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TMI Blog2005 (11) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 When the bank guarantee was revoked by Andhra Bank, the second defendant-bank closed the above said F.D. Rs.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 high-handed 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 st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 refusin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be adopted with such variance as circumstances may require. For brevity and better understanding of the matter, they may be extracted hereunder thus: No. 4 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. No. 5 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 productio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 - 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rine 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 AIR 1962 AP 249 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ma 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 AIR 1960 AP 101 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 petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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