Production of documents in suit which is in possession of opposite party.
Rajesh Bhatia And Ors. vs G. Parimala And Anr. on 30 November, 2005
Equivalent citations: 2006 (3) ALD 415, 2006 (3) ALT 129
Author: T C Rao
Bench: T C Rao
T. Ch. Surya Rao, J.
1. Inasmuch as both these revision petitions emanate from a common order dated 20-12-2004 passed by the learned VIII Additional Senior Civil Judge (Fast Track Court) City Civil Court, Hyderabad, in I.A. No. 250 of 2004 in O.S. No. 35 of 2002, they can be disposed of together.
2. Briefly stated, the facts are thus:
The plaintiffs filed the suit for recovery of an amount of Rs. 3,83,0007- from the defendants 1 and 2. The case of the plaintiffs was that on the request of the first defendant the plaintiffs handed over the original sale deed dated 30-08-1993 and the fixed deposit receipts worth Rs. 3,83,0007- to her and her husband C.S. Sudhir Kumar. Plaintiffs used to receive interest amount of Rs. 3,5007- from the second defendant-bank on the above fixed deposits till May, 2001. However, without any reason whatsoever the second defendant-bank stopped suddenly from the month of June 2001 the payment of interest. On enquiry, the plaintiffs came to know that these fixed deposit receipts were given to the bank on hypothecation by the first defendant, who availed credit facilities and bank guarantee. When the bank guarantee was revoked by Andhra Bank, the second defendant-bank closed the above said F.D.Rs. prematurely without giving any notice to the plaintiffs and adjusted the amounts covered by those receipts against the revocation of bank guarantee taken by the first defendant. Questioning the highhanded act of both the defendants, the plaintiffs filed the suit for realization of the amounts covered by the fixed deposits.
3. The case of the first defendant was that the first plaintiff on whom the first defendant reposed confidence misappropriated certain funds by committing fraud in the first defendant’s firm. The amount thus misappropriated was invested under various fixed deposit receipts. Therefore, the plaintiff had no locus stand! to claim the amounts covered by the said fixed deposit receipts.
4. During the course of trial in the suit, the plaintiff filed I.A. No. 250 of 2004 under Order 11, Rule 14 of the Code of Civil Procedure (for brevity ‘the Code’) requesting the Court to direct the first defendant to submit the income tax returns for the period 1995-1996 to 2001-2002; the audit balance sheet; profit and loss account; details of capital account; the statement of bank account of M/s Aar Bee Enterprises for the period 1995-1996 to 2001-2002 bearing Current Account No. 3434; O.D. Account No. 6125 and O.D. Account No. 6187 with Vijaya Bank, Bank Street Branch, Hyderabad; and Current Account No. 3583 in the A.P. Mahesh Co-operative Urban Bank Limited, Sultan Bazar, Hyderabad on the premise that they are relevant for proper adjudication of the case. Earlier a notice was served upon the counsel for the first defendant requiring him to submit all the abovementioned records and when the first defendant failed to produce those documents they filed the petition.
5. Under the impugned order the learned Judge dismissed the petition partly insofar as the income tax returns are concerned and allowed the petition partly directing the first defendant to produce the bank statements of Aar Bee Enterprises, some of which had been filed in I.A. No. 109 of 2004.
6. Having been aggrieved by the said order, the plaintiffs filed C.R.P. No. 331 of 2005 as against that part of the impugned order dismissing their application and the first defendant filed C.R.P. No. 608 of 2005 as against that part of the impugned order directing herto produce the bank statements. The matter is, therefore, at large before this Court.
7. 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
(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. Kaput 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.
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.