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Discovery of documents When the adversary party is simply compelled to disclose the documents which are under its possession or power, then that is called as the discovery of documents. The discovery of documents is covered under the Rule 12-14 Order XI of the code. Who may seek discovery? Any party to a suit under oath may apply for an order from the court for the discovery of documents which are related to the matter in question of the suit from the adversary party. Against whom discovery may be ordered? An appropriate court can order any party of the suit to dispose of the documents which are in its power or possession to the asking party. However, the party need to be related to the suit. Conditions While the discovery of documents is being asked, two conditions need to be taken care of by the court:-
- The discovery ordered is necessary for the fair disposal of the suit.
- The discovery will save costs. Objection against discovery The party can raise an objection if the documents required to submit comes under the purview of the privileged documents. However, objecting by filing an affidavit would not be enough, the party who is objecting also needs to give proper reasoning behind such objection. The proper reasoning will enable the court to decide the objection raised by the party. It is open to the court to inspect the documents and check the viability of the objection raised by
the party. Another objection which can be filed is that discovery is not necessary at this stage of the suit. Admissibility of document The documents which are asked under the discovery of documents are not always admissible in court. The documents may be admissible in the case if they are relevant to the case and which may have some impact on the issues dealt under the case. In Gobinda Mohun v. Magneram Bangur & Co, it was held that: “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 Rule 12 of Order 11 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. The Calcutta High Court sought to distinguish the Judgment of the A.P. High Court in P. Varalakshmamma v. P. Bala Subramanyam 1958 wherein it was held that: 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.”.
- Any party can get an order from the court for the discovery of the documents or for inspection of documents.
- It is the discretion of the court to pass such an order.
- The court can use its power any time during the suit, either suo moto or by the application of the party.
- The court shall not pass an order for the discovery, inspection or production until the written statement has been filed by the defendant.
- No such order shall be passed if the application is made by the defendant until he has not filed a written statement.
- Discovery of the document shall not be made if the court is not of the opinion that this order will lead to fair disposal of the suit or useful for saving cost.
- A party to whom an order of discovery of documents has been passed, as a general rule, shall produce all the documents which are under his possession related to the suit.
- If the parties are taking any legal protection under the privileges provided under the code, then the court shall verify such documents and give the protection.
- Failure to comply or default from the side of the parties to the order for discovery, production or inspection, can lead to adverse inference on the party. Inspection of documents Under Order XI Rule 12-21 of the CPC, the rule for the inspection of discovery is provided. As per Rule 12 of the code the party can compel other parties to produce the documents without filing an affidavit to apply to the court, relating to any matter of question-related to the suit. However, such documents need not be admissible in court unless they give out some connection in a matter of controversy. As per the Rule 15-19 of Order XI of the code, the inspection of documents can be divided into two categories:
- The documents which are referred to in the affidavits or pleadings of the parties.
- The documents which are not referred to in the pleadings of the party but are in the power or possession of the parties.
And the parties are allowed to get the inspection of the former category documents, not the latter one. Privileged documents Privileged documents are :
- Public records;
- Confidential communication;
- Documents which have exclusive evidence of the parties’ title. Such mentioned privileged documents are protected from the production. So to get benefit from this privilege and to avoid the risk of repetition, the court can order the parties to produce the document to the court. And the court can inspect such documents and ascertain the validity of the claims which were made to make that set of documents underprivileged. Premature discovery As per Rule 20, a discovery is termed as premature discovery or inspection:
- When the right to discovery is based on the determination of any issue or question in dispute; or
- For any reason, it is desirable that any issue or question in a suit should be determined before deciding upon the right of discovery. Non-compliance with order of discovery or inspection As per Rule 21, the order of the court is binding in nature, and the parties who do not comply shall be liable to pay the penalty. Hereby, we can understand that the intent of the legislature to provide such provision is:
- To compel the parties to disclose all the material documents and facts on oath.
Admissions are substantive evidence by themselves. But as per section 17 and section 21of the Indian Evidence Act, they are not conclusive in nature. However, if admission is proved beyond doubt and duly proved, then irrespective of the fact if the witness appeared in the witness box or not, the admission can be considered admissible. In the case of Biswanath v Dwarka Prasad, the Apex Court observed that:
- The admissions are made by the maker against himself unless otherwise proved or explained.
- The admissions are considered as proprio vigore that means a phrase which by its own force. In another case of Supreme Court, Bhogilal Chunilal Pandya vs The State Of Bombay, it has been stated that even if admissions made are not communicated to the other person, then also that can be used against him. For example: if the person has written in the accounts book regarding debt, then if such evidence is available then that will be considered as an admission even if the debt was not communicated to other people. Kinds of admissions Under the Code, the admissions are admitted in three ways:-
- By agreement or by notice;
- Actual admissions, oral or by documents;
- The express or implied admissions from the pleadings or by non-traverse by agreement. Conclusiveness of admission The admissions are not conclusive in nature. They can be erroneous or gratuitous. Admissions made can be withdrawn or explained away. It can be proved wrong. The context of the admission can be made after hearing the pleadings in entirety. Oral admissions prevail over documentary or records of rights. Even the admission, if made earlier, can be proved to be collusive or fraudulent. And one more important thing is, if the admissions are made by the co-defendant then that can not be used against other defendants.
Notice to admit case As per Rule 1, any party to the suit can admit the whole or part of the case of the other side in writing. Notice to admit documents Within seven days of the notice served by the other party to admit the documents, the party shall respond to the notice. If not responded on the mentioned time then the party which fails to do so will be liable to answer the delay and the costs of providing them. Every document which was called upon to admit if:
- Not denied specifically or by necessary implication, or
- Not stated to be admitted by the party in their pleading, or
- Not replied during the reply to the notice; shall be deemed to be admitted. One exception to the above provision is the person under disability. If a person without any valid reason refuses or neglects to admit documents then that person shall be penalised and will be made to pay to the opposite party. The court can suo moto call the party to admit the documents. The form of the notice to submit the documents shall be in Form No. 9 in Appendix C, with variations as per requirement. Notice to admit facts Any party in the suit can call the other party to admit facts of the case by giving them notice which shall not be later than nine days before the day fixed for the hearing. And the other party if refuses or neglects to admit the facts then within six days after service of notice or as per the time prescribed by the court, shall be informed to the court. However, the costs of proving such fact or facts shall be paid by the party.
While we talk about judgments which are relied upon by the court passing decree, those must be clear, unequivocal and categorical, it shall not be vague and conditional. However, in the case of Razia Begum v. Sahebzadi Anwar Begum, the Apex Court discouraged the courts to pass a decree under this provision which not only affects the parties but which also affects the generations. The court observed that while passing a decree under Rule 6 Order 12, the judge should also look at Rule 5 Order 7 of the code. By reading both sections at the same time it shall be concluded that decree passed under Rule 6 is applicable to commercial transactions only, not otherwise where the claim is based on documents which need proof. So in the matters of will, gift, sale or coparcenary documents admissions can be proved to be erroneous, hence, they shall not be treated as proved on the basis of such admissions. Production, impounding and return of documents- Order 13 Production of documents As per Rule 1 of Order XIII, the parties or their pleaders shall produce the documents at or before the settlement of disputes. Admission of documents Subject to the provisions of the Code the admission of the documents are allowed as evidence in the suit when the following particulars are made:
- The number and title of the suit,
- The name of the person producing the document,
- The date on which it was produced, and
- A statement of it having been so admitted; The endorsed documents shall be signed by the Judge. Where the admission of documents in evidence is:
An entry in a letter-book or a shop book; or Other accounts which are in current use, or Entry in a public record produced from the public office or by a public officer, or An entry in a book or account belonging to a person other than a party on whose behalf the book or account is produced; under such circumstances, the person can produce a copy of the document, after the proper examination, comparison and certification as per Rule 17 of Order VII of the Code. Further, the documents admitted into evidence shall be part of the record of the suit. Return of documents If any party to the suit or not is having the desire to receive back any of the documents submitted by him in the suit which is placed on the record is entitled to receive the documents unless it is impounded by the court under Rule 8. The court can return the documents on the following grounds:-
- Where the suit is one in which an appeal is not allowed, when the suit has been disposed of, and;
- where the suit is one in which an appeal is allowed when the Court is satisfied that the time for preferring an appeal has elapsed and that no appeal has been preferred or if an appeal has been preferred when the appeal has been disposed of;
- During the pendency of the suit, the party can receive the documents if the following conditions are fulfilled: the party is substituting the original document with a certified copy from a proper officer; Undertakes to produce the original copy if required. While returning the document which has been admitted in evidence, a receipt shall be given to the person who is receiving it. Rejection of documents
- It must be a declaration by a person.
- It shall not have any inferences, it shall contain facts only.
- It must be in the first person.
- It must be in writing.
- It must be statements which are taken under oath or affirmed before any other authorized officer or a Magistrate. Contents of affidavit As per Rule 3, an affidavit shall contain only those facts to which the deponent is aware off as true to his personal knowledge. However, interlocutory applications can be filed wherein he can admit his belief. Evidence on affidavit As per section 3 of the Evidence Act, affidavits are not considered as evidence. When there is a need to prove the facts, oral evidence is normally taken into consideration by the court. However, Rule 1 Order 19 is invoked by the Court when it finds that it is necessary to make an order for any particular fact which may be proved by affidavit. If a person provides evidence under the affidavit then the opposing counsel has the right to cross-examine or reply-in-affidavit. Further, the person who is making an affidavit shall put on those facts only to which he has true personal knowledge. If he gives a statement, not to his personal knowledge then in such case he shall mention the true source. The counsel shall advise the deponent to make sure that he puts facts which he knows rather than what he believes. The court can reject the affidavit if it is not properly verified and not in conformity with the rules of the code. At the same time court can also give an opportunity to the party to file the affidavit properly. In the interlocutory applications like interim injunctions, the appointment of receiver, attachment of property wherein the rights of the parties are not determined conclusively, can be decided on the basis of the affidavit.
False affidavit Under Section 191, 193 , 195 , 199 of IPC,1860, filing a false affidavit is an offence. Giving a lenient view will undermine the value of the document and it will harm the proceedings and will provide no justice to the parties. Criminal contempt of court proceedings can be initiated by the court against the person who files false affidavits in the court of law. Strict actions are taken against public officials who files false affidavits. As per section 193 of the IPC: a person who intentionally gives false evidence or fabricates false evidence during a judicial proceeding, he shall be punished with seven years of imprisonment and fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. Conclusion The procedures provided under the CPC are so important, that if not followed properly, can adversely affect the parties. The court has discretionary powers under Order 11, 12, 13 and 19 to pass such order which it deems fit to adjudicate matter fairly. The parties shall also follow the procedures provided within the time frame, so that the case can be disposed off quickly and effectively.
