“Law Master’s” Publication ‘Discovery inspection and production of documents’ Prof. .S. D. Bhosale 48

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DISCOVERY, INSPECTION AND PRODUCTION OF DOCUMENTS

QUESTION BANK

1. Explain the rules of discovery, inspection and production of documents.

SHORT NOTES

1. Affidavits.

2. Interrogatories.

3. Discovery of documents.

4. Admissions.

SYNOPSIS

I. INTRODUCTORY-

II. DISCOVERY AND INSPECTION (O. XI)-

Discovery is of two kinds, viz-

1) Discovery by Interrogatories (Rr. 1 to 11)-

Rules as to Interrogatories (Rr. 1 to 11)-

i) Manner of Interrogatories (R. 1, 2 & S. 30)-

ii) Costs of Interrogatories (R. 3)-

iii) In the case of a corporation (R. 5 & R. 23)-

iv) Form of Interrogatories (Rr. 4 8, & 9)-

v) Order to answer or answer further (R. 11)-

vi) Using answers at trial (R. 22)-

vii) Objection to Interrogatories (R. 6)-

viii) Setting aside and striking out Interrogatories (R. 6)-

2) Discovery of documents (Rr. 12 to 14)-

III. INSPECTION OF DOCUMENTS-

“Law Master’s” Publication ‘Discovery inspection and production of documents’ Prof. .S. D. Bhosale 49

1) Inspection of documents referred to in pleadings or affidavits (R. 15)-

2) Order for inspection (R. 18 & 19)-

3) Privileged documents (R. 19 (2)-

4) Premature discovery (R. 20)-

5) Non- compliance with the order for discovery (R. 21)-

IV. ADMISSION (O. 12)-

1) Admission meaning-

2) Notice to admit case (R. 1)-

3) Notice to admit documents-

4) Notice to admit facts (R. 4)-

5) Judgment on admission (R. 6)-

V. PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS (O. XIII)-

1) Original documents to be produced at or before the settlement of issues (R. 1)-

2) Rejection of irrelevant or inadmissible documents (R. 3)-

3) Endorsement on the document-

(i) Endorsement on document admitted in evidence (R. 4)-

(ii) Endorsement on copies (R. 5)-

(iii) Endorsement on the rejected document (R. 6)-

4) Return of the document (R. 9)-

5) Impounding of documents (R. 8)-

VI. AFFIDAVITS (O. XIX)-

I. INTRODUCTORY-

If, after filing a plaint by the plaintiff and a written statement by the defendant, it

appears to either party (plaintiff or defendant) that the nature of his opponent’s case is not

sufficiently disclosed in his pleading, he is entitled to know the nature of his opponent’s

case. To enable such party to know his opponent's case, the Code has made provisions of

discovery and inspection (O. XI), admission (O. XII), Production impounding and return

of documents (O. XIII), and affidavits (O. XIX). We will discuss them one by one-

II. DISCOVERY AND INSPECTION (O. XI)-

Discovery means obtaining material facts and documents from an adversary to know

and ascertain the nature of the case, support his own case, narrow the points in the issue,

or avoid proving admitted facts.

Discovery is of two kinds, viz-

1) Discovery by Interrogatories (Rr. 1 to 11)-

“Law Master’s” Publication ‘Discovery inspection and production of documents’ Prof. .S. D. Bhosale 50

Interrogatories are asking questions to the other party of the suit. Where one party

requires information as to the facts from the opposite party, he may ask, in writing, a series

of questions to that other party. Such questions are called Interrogatories.

Rues as to Interrogatories (Rr. 1 to 11)-

i) Manner of Interrogatories (R. 1, 2 & S. 30)-

Interrogatories may be administered in writing by the leave of the Court and subject

to such conditions and limitations as may be prescribed. No party can deliver more than

one set of interrogatories to the same party without an order from the court.

The court shall decide on Interrogatories within seven days before filing them.

ii) Costs of Interrogatories (R. 3)-

The costs of the Interrogatories shall be borne by the party administering the

Interrogatories. However, the Court is also empowered to direct the party at fault to pay

the costs of the Interrogatories irrespective of the result of the suit.

iii) In the case of a corporation (R. 5 & R. 23)-

Where a party to a suit is a corporation or a body of persons empowered to sue or

be sued, Interrogatories may be administered to an officer or member of such corporation

or body.

Where a party to a suit is a minor or a lunatic, Interrogatories may be administered

to his next friend or guardian.

iv) Form of Interrogatories (Rr. 4, 8 & 9)-

Interrogatories and affidavits in answer to Interrogatories should be delivered in the

prescribed form (i.e. According to the Forms in Appendix C)¹.

Interrogatories shall be answered by affidavit to be filed within ten days or within

such further time as the Court may allow.

v) Order to answer or answer further (R. 11)-

Where any person interrogated omits to answer or answers insufficiently, the party

interrogating may obtain an order from the Court requiring him to answer or to answer

further.

vi) Using answers at trial (R. 22)-

Any party may, at the trial of a suit, use in evidence any one or more of the answers

or any part of an answer of the opposite party to interrogatories without putting in the others

or the whole of such answer.

¹Appendix C ***

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Provided always that in such case, the court may look at the whole of the answers,

and if it is of the opinion that any others of them are so connected with those put in that the

last mentioned answers ought not to be used without them, it may direct them to be put in.

vii) Objection to Interrogatories (R. 6)-

Interrogatories which are scandalous, irrelevant or not bona fide for the purpose of

the suit or not sufficiently material may be objected.

viii) Setting aside and striking out Interrogatories (R. 7)-

Any Interrogatories may be set aside on the ground that they have been administered

unreasonably or vexatiously or struck out on the ground that they are prolix, oppressive,

unnecessary or scandalous.

2) Discovery of documents (Rr. 12 to 14)-

Any party may apply to the Court for an order directing another party to a suit to

make a discovery on oath of the documents which are or have been in his possession or

power relating to any matter in question therein. On the hearing of the such application,

the Court may either refuse or adjourn the same, if satisfied that such discovery is not

necessary or not necessary at that stage of the suit, or make such order, either generally or

limited to certain classes of documents, as may, in its discretion be thought fit. Discovery

shall not be ordered when and so far the Court shall be of the opinion that it is not necessary

either for fairly disposing of the suit or for saving costs.

III. INSPECTION OF DOCUMENTS-

There are following rules relating to the inspection of documents. Viz-

1) Inspection of documents referred to in pleadings or affidavits (R. 15)-

For the purpose of inspection, documents may be divided into two classes, viz-

(i) documents as referred pleadings or affidavits of parties; and

(ii) other documents in the possession or power of the party but not referred to in pleadings

of the parties.

R. 15 deals with the first type of document. It lays that every party to a suit shall

be entitled at or before the settlement of issues to give notice to any other party, in whose

pleadings or affidavits reference is made to any document or who has entered any

document in any list annexed to his pleadings to produce such documents for inspection of

the party who has given the notice, or of his pleader and to permit him or them to take

copies thereof. Any party not complying with such notice shall not afterwards be at liberty

to put any such document in evidence on his behalf in such suit. He is only allowed if he

satisfies to the Court sufficient reason for non-production.

However, in the case of the second type of document, i.e. documents not referred

to in the pleading or affidavit, the party desiring the inspection can only proceed by way

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of an application to the Court along with an affidavit satisfying the Court that the document

is relevant to the case (R. 18 (2).

2) Order for inspection (R. 18 & 19)-

The Court may, on an application of the party desirous of inspecting the documents

of the opposite party, make an order for inspection at such place and in such manner as it

may think fit.

R. 19 has made provision for obtaining verified copies of the documents. It lays

down that, where inspection of any business books is applied for, the Court, if it thinks fit,

instead of ordering inspection of the original books, order a copy of any entries therein to

be furnished and verified by the affidavit of some person who has examined the copy with

the original entries.

3) Privileged documents (R. 19 (2)-

Where on an application for an order for inspection, privilege is claimed for any

document, it shall be lawful for the Court to inspect the document for the purpose of

deciding as to the validity of the claim of privilege unless the document relates to matters

of State.

4) Premature discovery (R. 20)-

The discovery is said to be premature if, before deciding it court needs to decide any

issue or question first. In other words, discovery is premature when the right to discovery

depends upon the determination of any issue or question in the dispute or (for any other

reason) it is desirable that any issue or question in a dispute in a suit should be determined

before deciding upon the right to discovery. The Court is empowered to postpone such

premature discovery.

5) Non- compliance with the order for discovery (R. 21)-

Where any party fails to comply with any order to answer interrogatories or for

discovery or production of documents, and if such party is a plaintiff, his suit may be

dismissed for want of prosecution, and if such party happens to be a defendant, his defence

may be struck-off.

IV. ADMISSION (O. 12)-

1) Admission meaning-

By admission, one party admits the other party's case, i.e., it accepts the case of

another party in whole or in part to be true. According to S. 58 of the Indian Evidence Act,

“facts admitted need not be proved”. The object of the procedure of admission is two-fold:

firstly, admission results in saving the Court time in taking proof of admitted facts, and

secondly, admissions shorten litigation. (The nature of admission and its procedure is

discussed in the notes of The Law of Evidence).

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2) Notice to admit case (R. 1)-

Any party to a suit may give notice in writing that he admits the whole or any part

of the case of the other side.

3) Notice to admit documents-

Either party may call upon the other party to admit, within seven days from the date

of service of the notice, any documents (R. 2).

Every document that a party is called upon to admit, if not denied specifically or by

necessary implication, or stated to be not admitted in the pleading of that party or in reply

to the notice to admit documents, shall be deemed to be admitted except as against a person

under disability (R. 2 A).

Even if notice to admit documents, as mentioned above, is not given, the Court, on

its own motion, can call upon the other party to admit any document and shall record

whether the party admits, refuses, or neglects to admit such documents (R. 3 A).

4) Notice to admit facts (R. 4)-

Any party may, by notice in writing, at any time not later than nine days before the

day fixed for the hearing, call on any other party to admit, for the purposes of the suit, only

any specific fact or facts mentioned in such notice.

In case of refusal or neglect to admit any document after notice, costs shall be paid

by the party so neglecting or refusing, irrespective of the result of the suit, unless the Court

directs otherwise.

5) Judgment on admission (R. 6)-

Where the admission of facts has been made either in the pleading (or otherwise),

whether orally or in writing, the Court may at any stage of the suit, either on the application

of any party or of its own motion and without waiting for the determination of any other

question between the parties, make such order or give such judgment as it may think fit,

having regard to such admissions.

V. PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS (O. XIII)-

There are following rules relating to production, impounding and return of

documents, viz-

1) Original documents to be produced at or before the settlement of issues (R. 1²)-

The parties or their pleaders have to produce all the documentary evidence in

original where copies thereof have been filed along with a plaint or written statement on or

before the settlement of issues. (We have already discussed provisions as to the production

of documents at the time of filing a plaint in the topic of ‘Plaint and written statement’.)

²Substituted by the Code of Civil Procedure (Amendment) Act, 1999 for rules 1 and 2.

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Such documents are to be filed along with the list of such documents. However, the

following documents will be allowed to be produced later on when-

i) they are produced for the cross-examination of the witnesses of the other party; or

ii) handed over to a witness merely to refresh his memory.

2) Rejection of irrelevant or inadmissible documents (R. 3)-

The Court may at any stage of the suit reject any document which it considers

irrelevant or otherwise inadmissible, recording to the grounds of such rejection.

3) Endorsement on the document-

(i) Endorsement on document admitted in evidence (R. 4)-

On every document admitted in evidence in the suit, the following particulars shall

be endorsed (a) the number and title of the suit, (b) the name of the person producing the

document, (c) the date on which it was produced, and (d) a statement of its having been so

admitted, such endorsement shall be signed by the judge.

(ii) Endorsement on copies (R. 5)-

Where a document admitted in evidence in the suit is an entry in a letter-book or, a

shop book or other account in current use, an entry in a public record produced from a

public office or by a public officer, or an entry in a book or account belonging to a third

party, a copy of the entry may be furnished. The same endorsement as discussed above is

to be made on such documents.

(iii) Endorsement on the rejected document (R. 6)-

Where any document is considered to be inadmissible in evidence by the Court, the

same endorsement as discussed above is to be endorsed on that document, with a statement

of its having been rejected.

Every document admitted in evidence shall form part of the record of the suit.

However, the document which is not admitted in evidence shall not form part of the

evidence (R. 7).

4) Return of the document (R. 9)-

When any party is desirous of receiving back any document produced by him, is

entitled to get it back provided-

(i) the document should not have been impounded,

(ii) the suit is one in which an appeal is not allowed, or

(iii) the suit is one in which appeal is allowed, but the time to file an appeal is elapsed, or

(iv) appeal was preferred but is rejected.

However, the document may be returned earlier than mentioned above if the person

applying supplies a certified copy or ordinary copy or undertakes to produce the original if

required.

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5) Impounding of documents (R. 8)-

The Court may, for sufficient cause, direct any document, book or exhibit produced

before it in any suit to be impounded and kept in the custody of an officer of the Court for

such period and subject to such conditions as it thinks fit.

VI. AFFIDAVITS (O. XIX)-

An affidavit is ‘a statement of facts in the writing of deponent on oath duly affirmed

before any Court, Magistrate, or authorised officer’.

Generally, facts are to be proved by documentary or oral evidence. Affidavits are

not considered evidence if not permitted by the Court. Therefore, this rule empowers the

Court to order any fact to be proved by affidavit on such condition as it thinks fit (R. 1).

However, the opposite party has every right to cross-examine such person submitting an

affidavit (R. 2).

Such affidavit shall be confined to such facts as the deponent is able to prove to his

personal knowledge, except on interlocutory application on which statement of his belief

may be admitted, provided that the grounds of his belief are to be stated. Interlocutory

application means an application for attachment before the judgment, for interim injunction

or for appointment of a receiver, etc.

An affidavit should be verified.. Verification is essential in order to prove the

genuineness and authenticity of contentions and allegations made.

O. XVIII R.1 makes it mandatory to give examination-in-chief of a witness on

affidavit.

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