause 18 it is mentioned as under:


A court of equity has inherent power to compel discovery and production of books and papers in possession of the adverse party, independent of any statute; and the principles which govern discovery in general are applicable to the discovery of documentary evidence. The jurisdiction extends to cases where such books and papers are evidential in an equitable cause pending in the court, in which instance the right to their inspection is incidental to the relief sought therein, and to cases arising under a bill for discovery and incidental relief, or under a bill filed for discovery only in aid of a prosecution or defence in litigation pending or contemplated, and to no others. Notwithstanding the power is inherent, it should be exercised with caution, and with due regard for, and rigid observance of, the constitutional rights of persons to be secure from unreasonable search and seizure. Thus the court should not award discovery by production of documents merely to gratify curiosity or to enable one party to make undue inquisition into the affairs of another; nor should such production be compelled where the facts sought to be disclosed are immaterial or irrelevant, or where the discovery would not avail the case of the party applying. The relief should not be granted where the object sought by the discovery could be as well obtained without the discovery, although in a suit seeking equitable relief primarily it is not necessary to show as a prerequisite that the matter of which discovery is sought cannot otherwise be proved, for the interrogating party is entitled to it even if it is merely cumulative. On the other hand, the applicant or complainant is entitled to discovery by production of documents which will disclose facts material to his case, even though such facts are also material to the adversary's case or serve the applicant only by way of furnishing evidence in disproof of the adversary's case.


Ordinarily a production for inspection in advance of the trial will not be ordered, especially where it would be necessary for the other party to produce such documents at the trial or fail in his claim or defence, but where a preponderating necessity therefor appears, inspection in advance of the trial may be ordered.


At the end under the caption 'Order' it has been mentioned thus:


Order. It has been held to be within the court's discretion to defer ruling on the application for production of books and records, until their materiality and the necessity for their use should be shown. A conditional order for production is not improper. Thus an order requiring defendant to file the document involved if it can be found by him is proper, since its performance is reasonably limited to the possibility of his production of the paper after de diligence. Where plaintiff is seeking relief in the nature of discovery by inspection of defendant's mine in order to enable plaintiff to elect his remedy, details of the performance and supervision of such discovery can be provided for in the decree, and, if discovery proves unreasonably burdensome to defendant, work may be required to be performed by plaintiff at defendant's expense.


Disobedience of order. A court of equity, having jurisdiction to order discovery in aid of an action at law by the production of books and papers, has power to punish disobedience of such an order by commitment for contempt.


Use of disclosures as evidence. The primary object of the proceeding being to secure the document for use in evidence, neither the proceeding by which such production is sought, nor the recitals in the order granting the application are per se admissible in evidence.


[Emphasis is mine]


18. As against these procedural provisions let us see principles contained in various provisions of the Act. Section 162 of the Act deals with production of documents and it reads as under:


Section 162. Production of documents. - A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there maybe to its production or to its admissibility. The validity of any such objection shall be decided on by the Court.


The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.


Section 163, however, deals with giving in evidence the document called for and produced on notice and it reads as under:


Section 163. Giving, as evidence, of document called for and produced on notice.- When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.


19. The rationale behind the Section seems to be that it would be manifestly unjust and unfair to permit one to gain an undue advantage by looking into the documents of his opponent without being obliged to use it as evidence for both of them. Under the pretext of a desire to use in evidence, a party might call for documents the contents of which were not known to him and finding that they did not suit his purpose or went against him, he might wriggle out of the situation by discarding them. It maybe urged that such a rule is not consistent with the party's right to obtain discovery and inspection. Section 163 does not refer to documents produced in obedience to the order of Court under Order 11 Rule 14 of the Code.


20. The notice envisaged in Section 163 is a notice to be given under Section 66 of the Act. Such notice shall be given either to the party or to his counsel in the form as is prescribed by law and if no notice is prescribed by law, in the form as the Court considers reasonable. That notice requires the party to produce the document which is in his possession or power. If the party fails to produce the document despite the notice, the party at whose instance the notice has been issued is entitled to adduce secondary evidence of the contents of the document. The pre-requisite for issuing such notice seems to be that the party must have possession of the document. Such notice is not necessary to lead secondary evidence in Exceptions 1 to 6 mentioned inter alia in the proviso to Section 66 of the Act. It is apt here to consider the provisions of Order 11, Rule 16 of the Code. Although, as discussed hereinabove, the provision refers to the documents mentioned inter alia in the plaint or the affidavit. They can be asked to be produced by issuing a notice to the party. If the document is in possession and custody of the stranger, summons can be sought to be issued as per Order 16, Rule 6 of the Code. The failure to produce documents pursuant thereto, entails penal consequences as per Rule 21.


21. Section 164 of the Act takes care of the situation when the party refuses to produce and it reads as under:


Section 164. Using, as evidence, of document production of which was refused on notice. - When a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court.


22. Section 165 is the other relevant provision in the context and it reads as under:


Section 165. Judge's power to put questions or order production. - The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:


Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved:


Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.


23. A careful perusal of the said provision shows that the Judge may in order to discover or to obtain proper proof of relevant facts may order the production of any document or thing and neither the parties nor their agents were entitled to make such an objection to any such order. The discovery envisaged under this Section is to discover the truth unlike the discovery envisaged under the provisions of Order 11 of the Code, where it is to shorten the litigation. Thus, a distinction can be drawn in the procedural provisions contained in Order 11 of the Code and the Rules of evidence contained in Sections 162 to 165 of the Act.


24. Section 165, therefore, intended to arm Judges with a general power to ask any question, in any form, at any time, of any witness or parties about any fact relevant or irrelevant. The position of a Judge is not that of a moderator between contestants in a game with no inclination to interfere till the violation of its rules. He has a much higher duty to perform. He has to see not only that the proceedings are conducted strictly according to law, but to administer justice and to find out the truth. He must, therefore play an affective part and it is not only his right but it is his duty to ask the witness any question in any manner, the answer to which in his opinion would aid in the discovery of truth. So whenever the judge finds that the examination has not been conducted in a way as to unfold the truth or that obscurities in the evidence should be made clear and intelligible, it is not only his right nay his duty to probe further into matters that he deems important by his own questions. An unbridled power thus has been vested in the Court so as to ascertain the truth notwithstanding the fact that the parties do not propose to have such discovery. However, that unbridled power even has certain limitations. The party can object for the production of the documents claiming privilege.


25. Although Sections 162 to 165 referred to hereinabove come within the domain of the Chapter 10 of the Act dealing with the examination of witnesses the provisions equally apply to the parties.


26. The failure to produce documents pursuant to the notice issued under Section 66, prevents the party afterwards from using the document as evidence without the consent of the other party or the order of the Court. Under Section 89 of the Act, the Court shall presume that every document called for but not produced after notice to produce, was attested, stamped and executed in the manner required by law. If the document in possession is not produced after notice, there is a presumption under Section 114 illustration (g) that the evidence if produced would have been unfavourable to the person who withholds it.


27. It appears that the rules pertaining to production of documents as envisaged in the provisions of the Code and the rules pertaining to production of documents as envisaged in the Act may appear to be overlapping. But, once we consider the object behind such rules, as discussed hereinabove, there appears to be a distinction in between them although thin but appears to be real.


28. Turning to the law on the point in Brooks and Anr. v. Prescott and Ors. 1948 All E.L.R. 907 the Court of Appeal held thus:


The defendants were entitled to resist the application for their production, since the plaintiffs were not entitled to the production of documents which related solely to the defendants' case and did not support the plaintiffs' case, and this privilege was not confined to documents which were admissible in evidence.


29. In State of Punjab v. S.S. Singh the Constitution Bench of the Apex Court in para 44 held thus:


The procedural law in regard to discovery, production and inspection of documents is contained in Order 11, Rule 12, 21. It is true that Order 11, Rule 19, Sub-rule (2) provides that in dealing with a claim of privilege "it shall be lawful for the Court to inspect the document for the purpose of deciding the validity of the claim of privilege". The question is, what is the effect of this provision when it is considered along with Section 162 of the Evidence Act?


Ultimately at the end of para 48, the Apex Court held thus:


This shows that where the State is a party a summons may have to be issued to its appropriate officer calling upon him to produce the documents for inspection. The provisions of Rules 14, 15 and 16 of Order 11 show that affidavits have to be filed by the parties, and the filing of affidavits which is permitted by Order 19 is undoubtedly one mode of giving evidence. Order 16, Rule 1 provides for the issue of a summons to persons whose attendance is required inter alia to produce documents; and Rule 21 of the said order expressly provides that where any party to suit is required to give evidence or to produce a document the provisions as to witnesses shall apply to him so far as are applicable. Thus there can be little doubt that where a privilege is claimed at the stage of inspection and the Court is required to adjudicate upon its validity, the relevant provisions of the Act under which the privilege is claimed as well as the provisions of Section 162 which deal with the manner in which the said privilege has to be considered are equally applicable; and if the Court is precluded from inspecting the privileged document under the second clause of Section 162 the said prohibition would apply as much to a privilege claimed by the State through its witness at the trial as a privilege similarly claimed by it at the stage of inspection. It is hardly necessary to point out that a contrary view would lead to this manifestly unreasonable result that at the stage of inspection the document can be inspected by the Court, but not at the subsequent stage of trial. In our opinion, the provisions of Order 11, Rule 19, Sub-rule (2) must, therefore, be read subject to Section 162 of the Act.


30. The Apex Court seems to have clearly drawn the distinction between the production of the documents at the stage of Inspection and at the stage of trial and held, however, that the provisions of Section 162 would apply even at the stage of inspection i.e., at the stage of discovery by documents.


31. M.L. Sethi v. R.P. Kapur was a case where a suit was sought to be filed in forma pauperist or recovery of damages to the tune of Rs. 7,48,0007- for malicious prosecution. The State as well as the party to the suit filed objections stating that the plaintiff was not a pauper. To prove the said fact that the plaintiff was not a pauper, the defendant filed an application for discovery of documents from the respondent-plaintiff. The Court directed the plaintiff to discover on affidavit, the documents relating to the bank accounts of the respondent viz., pass book, cheque books, counterfoils, etc., and also the documents in respect of the properties held by him and the personal accounts maintained by him. The respondent who was to file an affidavit of discovery, did not file the affidavit in pursuance of the order of the Court. However, he moved an application before the Court that he wanted to file a revision against the order directing him to discover documents requesting time. Time was refused. The Court eventually dismissed his application seeking leave to sue as pauper. That order was challenged along with the order directing discovery of documents before the High Court. The High Court held that in an application under Order 33 which is summary in nature, the sophisticated procedure for discovery should not have been resorted to. In the appeal filed before the Supreme Court it was held in para 5 thus:


Generally speaking, a party is entitled to inspection of all documents which do not themselves constitute exclusively the other party's evidence of his case or title. If a party wants inspection of documents in the possession of the opposition party, he cannot inspect them unless the other party produces them, The party wanting inspection must, therefore, call upon the opposite party to produce the document. And how can a party do this unless he knows what documents are in the possession or power of the opposite party? In other words, unless the party seeking discovery knows what are the documents in the possession or custody of the opposite party which would throw light upon the question in controversy, how is it possible for him to ask for discovery of specific documents?


The Court while dealing with the provisions of Order 11, Rule 12 held thus:


When the Court makes an order for discovery under the rule, the opposite party is bound to make an affidavit of documents and if he fails to do so, he will be subject to the penalties specified in Rule 21 of Order 11. An affidavit of documents shall set forth all the documents, which are, or have been in his possession or power relating to the matter in question in the proceedings. And as to the documents which are not, but have been in his possession or power, he must state what has become of them and in whose possession they are, in order that the opposite party may be enabled to get production from the persons who have possession of them (see Form No. 5 in Appendix C of the Civil Procedure Code). After he has disclosed the documents by the affidavit, he may be required to produce for inspection such of the documents as he is in possession of and as are relevant.


32. The Apex Court also held that the documents sought to be discovered need not be admissible in evidence in the enquiry of the proceedings and it is sufficient that the documents would be relevant for the purpose of throwing light on the matter in controversy.

(The documents sought to be discovered need not be admissible in evidence in the enquiry or proceedings. It is sufficient it the documents would be relevant for the purpose of throwing light on the matter in controversy. Every document which will throw any light on the case is a document relating to a matter in dispute in the proceedings, though it might not be admissible in evidence. In other words, a document might be inadmissible in evidence yet it may contain information which may either directly or indirectly enable the party seeking discovery either to advance his case or damage the adversary's case or which may lead to a trail of enquiry which m have either of these two consequences. The word 'document' may this context includes anything that is written or printed, no matter what the material may be upon which the writing or printing is inserted or imprinted. We think that the documents of which the discovery was sought, would throw light on the means of the respondent to pay court fee and hence relevant. - vide ML Sethi . R P Kapur 1972 Supra)



33. Sasanagouda v. S.B. Amarkhed was a case of election petition. The election of the elected candidate was challenged on the grounds of alleged corrupt practices by indulging in booth capturing and rigging of booths. A petition in I. A. No. 5 of 1991 under Order 11, Rule 14 was filed by the election petitioner requesting the seventh respondent-election officer to produce certain documents enumerated therein. The High Court by its order dated 25-11 -1991 allowed the petition and summoned the documents. Accordingly documents were produced in Court. It was sought to be contended that no sufficient foundation was laid in election petition with material particulars of the alleged capturing of booths and rigging and, therefore, no case was made out for opening the ballot boxes and examining the used ballots. It was only to fill the gaps and to make roving enquiry to fish out grounds to set aside the election, the petition was filed to summon the documents. It was held in para 7 thus:


The Court, therefore, is clearly empowered and it shall be lawful for it to order the production, by any party to the suit, such documents in his possession or power relate to any matter in question in the suit provided the Court shall think right that the production of the documents are necessary to decide the matter in question. The Court also has been given power to deal with the documents when produced in such manner as shall appear just. Therefore, the power to order production of documents is coupled with discretion to examine the expediency, justness and the relevancy of the documents to the matter in question. These are relevant considerations, which the Court shall have to advert to and weigh before deciding to summoning the documents in possession of the party to the election petition.


The Apex Court, however, did not consider its earlier two Judgments; one rendered by a Constitution Bench.


34. In Gopal Krishnaji v. Mohd. Haji Latif , a three Judge Bench of the Apex Court, while dealing with the question of burden, quoted with approval the Judgment of the Privy Council in Murugesam Filial v. Gnana Sambandha Pandara Sannadi AIR 1917 PC 6 at 8 and it is thus:


A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough - they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in Their Lordship opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would be row light upon the proposition.


The Apex Court held ultimately that it is for the party in whose custody the best evidence is, to produce the document notwithstanding the question of burden whether it is on him or on the adversary.


35. In Krishna Rao v. State of Andhra a Bench of this Court held in para 4 thus:


A plain reading of Order XI, Rule 21 shows that the Court could have invoked the penal provisions of that rule only if there had been an order to answer interrogatories or for discovery or for inspection of documents under Rules 11, 12 and 18 of Order XI. The plaintiff did not apply under any of the provisions of Order XI at all. He merely gave a notice to produce under Order XII, Rule 8. If there was default on the part of the defendant, the plaintiff's notice enabled him to adduce secondary evidence of the contents of the documents under Section 65, Clause (a) of he Evidence Act. It is not even suggested that the plaintiff sought to let in secondary evidence of these documents and that such evidence was shut out. If follows that nothing turns on the partial non-compliance on the part of the defendant with the plaintiff's notice under Order XII Rule 8.


36. In Gobinda Mohun v. Magneram Bangur & Co. AIR 1940 Calcutta 331. It was held thus:


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.


It is true that in a suitable case a defendant may object to the production of a document on the ground that it relates solely to his title, but if on the other hand, that document may have some bearing in support of the plaintiff's title, such objection cannot be validly raised. If an order for discovery is made under Order 11, Rule 12 all the documents relating to the case should be embodied in the affidavit of documents by the person against whom the order for discovery is made. If however the defendant considers that he is entitled to protection in respect of the production of any particular documents which may be entered in the affidavit under Order 11, Rule 13 of the Code, he will be at liberty to raise such objection at the proper stage of the proceedings if and when he is ordered to produce such documents under Order 11, Rule 14 or to give inspection of them under Order 11, Rule 18.


37. In Indian Foils Ltd. v. 5th Industrial Tribunal AIR 1872 Calcutta 308, it was held thus:


The Court has got ample powers to make an order for production of a document at any time during the pendency of the suit. But before such an order can be made the Court must satisfy itself and record a finding to the effect that the documents are in the possession or power of the party against whom the order is sought and they relate to the matter in question before the Court. An order made without such satisfaction is without jurisdiction and is liable to be set aside.


38. The Caluctta High Court sought to distinguish the Judgment of the A.P. High Court in P. Varalakshmamma v. P. Bala Subrarmanyam 1958 (2) An.W.R. 246 : AIR 1958 A.P. 157, wherein it was held thus:


It is lawful for the Court, under Order 11, Rule 14, Civil P.C., at any time during the pendency of any suit to order the production of a document. The words "at any time" are very significant and important. Rule 14 does not require that the order for production should be made only after an order of discovery is obtained under Order 11 Rule 12 C.P.C.


39. Sri Seshadri Naidu, learned Counsel appearing for the plaintiffs, seeks to place reliance upon certain passages in Corpus Juris Secundum. In para 1026 under the caption "evidence" it was held thus:


A corporation may be required to produce its books and papers where it is a party to an action. Under a statute to that effect, the courts may order the production of books and papers belonging to, or in possession of, a stranger, as well as those belonging to, or in possession of, a party.


The court is empowered to require the production of any paper by a party who is present in court and who has possession thereof, if material to the case, and has the power to require, and should require, the production of any pertinent documentary evidence which may illustrate the issue and which is within the power or custody of any person then personally in court.


In para 1028 it was mentioned thus:


A notice to produce is ordinarily a prerequisite to an order compelling the production of documents, but not when they are in court. Among other requirements, the notice should clearly identify the desired documents and should give a reasonable time for their production.


In para 1034 it was dealt as under:


Under various statues, failure to produce documents pursuant to order may result in the entry of judgment against the defaulting party, acceptance as true of the facts intended to be proved, the presumption that the document would be as described, or the entitlement of the party procuring the order to give secondary evidence of the contents of the documents.


40. From the above discussion it appears that the rules of procedure envisaged under Order 11 of the Code and the rules of evidence contained in Chapter 10 of the Act operate in different spheres. They may appear to be analogous in certain areas, but the purpose or object behind these provisions would clearly tell us that the former rules are meant to shorten the litigation at the initial stage before the trial and the latter rules of evidence are meant to discover the truth at the stage of trial or giving evidence. Not only that discovery of facts or discovery of documents can be allowed only with the leave of the court, discovery by means of Interrogatories can be objected on the ground that It Is scandalous, Irrelevant, mala fide and on the ground of privilege. The answer to the interrogatory shall be by means of an affidavit. Similarly, discovery of documents can be objected on the ground of legal or professional privilege; that they may tend to criminate a party or expose him to forfeiture; that they are protected by public policy; that they are not in the sole possession of the party; that they solely relate to the case of the party; that they are in the possession of the party as an agent or a representative of another; and that they disclose evidence of party's own case. Again the discovery of documents shall be made upon oath. Non-compliance with the order of discovery of documents entails if it is by the plaintiff the dismissal of his suit and if it is by the defendant the striking down of his defence, whereas, under the rules of evidence a notice is envisaged to be given to the adversary by the party requiring the production of the documents or if it is a case of a witness summons to be issued to produce a document into the Court and upon the production of the document either by the party or by the witness a party who has called for the document is bound to give it as evidence when the opposite party requires him to do so. And if the party who is required to produce a document fails to produce a document upon receiving notice, he cannot use the document as evidence without the consent of the other party or order of the Court at a later stage and it is open to the party to lead secondary evidence of the document required and for the Court to draw adverse inference as per the provisions contained in illustration (g) to Section 114 of the Act. No penal consequences are envisaged under the provisions of the Act. The document sought to be discovered need not be admissible in evidence in the enquiry of the proceedings and it is sufficient that the document would be relevant for the purpose of throwing light on the matter in controversy, unlike in the case where the documents are sought to be introduced in evidence not only they shall be relevant but also they shall be admissible in evidence and shall be proved. The above distinguishing factors clearly show the difference between the discovery of fact or documents and production of documents under the provisions of the Act.


41. The learned Counsel for the first defendant while seeking to contend that the first defendant cannot be compelled to produce income tax returns seeks to place reliance upon the judgment of the Madras High Court in Nagammai Achi v. Alamelu Achi AIR 1957 Madras 401 wherein it was held thus:


The declaration contained in Section 54 is intended for the benefit of the assessee to enable him to make a full and true disclosure, and it is open to him to waive that advantage, but he cannot be compelled to waive that advantage and produce the documents into Court.


The Court is prohibited from ordering a plaintiff or a defendant to produce his original income tax returns equally as it cannot order the income tax officers themselves to produce them and to direct that a litigant should produce a certified copy of his return would render Section 54 of the Income Tax Act, in some respects a dead letter.


Hence, an order under Order 11, Rule 14, Civil P.C. refusing to direct the plaintiff to produce certain documents declared to be confidential is perfectly valid and correct.


42. Having regard to the view taken by me hereinabove, the individual parties cannot be compelled to produce the documents if they refuse to produce the documents pursuant to the notice served upon him by the adversary or an order as a matter of that passed by the Court so as to ascertain the truth in accordance with the provisions contained in Section 165 of the Act for non-compliance of such a direction to produce the documents the penal consequences will not follow as in the case of discovery of documents as per the provisions contained in Order 11, Rule 21 of the Code. However, certainly the Court is entitled to draw the adverse inference.


43. In Gopal Krishnaji's case (referred to 5 supra) a three Judge Bench of the Apex Court held in para 5 at page 1416 as under:


Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.


44. In Agarchand v. Deochand it was held thus:


In order to raise the presumption under Section 114(g) of the Evidence Act, it was not necessary to follow the procedure of giving a notice for the production of documents under Order XI C.P.C., or to summon the documents under Order XVI C.P.C. The only important condition laid down is that the party should prove that the document is in existence and is in the possession or custody of the party against whom the adverse inference is sought to be drawn.


45. Therefore, it is always open to the Court wherever necessary when the fact situation warrants to draw the necessary adverse inference for the non-production of the documents relevant to the matter in controversy, notwithstanding the fact that the burden is upon a particular party in whose custody the documents are in existence and there is no need to discover the documents.


46. Turning to the matrix of the instant case, it is discernible from the affidavit filed in support of the petition that a notice was served upon the counsel for the defendants requiring to produce the relevant records as enumerated in detail therein and when pursuant to the said notice the defendants failed to produce the documents, the plaintiff filed a petition under Order 11, Rule 14 of the Code to direct the first defendant to produce their income tax returns for the period 1995-96 to 2001-2002 along with admitted balance sheet, profit and loss account, and details of capital accounts along with the statement of bank account of Aar Bee Enterprises for the period 1995-96 to 2001-2002 bearing Current A/c No. 3434, OD A/c Nos. 6125 and 6187 with Vijaya Bank, Bank Street, Hyderabad and also Current A/c. No. 3583 with A.P. Mahesh Co-operative Urban Bank Limited, Sultan Bazaar, Hyderabad. Having regard to the reasons mentioned hereinabove, the application filed under Order 11, Rule 14 of the Code is misconceived and is not tenable. It is nobody's case that the plaintiffs are seeking discovery and inspection at this stage. Some of the documents, which the plaintiffs want the first defendant to produce before the Court, are obviously, having been filed in I.A. No. 109/2004, available on the file of the Court and the remaining documents are in possession of the first defendant as per the plaintiffs' case. Insofar as the documents which are in the custody of the Court in connection with a different proceeding, Rule 10 of Order 13 of the Code envisages that the Court may on its own motion or on the application filed by the parties to a suit, sent for those documents which are on its own file or from any other Court and inspect the same. If the parties require the same, they can obtain certified copies of those documents and file them before the Court during the course of enquiry or trial while leading evidence. If the documents are not in the custody of the Court and are in the possession of the parties to the suit, it is open to the opposite party to issue notice as envisaged under the principles of evidence and request the opposite party to produce those documents before the Court. Non-production thereof pursuant to the notice will entail the necessary consequences as can be seen from the provisions of the Act, as discussed hereinabove. If the documents are public documents and are in the custody and possession of the public servants who are empowered to grant certified copies thereof, it shall be the endeavour of the party who require them to obtain certified copies whereof in the first instance and produce the same before the Court. If for any reason, certified copies could not be issued, it is open to the party to approach the Court and request it to send for those documents from the possession of the public servant. Rule 128 and 129 of the Civil Rules of Practice clearly envisage the practice in such cases. When that be the procedure to be followed, filing an application under Order 11, Rule 14 of the Code seeking a direction to be issued to the adversary for production of such documents is not the correct approach. Obviously, the application in this case has been filed under Order 11, Rule 14 and the Court below directed the first defendant to produce some of the documents while dismissing the application filed by the plaintiff in respect of the other documents. Such a direction is not required as can be seen from the practice prevailing before the Courts of law and the legal position as discussed hereinabove.


47. Having held that the bank accounts are relevant, the Court below should have sent for those documents if they are available in connection with I.A. No. 109/2004 instead of directing the defendants to produce the bank statements and other accounts required. The defendants cannot produce those documents since they are now in the custody of the Court in connection with I. A.No. 109/2004. If I.A. No. 109/2004 is a different proceeding, the party who is seeking the production of those documents as well can obtain certified copies or file an application to send for those documents in accordance with the practice envisaged in Rules 128 and 129 of the Civil Rules of Practice.


48. Insofar as the income tax returns of the first defendant are concerned, there has been a prohibition contained in the provisions of the Income Tax Act for producing those documents by the Department. The proper procedure in such cases seems to be to issue notice to be first defendant to file the income tax returns and if the first defendant fails to file them, the plaintiffs can either lead secondary evidence by obtaining the certified copies thereof from the Department if granted or request the Court to draw the necessary adverse inference for non-production of the documents by the first defendant despite the notice. It is not the case of any discovery as regards the existence of the documents and the need to inspect those documents so as to shorten the litigation. It is a matter where trial process was on and has been going on. For the above reasons, that part of the impugned order allowing the petition in part directing the first defendant to produce the bank statements, accounts, etc. is liable to be set aside. Dismissal of the petition insofar as the income tax returns are concerned, cannot be found fault with for the reasons hereinabove discussed, but that will not preclude the plaintiffs to follow the procedure envisaged as per the provisions contained in Sections 66 and 162 to 165 of the Act.


49. For the above reasons, the Civil Revision Petition No. 608 of 2005 is allowed at the threshold and the impugned order to the extent directing the first defendant to produce bank statements etc. is hereby set aside. The Civil Revision Petition No. 331 of 2005 is dismissed at the threshold. However, it will not preclude the plaintiffs from following the procedure as discussed hereinabove. Under the circumstances, I direct both the parties to bear their respective costs.



Supreme Court of India

Babbar Sewing Machine Co vs Trilok Nath Mahajan on 7 August, 1978

Even assuming that in certain circumstances the provisions of order Xl, rule 21 must be strictly enforced, it does not follow that a Suit can be lightly thrown out or a defence struck out, without adequate reasons. The test laid down is whether the default is wilful. In the case of a plaintiff, it entails in the dismissal of the suit and, therefore, an order for dismissal ought not be made under order 11, rule 21, unless the court is satisfied that the plaintiff was willfully withholding information by refusing to answer interrogatories or by withholding the documents which he sought to discover. In such an event, the plaintiff must take the consequence of having his claim dismissed due to his default, i.e. by suppression of information which he was bound to give: Denvillier v. Myers.(2) In the case of the defendant, he is visited with the penalty that his defence is liable to be struck out and to be placed in the same position as if he had not defended the suit. The power for dismissal of a suit or striking out of the defence under order XI, rule 21, should be exercised only where the defaulting party fails to attend the hearing or is guilty of prolonged or inordinate and inexcusable delay which may cause substantial or serious prejudice to the opposite party.


It is well settled that the stringent provisions of order XI, rule 21 should be applied only in extreme cases, where there is contumacy on the part of the defendant or a wilful attempt to disregard the order of the court is established.


An order striking out the defence under order XI, rule 21 of the Code should, therefore, not be made unless there has been obstinacy or contumacy on the part of the defendant or wilful attempt to disregard the order of the court. The rule must be worked with caution, and may be made use of as a last resort.


The principle governing the court's exercise of its discretion under Order XI, rule 21, as already stated, is that it is only when the default is wilful and as a last resort that the court should dismiss the suit or strike out the defence, when the party is guilty of such contumacious conduct or there is a wilful attempt to disregard the order of the court that the trial of the suit is arrested.






Delhi High Court

Essel Sports Pvt. Ltd. vs Union Of India & Ors. on 26 August, 2013


A bare perusal of Rule 1 of Order XI itself shows that there are certain limitations on the right of a party to deliver interrogatories. Firstly, no party shall deliver more than one set of interrogatories, without an order from the Court for that purpose. This clearly shows that a party is not permitted to engage in a roving inquiry by serving interrogatories on the opposite party. The mechanism of service of interrogatories is also not to be resorted to as a substitute for cross-examination. The second proviso in the said Rule states that the interrogatories, which do not relate to any matters to the question in the suit, shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness. Consequently, the scope of the interrogatories is much narrower, when compared to the scope and width of the questions which could be posed during cross-examination of a witness.

There are, however, limits to the utility of the power to order interrogatories to be answered. Those limits are set by the rules of relevancy, by the demands of decency and propriety, and by the even wider basic requirements of fair play, justice and equity. For example, although one of the objects of interrogatories is to ascertain an adversary's case, yet they cannot be permitted to be used by a party merely to obtain a disclosure beforehand of evidence supporting the adversary's case as this would give one party an unfair advantage over the other. The object of Order XI, Civil Procedure Code, is more akin to that of Order X, Civil Procedure Code, than to that of cross-examination."


Delhi High Court

Naveen Jindal vs M/S Zee Media Corporation Ltd. & ... on 8 May, 2017

The plaintiff moved the aforesaid application under Order 11 Rule 14 CPC to direct production of the original news programme telecast by defendant No. 1 on 13.01.2015, and the article published by defendant No.2 in DNA on 09.01.2015 on the premise that the originals of the said telecasted programme and the news article published in DNA are in the power and custody of the respective defendants. The application was opposed by the defendants. The learned Joint Registrar has, while allowing the application, given the following reasons in his impugned order:


"9. A reading of Order 11 Rule 14 CPC would show that the court can direct any party to produce documents at any stage during the pendency of the suit, if such documents are relevant to the matter in controversy and the same are necessary for fairly disposing of the suit or for saving the cost. In M.L. Sethi v. R.P. Kumar, AIR 1972 Supreme Court 2379, it was observed that the court is clearly empowered and it shall be lawful for it to order the production, by any party to the suit, such documents in his possession or power relate to any matter in question in the suit provided the court shall think right that the production of the document are necessary to decide the matter in question. The court also has been given a power to deal with the documents, when produce in such manner as shall appear just. Therefore, the power to order production of documents is couple with the discretion to examine the expediency, justness and the relevancy of the documents to the matter in question. These are relevant questions, which the court shall have to advert to and weigh before deciding to summoning the documents. It has also been held that admissibility of the documents is not a relevant consideration while deciding whether to direct the discovery.

10. The purpose and object behind these provisions clearly shows that the object is to shorten the litigation at the initial stage before the trial. In the present case, defendants have not denied the fact that news programme dated 13.01.2015 was telecast by defendant no.1 and article dated 09.01.2015 was published by defendant no.2. The defendants have denied the news programme and were defamatory in nature. The entire case filed by the plaintiff revolves around these two programmes. Defendants must be in possession of the original documents (Master C.D.) of the news programme dated 13.01.2015 and the article published on 09.01.2015. The litigation can be cut short if the defendants are directed to produce these documents on oath. Merely, because plaintiff has not filed the CD of the news programme dated 13.01.2015 and has only filed the transcript cannot be made a ground for denying the application filed by the plaintiff. The purpose of recording evidence is to arrive at the truth and not it is irrelevant as to who has produced the original documents. The authenticity of transcript and the copy of the article filed by the plaintiff can very well be adjudicated if the defendants produce the original records i.e. the Master C.D. of the programme dated 13.01.2015 and the original publication dated 09.01.2015.

11. Hence, in my considered opinion, the application filed by the plaintiff deserves to be allowed and the same is accordingly allowed. Defendants are directed to produce on oath the documents mentioned in prayer para of the application within four weeks from today".

A plain and grammatical meaning of the said rule is that a party to the suit, who is in possession or power of a document, may be directed by the Court during the pendency of the suit to produce the same. It is not any or every document that a party may be called upon to produce from his power or possession. The document should be one "relating to any matter in question in the suit, as the Court shall think right;". The document of which the plaintiff seeks production, namely the original recording of the impugned telecast, and the original publication of the impugned article would, obviously, be in the power and possession of the defendants since the defendants are the authors of the said works, and they have been telecast/ published by the defendants. There cannot be any dispute that the telecasted programme and the published news article relate to matters in question in the suit. In fact, the entire suit revolves around the said telecasted programme/ publication. As noticed hereinabove, there is no dispute about the factum of the impugned telecast being made, or the impugned article being published by the respective defendants. The plaintiff has produced the transcript of the programme as telecasted. The copy of the telecasted programme as well as the copy of the publication made by defendant No.2- even if produced by the plaintiff, shall constitute secondary evidence. The plaintiff is obliged to cause the production of the best evidence and only in case the original is not produced, or is not capable of being produced, the plaintiff may lead its copy in evidence as secondary evidence.


12. The submission of Ms. Singh that the plaintiff should first produce its own version of the video recording of the telecast, before calling upon the defendant No.1 to do so, has no merit. This is for the reason that it is not necessary that the plaintiff may even be possessed of a copy of the video recording. As aforesaid, the production of the said copy - even if possessed by the plaintiff, would not suffice as that would not be the best evidence which the plaintiff is obliged to lead. So far as the obligation of the plaintiff to prove the transcripts of the telecasted programme is concerned, it is for the plaintiff to take steps in that regard, and if the plaintiff fails to do so, the plaintiff shall take its consequences. The defendant cannot insist that the plaintiff should produce its copy of the telecasted programme; that the plaintiff should state on oath if he is not possessed of the video recording of the telecasted programme; the plaintiff should lead in evidence the person who has prepared the transcript of the telecast and the plaintiff should also lead in evidence a certificate under Section 65B of the Evidence Act. It is no concern of the defendants as to how the plaintiff wishes to pursue its case.


Court in M. Sivasami v. Vestergaard Frandsen A/S & Ors., 2010 I AD (Delhi) 211. has culled out the purpose sought to be achieved by resort to a proceeding under Order XI Rule 14 CPC. The Division Bench in paragraph 7 of this decision, inter alia, observed:


"7. ... ... ... A reading of the aforesaid provisions of Order 11 Rules 12 and 14 bring out certain salient features as under:

(i) The documents sought to be discovered and produced have to be relevant to the matter in controversy viz matters in question.

(ii) The documents have to be in the possession and power of the person against whom discovery and production is sought.

(iii) Discovery and production of the documents which are sought for are necessary at that stage of the suit;

(iv) The discovery and production is necessary for fairly disposing of the suit or for saving costs.

(v) The discovery and production may be general or limited to certain classes of documents as the Court in its discretion deems fit and the production will only be ordered if the Court considers it just."

14. In M.L.Sethi (supra), the Supreme Court, inter alia, observed in relation to the procedural scheme contained in Order XI CPC:

"that the rules of procedure envisaged under Order 11 of the Code and the rules of evidence contained in Chapter 10 of the Act operate in different spheres. They may appear to be analogous in certain areas, but the purpose or object behind these provisions would clearly tell us that the former rules are meant to shorten the litigation at the initial stage before the trial and the latter rules of evidence are meant to discover the truth at the stage of trial or giving evidence. Not only that discovery of facts or discovery of documents can be allowed only with the leave of the court, discovery by means of interrogatories can be objected on the ground that it is scandalous, Irrelevant, mala fide and on the ground of privilege. The answer to the interrogatory shall be by means of an affidavit. Similarly, discovery of documents can be objected on the ground of legal or professional privilege; that they may tend to criminate a party or expose him to forfeiture; that they are protected by public policy; that they are not in the sole possession of the party; that they solely relate to the case of the party; that they are in the possession of the party as an agent or a representative of another; and that they disclose evidence of party's own case.".

15. It is not the case of the defendants/ appellants that the plaintiff is seeking production of documents which are confidential in nature or have proprietary information belonging exclusively to one party, which information such party is entitled to protect from coming into the hands of the opposite party, who is his competitor.



Prayer rejected in order 11 rule 12 and 14 :

Arun Jaitley Vs. Arvind Kejriwal CS(OS) No. 3457/2015 on 01.03.2017.

The Court rejected the defendant's application under Order XI Rules 12 & 14 CPC since the defendant by the said application sought production by the plaintiff of the records of the plaintiff's bank accounts as well as those of his family members. The Court rejected the application by holding that the documents sought from the plaintiff are nothing but in the nature of fishing and roving inquiry. The Court further observed that it is for the applicant/ defendant No.1 to adduce evidence of the accounts from which monies are alleged to have flowed to plaintiff and to his family members instead of finding out from the bank accounts of the plaintiff and his family members whether they have received any money.


Bombay High Court

Nishi Prem vs Javed Akhtar And Ors. on 19 September, 1987

Order XI, Rule 1 of the Code of Civil Procedure prescribes that in any suit the parties by leave of the Court may deliver interrogatories provided that the interrogatories which do not relate to any matters in question in the suit shall be deemed irrlevant, notwithstanding that they might be admissible on the oral cross-examination of the witness. This rule is enacted to enable the parties to know the nature of the opponent's case, but the rule does not entitle the party to ascertain the facts which constitute exclusively the evidence of the other side, the reason being that it would enable unscrupulous parties to tamper with the witnesses of the other side and to manufacture evidence in contradiction and so shape his case as to defeat justice. In cases where the plaint or written statement does not necessarily disclose the nature of the case, then interrogatories are administered to make good the deficiency. Interrogatories can also to be administered to obtain admissions from other parties to facilitate the proof of the claim. Order XI, Rule 6 of the Code of Civil Procedure provides that the interrogatories may be objected on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit or that the matters inquired into are not sufficiently material at that stage. It is well settled that the parties are not entitled to administer interrogatories for obtaining discoveries of facts which constitutes evidence of its adversary's case or title.


The plaintiff has sought disclosure of names with the object of suing those persons or adding them as defendants to the suit and interrogatories administered with this object cannot be granted. It is not indispute that the cause of action against the defendants is complete and it is not the claim that the plaintiff would not be entitled to get a decree against the defendantsinabsenceof disclosure of source of information. The Court of Appeal in the case of Edmondson v. Birch & Co., Limited reported in (1905) 2 KB 523. considered this question and held that the interrogatories put in order to enable the plaintiff to bring an action against persons whose names would be disclosed are not put bona fide and should be declined. An action for libel was brought against a Company carrying on business in London in respect of a cablegram sent by the defendants. On the strength of this cablegram, the plaintiff who was engaged as defendants' representative in Japan was dismissed from employment and the plaintiff brought action complaining of the cablegram as libellous. The plaintiff applied for leave to administer the interrogatories, inter alia, seeking information as to from whom the information was derived by the defendants. The Master allowed the interrogatory, and on appeal, the Judge affirmed the order, but the Court of Appeal reversed that decision and Lord Justice Romer held that interrogatory was sought with an illegitimate motive as the plaintiff was really seeking to assert a right of action against some person other than the defendants and was not making the enquiry bona fide for the purpose of the action already instituted. The learned Judge held that the Court would be acting wisely in not allowing the interrogatory seeking the names of the persons from whom the information was derived by the defendants. In a subsequent decision in the case of Plymouth Mutual Co-operative and Industrial Society Limited v. Traders' Publishing Association Limited reported in (1906) 1 KB 403, which is also an action for libel, the defendants were directed to answer the interrogatories which required the defendants to disclose the names of persons from whom the information was obtained and which was relied in publishing the expressions of opinion. The defendants objected to answer the interrogatories on the ground that the same is irrelevant and not administered bona fide for any purpose of the suit. It was claimed that the effect of interrogatory was to compel the defendants to give the names of persons who would be their witnesses on the plea of justification and the object is to obtain the names in order to bring action against them. Lord Justice Vaughan Williams held that even though the interrogatory was relevant to the issue raised in the action, the defendants should not be compelled to answer it as it is put for some purpose altogether outside the action, for instance, for the purpose of bringing another action against some other person than the party interrogated. It was held that it would be right to refuse to a How interrogatory when it was plain that the interrogatory was put for some purpose outside the action. In the case of British Steel Corporation v. Granada Television Ltd, reported in (1981) 1 All ER 417, Sir Robert Mcgarry V-C while delivering judgment sitting in Chancery Division, observed that running through the previous decisions, there are two stands of reasoning for the rule for not forcing to disclose the source of information, one that the process of discovery ought not to be used for the ulterior purpose of enabling the plaintiff to discover the name of someone against whom one could bring another action. We are in respectful agreement with the principle laid down by these authorities. The interrogatories are not delivered to enable the plaintiff to gather casue of action for institution of separate action, which has no bearing to the action already instituted. In our judgment, as the plaintiff clearly asserted in the affidavit in support of the Chamber Summons that the plaintiff is interested in suing the persons whose names would be disclosed by defendant No. 3. the interrogatories should not have been granted.

"In England it is considered contrary to the interests of justice to compel a litigant to disclose to his opponent before trial the evidence to be adduced against him. It is considered that so to do would give undue advantages for cross-examination and lead to endless side issues; and would enable witnesses to be tampered with, and give unfair advantage to the unscrupulous.


It is very true that an honest and fair-dealing litigant, on seeing how strong a case his opponent had, might at once withdraw from further litigation. But our rules of evidence and of discovery are not based upon the theory that it is advantageous to let each side know what the other can prove, but rather the reverse."


The third decision is in the case of Knapp v. Harvey reported in (1911) 2 KB 725 where the action was brought by the plaintiff to recover damages for personal injuries occasioned to him through being bitten by a dog belonging to the defendant. It was alleged in the statement of claims that the dog was of a fierce and mischievous nature, and accustomed to attack and bit mankind, and that the defendant wrongfully kept the said dog well knowing that it was of such fierce and mischievous nature and so accustomed. The defendant traversed the allegations and applied for and obtained an order directing the plaintiff to disclose any specific occasion or occasions on which the dog had bitten a man, woman or a child. The plaintiff delivered the particulars by asserting that the defendant's dog bit a man in Stanford Street in the month of June or July, 1908, and man in Tachbrook Street, Pimlico in the month of July or August, 1908 and on both the occasions, the defendant was verbally informed of the fact. The defendant subsequently applied in Chamber for leave to administer the interrogatories, one of which was what is the name of the person alleged to have been bitten by the dog in June or July, 1908 and in July or August, 1908. The Master allowed the interrogatories and the plaintiff subsequently appealed before the Court of Appeal and it was claimed on behalf of the defendant that the defendant is entitled to interrogate the plaintiff as to any facts material to the issues raised in the action, although those facts may not be directly in issue, and it is no objection that the answering of the interrogatory may incidentally involve the disclosure of the name of a witness who will be called by the party interrogated. Lord Justice Vaughan Williams while allowing the appeal held that it is plain that the identity of the person is not material to the actual issues in the matter and the defendant wants their names in order that he may make inquiries about them, and, if necessary, may interview them. It was held that where a party in an action is asking for the names of persons who will be witness of his opponent, it is necessary to show that the names were relevant for the purpose of establishing some material facts, not necessarily a fact directly in issue, but some fact is material to the proof of his case. Lord Justice Moulton sounded a warning by observing that one danger inallowing a litigant to obtain information as to the evidence upon which his opponent intends to rely is that he may in this way find out, not that his opponent's case is untrue, but that his opponent is not aware of some awkward fact or facts, and he may for that reason be emboldened to persevere with an unrighteous defence. Lord Justice Buckley observed that the argument for the defendant really comes to this, that, it he knew in advance whom the plaintiff was going to call as witnesses, he would be in a better position to meet their evidence and that is an inadmissible contention. Once the conclusion is reached that the objectof the interrogatories is to find out what the evidence adduced by the plaintiff in support of his case is going to be, or what witnesses he intends to call, it follows that the interrogatories cannot be supported. These three decisions, in our judgment, clearly sets out the principle that the interrogatories should not be permitted to enable the party to ascertain which witnesses would be examined by the other side at the trial.



23. Order 11
.pdf
Download PDF • 652KB

Comments


bottom of page