Provisions in regard to discovery and inspection of documents
It is seen that after a suit is instituted by the presentation of a plaint by the plaintiff and written statement by the defendant in a court, both parties require to know certain facts about each other’s case. Not only the material facts of the opponent party but also the documents in his possession or power which are relevant to issue in the suit can also be asked to produce since such facts and documents maybe used to maintain the case or impeach or destroy the case. There are therefore two kinds of facts in a case which are facto probanda, the ones’ which constitute a party’s case and facto probantia, which form the evidence by proving such facts. Only facto probanda facts are allowed to be known beforehand to the party.
Therefore it is clear from above submissions that discovery of document simply means to compel the adversary party to disclose the facts and documents which it has in its possession or power. It is thus a compulsory disclosure by a party to an action of facts or documents on which the other side wishes to rely.[1] When such information as to facts is required, the party may put up a series of questions which are called interrogatories, whereas if such facts rely on certain documents, it is called discovery of documents.
The rule as to inspection of discovery is provided in Order XI Rule 12-21 of the Code of Civil Procedure 1908. Rule 12 enables a party without filing an affidavit to apply to the court for the purpose of compelling his opponent to disclose the documents in possession or power, relating to any matter in question in the suit.[2] Such documents need not to be admissible in evidence unless they throw light on the matter of controversy. Such an order of discovery is binding in nature and therefore non compliance thereto would lead to penalties mentioned in Rule 21. The intent of legislature behind such provisions is to avail the parties for the disclosure of all facts and material documents on oath, having penalties attached to it in case of disregard. Secondly, the provision puts an end to protracted enquiry as to the material documents actually in possession or power of the opposite party.[3]
Since it is already mentioned that a discovery may be sought by filing an affidavit or otherwise against a party to the suit but there are two conditions precedent for a discovery to be ordered by the court that are, firstly that such discovery is necessary for fair disposal of suit and secondly, such discovery in a way or other saves cost. A discovery cannot be made of privileged documents and it will not be enough to state an objection in an affidavit as to such documents but it must be stated that how they are privileged so as to enable the court to decide the claim.[4] Therefore the doctrine of crown privilege based on public welfare requires justice to be done. It is open to court to inspect the document for deciding the sustainability of the claim.
There are certain rules as to discovery which includes, any party to a suit may apply to the court for an order of discovery on oath of the documents which are or were in the possession or power relating to any matter in question in the suit and non compliance to production of documents may draw an adverse inference on the opposite party.
The provisions regarding inspection of documents are divided in two categories by virtue of Rule 15 to 19 of order XI. First one deal with documents referred to in pleadings or affidavits of parties, and second one deals with other documents in possession or power of the party but not referred to in the pleadings of the parties. A party is entitled for inspection in regard to documents of first class only. Since privileged documents are protected from production such as public records, confidential communications and documents having exclusive evidence of parties’ title. Etc, therefore at the risk of repetition the court may inspect the documents for the purpose of deciding the validity of the claim of privileges.
A discovery wherein such rights to discovery depends upon the determination of any issue or question in dispute, or for any other reason it is desirable that any issue or question in dispute in a suit should be determined before deciding upon the right to discovery is called premature discovery.[5] The court is empowered to postpone a premature discovery or inspection. In such a situation the first and foremost thing to be done by the court is to determine that issue or question and later on deal with the discovery thereto. The main purpose behind this provision is to enable the court to decide an issue in a suit, as distinguished from deciding the suit itself.[6] But it is to be kept in mind that this rule does not apply where discovery is necessary for determination of such question or issue.
The effects of non compliance of inspection thereto, are mentioned under Order XI Rule 21. If a party is plaintiff, his non compliance to answer interrogatories would thereby lead to the dismissal of suit and in case, the same non compliance is done by the defendant then it would lead to him being struck off and it would restore the position as such it had not been defended. Dismissal on part of plaintiff for non compliance thereof would have effects wherein res judicata applies and the same disentitles the plaintiff to file a fresh suit on same cause of action.[7] Therefore, provisions in regard to discovery and inspection are very crucial and cases wherein non compliance is prevalent have adverse affects thereto.
References:
[1] Concise Oxford English Dictionary (2002)
[2] M.L. Sethi v. R.P. Kapoor (1972) 2 SCC 427
[3] Lajpat Rai v. Tej Bhan AIR 1957 Punj 14
[4] National Assn. of Operative Plasters v. Smithies 1906 AC 434
[5] Union of India v. Laxminarayan AIR 1953 Nag 281
[6] SSC Examination Board v. Pratibha Ganpatrao AIR 1965 Bom 28
[7] Rule 21(2)
