Explain the provisions relating to discovery and inspection of documents

Discovery and Inspection of Documents: Order XI

One of the most powerful tools that civil procedure places at the disposal of a litigating party is the right of discovery — the right to compel one's adversary to disclose the documents that lie in his possession, power, or control, which have a bearing on the matters in question in the suit. The underlying rationale is simple but profound: a party to a suit should not be allowed to keep material evidence under lock and key while his opponent gropes in the dark. Discovery levels the playing field by bringing to the surface all documents that are relevant to the controversy, ensuring that the trial proceeds on the basis of complete information rather than concealment. The general power to order discovery is conferred by Section 30 of the Code, which enables the court, at any time, either of its own motion or on the application of any party, to make such orders as may be necessary in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence. The detailed rules governing these powers are contained in Order XI of the Code.

The Supreme Court, in Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeria (AIR 2012 SC 1727), made a telling observation in this context: Courts must give greater emphasis to the veracity of the pleadings and documents in order to ascertain the truth, which is the foundation of justice. The court observed that Section 30 ought to be frequently pressed into service by judicial officers and judges — a provision which, by that time, had been too rarely used. The search for truth through documentary disclosure is not a technical game of process; it is a substantive component of the fair administration of civil justice.

The Two Dimensions of Order XI

Order XI contains provisions relating to two distinct but related processes — discovery by interrogatories (Rules 1 to 11) and discovery and inspection of documents (Rules 12 to 21). The two processes serve different but complementary purposes. Interrogatories are addressed to the opposite party to elicit information about facts and documents. Discovery of documents compels a party to disclose the documents he holds. Inspection provides the applying party with an opportunity to physically examine those documents. The three processes together constitute an integrated mechanism for ensuring that no material information is concealed at the time of trial.

Discovery by Interrogatories: Rules 1 to 11

Under Rule 1 of Order XI, in any suit the plaintiff or defendant may, by leave of the court, deliver interrogatories in writing for the examination of the opposite party or parties. The rule is carefully hedged with safeguards. First, a party cannot deliver more than one set of interrogatories to the same party without a specific court order. Second, interrogatories that do not relate to any matters in question in the suit are deemed irrelevant — even if those very questions might have been admissible on the oral cross-examination of a witness. This second condition marks a crucial distinction between interrogatories and cross-examination, a distinction that the courts have carefully maintained.

Interrogatories can only be administered to a party to the suit — not to a witness. Cross-examination, on the other hand, can be directed at any person, whether a party or a witness. Furthermore, questions put only to test the credibility of a person are not permissible as interrogatories, though they are perfectly admissible in cross-examination. Questions that are relevant as interrogatories must have reasonably close connection with matters in question. This was affirmed by the Supreme Court in Raj Narain v. Indira Nehru Gandhi (AIR 1972 SC 1302), where the test of relevancy was carefully elucidated — the questions asked must refer to some definite and existing state of circumstances and must not be put merely in the hope of discovering some flaw in the opponent's case. Such speculative fishing interrogatories are not permitted.

Under Rule 2, the party seeking to deliver interrogatories must submit the particular interrogatories proposed to the court, and by reason of the 1999 Amendment, the court is required to decide upon such application within seven days of its filing. In deciding whether to grant leave, the court considers any offer made by the opposite party to deliver particulars, to make admissions, or to produce documents. Leave is granted only as to such interrogatories as the court considers necessary either for disposing fairly of the suit or for saving costs. This test — fair disposal of the suit or saving of costs — is the governing standard for the entire discovery regime under Order XI, and it pervades every provision from interrogatories to inspection.

Where a party wishes to object to answering an interrogatory, Rule 6 permits objections to be taken in the affidavit in answer itself. The grounds for objection include that the interrogatory 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, or that the interrogatory is privileged. On the question of privilege — a matter of considerable importance — the court is entitled to inspect the document for the purpose of deciding whether the claim of privilege is justified, unless the document relates to matters of State.

The interrogatories are to be answered by affidavit, under Rule 8, within ten days or within such other time as the court may allow. The affidavit in answer is in the form prescribed in Appendix C to the Code. Under Rule 10, no formal exceptions may be taken to the affidavit in answer; if a party objects to the sufficiency of the answer, the court decides whether the affidavit is sufficient or not. If the interrogated party omits to answer or answers insufficiently, Rule 11 enables the interrogating party to apply to the court for an order requiring the opponent to answer or answer further — either by affidavit or by viva voce examination as the court may direct.

Discovery of Documents: Rules 12 and 13

Rule 12 provides the primary mechanism for discovery of documents. Any party may — without filing any affidavit — apply to the court for an order directing any other party to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question in the suit. On such an application, the court may either refuse it, adjourn it, or make an order for discovery either generally or limited to certain classes of documents. The guiding principle is stated in the proviso to Rule 12: discovery shall not be ordered when and so far as the court is of the opinion that it is not necessary either for disposing fairly of the suit or for saving costs.

When an order for discovery is made, the party against whom the order is made must file an affidavit of documents in the form prescribed in Appendix C (Form No. 5). This affidavit, prescribed under Rule 13, must specify which, if any, of the documents the party objects to produce and on what grounds. The purpose of the affidavit is two-fold: first, to secure, as far as possible, that all material documents are disclosed by putting the opposite party on oath, with the consequent penalties attaching to a false oath; and second, to put an end to what might otherwise be a protracted enquiry as to the material documents actually in the possession or control of the opposite party.

Where no application under Rule 12 is made and no order is obtained, a party is not bound to produce any document. He is entitled to refrain from producing any document he considers irrelevant and no adverse inference can ordinarily be drawn against him for non-production alone — unless, from the nature and circumstances of the case, it was an imperative duty on his part to produce them. The courts have also held that the documents sought to be discovered need not themselves be admissible in evidence; it is sufficient that the document would be relevant for the purpose of throwing light on the matter in controversy. This is a broader and more generous standard than admissibility, and it serves the policy of maximum disclosure before trial.

Production of Documents: Rule 14

Rule 14 of Order XI deals with a conceptually distinct process — the production of documents. The discovery of documents (under Rules 12 and 13) is primarily concerned with compelling the opponent to disclose the existence of documents by affidavit; production, by contrast, involves the physical handing over of those documents to the court for its examination and use in the suit. Under Rule 14, the court may, at any time during the pendency of any suit, order the production by any party, upon oath, of such documents in his possession or power relating to any matter in question in the suit as the court thinks fit. The court may then deal with such documents, when produced, in such manner as appears to it to be just.

An important distinction that the courts have consistently drawn is that an order for production under Rule 14 can be made by the court of its own motion, whereas an application for discovery under Rule 12 is made by a party. As the authorities note, where a party fails to produce documents under Rule 14, the court is entitled to raise an adverse presumption against that party on account of the non-production. The existence of the court's independent power to order production reflects the deeper philosophy of civil procedure — that the court is not merely a passive referee but an active participant in the search for truth.

Inspection of Documents: Rules 15 to 18

Rules 15 to 18 deal with inspection of documents, which is the process by which a party physically examines the documents referred to in the pleadings or held by the opposite party. For this purpose, it is useful to distinguish between two categories of documents: first, documents referred to in the pleadings or affidavits of the parties; and second, other documents in the possession or power of the party but not so referred to.

For the first category, Rule 15 provides that every party to a suit is entitled — but only at or before the settlement of issues, as amended by the 1999 Amendment — 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 document for inspection and to permit the giving party to take copies thereof. The consequence of non-compliance with such notice is significant: the defaulting party shall not afterwards be at liberty to put any such document in evidence on his behalf — unless he can satisfy the court that the document relates only to his own title (in the case of a defendant) or that some other sufficient cause existed. This provision ensures that inspection is sought before the issues are settled and the hearing commences, so that neither party is taken by surprise.

For the second category of documents — those not referred to in the pleadings — Rule 18(2) requires the application for inspection to be founded upon an affidavit showing what documents inspection is sought, that the party applying is entitled to inspect them, and that they are in the possession or power of the other party. Here too, the court shall not order inspection unless it is satisfied that inspection is necessary either for disposing fairly of the suit or for saving costs.

Under Rule 17, the party to whom notice of inspection is given must, within ten days of receipt of that notice, deliver to the giving party a notice stating a time within three days at which the documents may be inspected at the office of his pleader, stating which documents he objects to produce, and on what ground. Where the party omits to give such notice, or objects, or offers inspection elsewhere than at the office of his pleader, the other party may apply to the court under Rule 18(1) for an order for inspection in such place and manner as the court thinks fit.

Under Rule 19(2), where 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. The court thus becomes the arbiter of whether a document is truly privileged before it can be withheld from inspection.

Premature Discovery: Rule 20

A sensible provision to prevent the misuse of the discovery process is found in Rule 20, which deals with premature discovery. Where the party from whom discovery or inspection is sought objects to the same, the court may, if satisfied that the right to discovery depends on the determination of any issue or question in dispute, or that for any other reason it is desirable that a particular issue be determined first, order that such issue be determined before deciding upon the right to discovery or inspection. This enables the court to sequence the proceedings in a rational manner — preventing the disclosure of sensitive documents until the threshold question of whether the party is entitled to discovery has been resolved.

Consequences of Non-Compliance: Rule 21

The most important provision in Order XI, from the perspective of enforcement, is Rule 21, which deals with the consequences of non-compliance with an order for discovery. Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, the consequences are severe. If the defaulting party is the plaintiff, the suit shall be liable to be dismissed for want of prosecution. If the defaulting party is the defendant, his defence shall be struck out and he shall be placed in the same position as if he had not defended.

However, the power under Rule 21 is not to be exercised lightly. As amended by the 1976 Act, an order under Rule 21 can only be made after notice to the parties and after giving them a reasonable opportunity of being heard. The Supreme Court and the High Courts have consistently held that the sanction of striking off the defence should not be imposed unless the defendant has been obstinate or has made a wilful attempt to disregard the court's order for production of documents. Mere inadvertence or bona fide misunderstanding may not attract the penalty. The sine qua non for exercising the power under Rule 21 is a failure to comply with a court's order — not a mere failure to produce documents in the ordinary course. It is worth noting that the suit cannot be dismissed under Rule 21 for non-compliance with Rule 14 relating to production of documents — the dismissal or striking off can only follow from non-compliance with an order for discovery or inspection properly made under the relevant rules.

Under Rule 21(2), where an order is made dismissing the suit under Rule 21(1), the plaintiff is precluded from bringing a fresh suit on the same cause of action. This is a stringent bar — far more severe than the effect of a rejection of the plaint under Order VII, Rule 11, which preserves the right to file afresh. The reason for this stricter consequence is that a dismissal under Rule 21 is a dismissal for deliberate non-compliance with a court's order — conduct that goes to the integrity of the judicial process itself and cannot be treated as lightly as a technical defect in the plaint.

The Commercial Courts Amendment

The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 introduced a new and more rigorous disclosure regime for suits involving commercial disputes of a specified value. Under the amended Order XI applicable to such suits, the plaintiff is required to file a list of all documents and photocopies of all documents in his possession, control, or custody, pertaining to the suit, along with the plaint itself. This includes documents referred to in the plaint, documents relating to any matter in question in the proceedings — whether in support of or adverse to the plaintiff's case — and an obligation of continuing disclosure that continues until the disposal of the suit. The defendant is similarly required to file a list of documents along with the written statement.

This represents a significant shift from the traditional approach of discovery by application after the suit is instituted. In commercial matters, the parties are expected to put all their cards on the table at the very outset, so that the court can manage the proceedings with efficiency and the parties can litigate without the delays that arise from post-pleadings discovery applications. The underlying philosophy is that transparency at the threshold reduces the scope for surprise and protracted interlocutory skirmishes — a philosophy that may well, in time, influence the evolution of the discovery regime in ordinary suits as well.