CODE OF CIVIL PROCEDURE, 1908

PROCEDURAL LAW Law is a term which does not have a universally accepted definition1 but one definition is that law is a system of rules and guidelines which are enforced through social institutions to govern behavior2 Laws can be basically divided into two groups: substantive law and procedural law. While the first one determines the rights and liabilities of a person, the procedural law prescribes the practice, procedure, and machinery for the enforcement of those rights and liabilities.3 The main function of substantive law is to define create or confer substantive legal rights or legal status or to impose and define nature and extent of legal duties. Whereas the main purpose of the procedural laws is to provide the machinery or the manner in which the legal rights or status and legal duties may be enforced or recognized by a court of law or other recognized or properly constituted tribunal.4 Until and unless the procedural law is simple, efficient and easy to approach , substantive law cannot achieve their goal of meting out justice in a fair , no matter how good they be in its form. Procedural law or adjective law comprises the rules by which a court hears and determines what happens in civil lawsuit, criminal or administrative proceedings. The rules are designed to ensure a fair and consistent application of due process (in the U.S.) or fundamental justice (in other common law countries) to all cases that come before a court. Procedural laws are thus accessory to substantive law. The two are two wheels of the same chariot. They are complementary to each other and hence the interaction between the two hides within itself the real identity of the two. The Code of Civil Procedure is an adjective law. It

1 2

Lord Lloyd of Hampstead, Introduction to Jurisprudence, 3 rd Edition Robertson, Crimes against Humanity, pp. 90 3 Glanville Williams, Learning the Law (1982); See Also, Law Commission of India, Fifty-Fourth Report 4 Halsburys Laws of England (4th Edition) Vol. 37, pp 18-19

neither creates nor takes away any right. It is intended to regulate the procedure to be followed by the courts of the country.5 Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or case may be commenced, what kind of service of process (if any) is required, the types of pleadings or statements of case, motions or applications,

and orders allowed in civil cases, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks must function. HISTORY OF THE CODE Although preparation for Indian Codification began in the early thirties of last century, all the Indian Codes belong to the period since the Mutiny, when we had already been a sovereign power in the country for a hundred years. The very first Code to appear was that relating to Civil Procedure, passed in 1859, and quickly followed by the Penal Code in 1860 and the Code of Criminal Procedure in 1861. The Code of Civil Procedure of 1859, which had been intermediately amended, was superseded by a new Act in 1882 and that Act is still in force, though up to the end of 1901 it had been amended by no fewer than seventeen Acts of general and seven of local application. It is also thickly encrusted with the Case-law of a vast number of decisions.6 The revision of the Code of 1882 has been under consideration since 1893. A Bill for the purpose was introduced in Council in 1901 and widely circulated for opinion. Masses of criticisms were obtained from all parts of India and were referred to a Select Committee, who submitted their Report in March 1903. Unfortunately the Report was, on a good many points, not unanimous, and much of the criticisms were not favorable. The Bill of 1901 had been withdrawn; and Honorable Mr. Richards, the Law Members in asking leave to withdraw it, said, without committing himself to any exact opinion of the criticisms, that it had been alleged 'that the Bill was too ambitious in its aims; that it sought to provide for every detail of procedure and to meet
5 6

Ghanshyam Dass v. Dominion of India, (1984) 3 SCC 46 The Code of Civil Procedure in India, Journal of the Society of Comparative Legislation , New Series, Vol. 8, No.2, (1907), 235-38

every possible contingency; that it attempted to embody the effect of an excessive number of decided cases.7 The Code of 1882 contained 680 sections, which were expanded to nearly 800 in the revised Bill of 1903. This included, in both cases, lettered sections or clauses marked A, AA, B, C, D, etc. Thus the Act of 1882 was neither shortened nor simplified. The body of the Bill of 1907 included 155 clauses only. However, the Bill to amend the Code of Civil Procedure was passed by the Legislature Council of the Governor-General of India on March 13, 1908. It did not, although, come into force till January 1, 1909, so the legal practitioners and the jurists had ample time to study each provision of the Code before it came into force.8 In the course of the placid delivery of set speeches which culminated in the unanimous adoption of the new and immensely important Civil Procedure Code there were two or three incidents sufficient to remind the observer of the varied history of the vast Empire to which the Code would be applicable, of the changes-exceedingly rapid changes if their pace be measured in terms of the duration of kingdoms and empires-which were due to the British supremacy, and of the widespread complexity of ideas and feelings, of religious and customs which made up a considerable part of the actual psychological condition of the polyglot and multitudinous races of the land.9 The body of the Code was rearranged into two parts (1) The body of the code & (2) the schedule The principle for such rearrangement was explained by the committee as such The general principle on which we have proceeded has been to keep in the body of the Bill those provisions which appear to us to be fundamental and those provisions which confer powers operating outside the province in which the court is situated10Apart from the re-arrangement of the provisions of the Code into sections and rules, the Committee did not make many changes of
7

The Code of Civil Procedure in India, Journal of the Society of Comparative Legislation , New Series, Vol. 8, No.2, (1907), 235-38 8 Sir Lewis Tupper, The Indian Code of Civil Procedure, Journal of the Society of Comparative Legislation, New Series, Vol. 9, No. 1 (1908), pp. 69-78 9 Sir Lewis Tupper, The Indian Code of Civil Procedure, Journal of the Society of Comparative Legislation, New Series, Vol. 9, No. 1 (1908), pp. 69-78 10 Report of the Special Committee, Gazette of India, 1907, Part V, pp. 179

a radical character. Its approach was justifiably conservative. The Bill, as settled by the Special Committee, was enacted as the Code of Civil Procedure, 1908, without any substantial modifications.11 EXTENT AND APPLICABILITY The Code is applicable to the whole of India except for the states of Jammu and Kashmir and the State of Nagaland and the Tribal Areas. It even has its extent in the Amindvi Islands and the East Godavari and Vishakapatnam Agencies in the State of Andhra Pradesh and the Union Territory of Lakshadeep. The amendment of 1976 made the Code applicable to the Scheduled Areas also.12 JURISDICTION The power and authority constitutionally conferred upon (or constitutionally recognized as existing in) a court or judge to pronounce the sentence of the law, or to award the remedies provided by law, upon a state of facts, proved or ad- mitted, referred to the tribunal for decision, and authorized by law to be the subject of investigation or action by that tribunal, and in favor of or against persons (or a res) who present themselves, or who are brought, before the court in some manner sanctioned by law as proper and sufficient.13 The literal meaning of the word is derived from two words juris and dicto which means I speak the law. Simply put, the jurisdiction of a court would mean the power or authority of a court to hear and determine a cause or a matter. It means the power to deal with or to entertain a particular suit and to decide after deliberating upon it. It has been laid down in various judgments and it has been upheld that jurisdiction to decide a particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass the orders sought for.14 It is well settled that for deciding the jurisdiction of a civil court, the averments made in the plaint are material. To put it differently, the jurisdiction of a court should normally be decided on the basis of the case put forward by the plaintiff in his plaint and not by defendant in his written
11 12

Law Commission of India, Twenty-Seventh Report, The Code of Civil Procedure, 1908, December 1964 Section 1, Code of Civil Procedure, 1908 13 Blacks law Dictionary 14 Official Trustee v. Sachindra Nath, AIR 1969 SC 823

statement. In the determination of the jurisdiction of the court what matters is the substance of the matter and not the form.15 Once it is decided that the court has jurisdiction to deal with the case then the veracity of the decision cannot be said to be without jurisdiction in as much as the power to decide necessarily carries with it the power to decide wrongly as well as rightly.16Lord Hobhouse had once laid down that A jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken, the decision, however wrong, cannot be disturbed17 To put it differently it can be said that if there is inherent lack of jurisdiction, the decree passed by the civil court is null and void and the nullity can be set up in any collateral proceedings.18 However if the court lacks jurisdiction but it is irregularly exercised, the defect does not go to root of the matter, and the error, if any, in exercising the jurisdiction can be remedied in appeal or revision and when there is no such remedy or is not availed of, the decision is final. Also, in the landmark case of Anisminic Ltd. v. Foreign Compensation Commission19

TYPES OF JURISDICTION (a) Civil and Criminal Jurisdiction Civil jurisdiction deals with disputes of a civil nature20 and Criminal jurisdiction on the other hand relates to crimes and punishes offenders. The District Court or Additional District court exercises jurisdiction both on original side and appellate side in civil and criminal matters arising in the District. The territorial and pecuniary jurisdiction in civil matters is usually set in concerned state enactments on the subject of civil courts. On the criminal side, jurisdiction is exclusively derived from the criminal procedure code. As per this code the maximum sentence a district court may award to a convict is capital punishment.

15 16

Moolji Jaitha and Co. v. Khandesh Spinning and Weaving Mills Co. Ltd, AIR 1950FC 83 Ujjam Bai v. State of UP, AIR 1962 SC 1621 17 See also Mallikarjun Bin Shidramappa v. Narhari Bin Shivappa 1899 37 IA 216 18 Amrit Bhikaji Kale v. Kashinath Janardhan Trade, (1983) 3 SCC 437 19 1969 2 AC 147 20 Section 9, Code of Criminal Procedure 1908

The district court has appellate jurisdiction over all subordinate courts situated in the district on both civil and criminal matters. Subordinate courts, on the civil side (in ascending order) are, Junior Civil Judge Court, Principal Junior Civil Judge Court, Senior Civil Judge Court (also called sub-court). Subordinate courts, on the criminal side (in ascending order) are, Second Class Judicial Magistrate Court, First Class Judicial Magistrate Court, Chief Judicial Magistrate Court. Certain matters on criminal side or civil side cannot be tried by a lesser court than a district court. This gives the District Court original jurisdiction in such matters. Appeals from the district courts lie to the High Court of the concerned state. (b) Territorial or Local Jurisdiction Every court has its own local or territorial limits beyond which it cannot exercise its jurisdiction. These limits are fixed by the Government. The district judge has to exercise jurisdiction within its district and not outside it. The high court has jurisdiction over the territory of a State within which it is located and not beyond it. A court does not possess jurisdiction to try suits which involves the properties, immovable, outside the territorial jurisdiction of the court. (c) Pecuniary Jurisdiction It divides the jurisdiction of the courts on a vertical basis. According to Section 6 of the Code, the courts have jurisdiction over matters, apart from the territorial jurisdiction, which do not go beyond the pecuniary jurisdiction of the courts. The High Courts and District Courts have no limit to entertain cases. But while these courts are invested with no limits, other Small Causes Courts have a limit to entertain cases whose amount claimed does not exceed Rs. 1000. (d) Subject Matter Jurisdiction Different courts are invested with the power to look into matters relating to different types of subjects. For example Presidency Small Causes courts have no jurisdiction to try cases which are related to Specific Performance of contracts or partition of immovable property. Also to note is the difference between the jurisdictions of a Sessions Court and a Civil Court, the former being able to deal with only crime and other related matters and the latter being able to deal with property suits, or any other kind of non-crime matters.

(e) Original and Appellate Jurisdiction The former is conferred upon the court in the very first instance. In the exercise of the jurisdiction so mentioned the court of first instance would decide suits, petitions and applications. The latter is conferred upon a higher court in order to review, revise or overturn the judgments pronounced by a smaller court. This involves deliberations on suits which have already been contemplated upon in the small courts. (f) Exclusive and Concurrent Jurisdiction Exclusive jurisdiction is the one which confers upon the court a special power to deal with a particular type of case. This type of power is vested in only one court. For Example only the Supreme Court has the jurisdiction to entertain cases related to issuance of writs21 or to deal with Inter-State Matters22 or to deal with matters which involve State and the Union Government against each other.23 DETERMINATION OF JURISDICTION The civil courts have inherent power to decide its own jurisdiction.24In dealing with the question of whether a civil court has the jurisdiction to deal with cases or it is barred from doing so a presumption has to made in favour of the civil court. The jurisdiction is not excluded unless it is expressly stated in the statute being dealt with or there is an inevitable inference being drawn from the nature of the suit.25 The party seeking to disapprove the jurisdiction or seeking to oust the same has the burden of proof of doing so. It is very much well established that a statute which is outside the jurisdiction of the civil court has to be construed in the strictest sense.26 A litigant has the freedom to file a suit in the civil court unless the jurisdiction is expressly barred and such exclusion must be

21 22

Article 32, Constitution of India, 1950 Article 131(b), Constitution of India, 1950 23 Ibid 24 Bhatia Cooperative Housing Society Ltd. v. D.C Patel, AIR 1953 SC 16 25 Magiti Sasamal v. Pandab Bissoi, AIR 1962 SC 547; See also Dhulabhai v State of Madhya Pradesh, AIR 1969 SC 78; State of West Bengal v. Indian Iron and Steel Co. Ltd., (1970) 2 SCC 39 26 Abdul Waheed Khan v. Bhawani, AIR 1966 SC 1718; See also Mahant Dooj Das v. Udasin Panchayati Bara Akhara, (2008) 12 SCC 181

clear.27 But here, again when the jurisdiction is expressly barred then the court still has the jurisdiction to examine whether the provisions of the law have been complied with or the rules made there under have or have not been complied with or order passed is contrary to law, malafide, ultra vires or arbitrary or violative of the principles of natural justice.28

FINDINGS, INSPECTION AND PRODUCTION OF DOCUMENTS Post the submission of the plaint by the plaintiff and the written statement by the defendant in the court, it may appear either to the former or to the latter that the nature of his opponents case is not sufficiently disclosed in his pleadings. The party claiming so is entitled to know all the a material facts constituting the case of the opposite party and all documents in his possession or power relevant to the issue in the suit with a view to maintain his case or to meet with, impeach or destroy the case of his adversary at the meeting. This does not however mean that the party to a suit has a right to know beforehand the evidence of his opponent for if it were allowed there would be high chances of the litigant destroying it for the sake of ensuring a win in the court. Every suit involves two sets of facts. Firstly it takes into account facta probanda and secondly it includes facta probantia. The first one means that the facts which constitute a partys case and the second one means by which the said case is proved. The first discloses the nature of the partys case and the second set forms the evidence of the case. Thus a party is entitled to get hold of only the first set of facts before hand. The following provisions are made in the Code in relation to such disclosure of facts or other documents. Discovery and inspection are covered under Order 11, admissions under Order 12, Production, impounding and return of documents under Order 13 and affidavits under Order 14. Discovery In a general sense, the ascertainment of that which was previously unknown; the disclosure or coming to light of what was previously hidden; the acquisition of notice or knowledge of given

27 28

Supra 18, see Dhulabhai case Anisminic Ltd. v Foreign Conpensation Commission, (1969) 2 AC 147

acts or facts29 Discovery could also mean to compel the opposite party to disclose what he has in his 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.30 After the settlement of issues, a party to a suit may require information from his adversary as to facts or as to documents in possession or power of such party, relevant to the issue in the suit. Where information as to facts is required, the party is allowed to put a series of questions to his adversary. These questions are called interrogatories. The judge will go through the proposed questions and, if he considers them proper, he will compel the other side to answer them on oath before trial. This is called discovery of facts. On the other hand, if information as to documents is required, the party may apply for an order compelling the other party to submit a list of the relevant documents in his possession or power, and in certain circumstances, for permission to inspect and take copies of those documents. This is known as discovery of documents. Interrogatories: Rules 1-11 The concept of interrogatories is covered from rule 1 to rule 11 under Order 11 of the Code of 1908. The rules have been given below; Basically the term carries the under stated meaning, A set or series of written questions drawn up for the purpose of being propounded to a party in equity, a garnishee, or a witness whose testimony is taken on deposition; a series of formal written questions used in the judicial examination of a party or a witness.31 The main purpose of such concept is to serve two fold purpose. (a) to know the nature of the case of the opponent; and (b) to support ones own case, either directly by obtaining admissions or indirectly by impeaching or destructing the case of his opponent.32 Putting it in other words, the primary object is to narrow the points in issue, to save expense by enabling a party to obtain from his opponents information as to material facts and to het his admissions on any matter in
29 30

Blacks Law Dictionary, Concise Oxfor Dictionary (2002), pp. 409 31 Blacks law Dictionary 32 Bhakta Charan Malik v. Nataorar Mallik, AIR 1991 Ori 319; See also, Thakur Prasad v. Mohd. Sohayal, AIR 1977 Pat 233

question in the suit which otherwise would have to be proved by evidence. The power to allow the interrogatories should be exercised liberally without being restricted by technicalities. 33 Now there arise two questions at this juncture, as to who can administer interrogatories and against whom can it be allowed to be administered? Answering the first question it shall be said that one party to a suit can administer to the other party. Thus, a plaintiff could administer it to a defendant and vice versa being also allowed. However under exceptional conditions a plaintiff may administer interrogatories to a co-plaintiff or a defendant may administer interrogatories to a co-defendant.34 Answering the second question it may be said that interrogatories are delivered to a party to a suit. Hence, they may be allowed against plaintiff or defendant. However, there stands a possibility that a person may not be arrayed as a party to a suit, but in substance and in reality, he may be a party. For example in a suit by an agent, a principal is really the plaintiff. An order of interrogatories, hence, may be obtained against him.35 Regarding the form of such interrogatories the forms have prescribed in the Code itself. It should be in accordance with Form Nos. 1and 2 under Appendix C with necessary variations and modifications as the circumstances may require. However, an affidavit should be according to Form 3 of Appendix C.36 Objections could be raised to interrogatory by the party answering it if it is scandalous, irrelevant, mala fide, immaterial, privileged.37 There are a few rules which are to be followed with respect to interrogatories Interrogatories may be administered in writing with the leave of the court and subject to such conditions and limitations as may be prescribed by it.38 The particulars of interrogatories proposed to be delivered should be submitted to the court, which shall be decided by the court within seven days from filing of the application.39

33 34

Raj Narain v. Indira Nehru Gandhi, (1972) 3 SCC 850 Shaw v. Smith, (1886) 18 QB 193 (CA) 35 Attorney General v. Gaskill, (1882) 2 Ch D 519 36 Rule 4 & 9, Order 11, Code of Civil Procedure, 1908 37 Rule 6, Order 11, Code of Civil Procedure, 1908 38 Section 30, Order 11, Rule 1 39 Rule 2, See also Prem Sukh v. Indro Nath, ILR (1891) 18 Cal 420 (FB)

Interrogatories may be administered either by the plaintiff to the defendant or by the defendant to the plaintiff.40 Interrogatories may also be administered by one plaintiff to another plaintiff or by one defendant to another defendant, provided there is some question or issue between them in the suit, action or proceeding.41

No party can deliver more than one set of interrogatories to the same party without an order by the court.42In exceptional cases, a court may allow more than one set of interrogatories to one and the same party.43

Generally, no leave can be granted to the plaintiff for administering interrogatories until the written statement is filed by the defendant or the time to file the written statement has expired. Similarly, no such leave can be granted to the defendant until he files the written statement.44

Where a party to a suit is a corporation or a body of persons empowered to sue or be sued, interrogatories may be administered to an officer or member of such corporation or body. 45

Where a party to a suit is a minor or a lunatic, interrogatories may be administered to his next friend or guardian ad litem.46 Interrogatories and an affidavit in answer to interrogatories should be delivered in the prescribed form.47 Interrogatories shall be answered by affidavit to be filed within ten days after the service of the interrogatories or within such period as the court may allow.48 Interrogatories must relate to or have reasonable nexus with any matter in question in the suit.49 Interrogatories must be as to question of fact and not as to conclusions of law, inferences of facts or construction of documents.50

40 41

Rule 1, Code of Civil Procedure, 1908 Ibid, 42 Ibid 43 Ibid 44 Union Bank of London v. Manby, (1879) 13 Ch D 162 (CA) 45 Rule 5, Code of Civil Procedure, 1908 46 Rule 23, Code of Civil Procedure, 1908 47 Rules 4, 8, 9, 10, Code of Civil Procedure, 1908 48 Rule 8, Code of Civil Procedure, 1908 49 Rules 6, 7, Code of Civil Procedure, 1908

Interrogatories which do not relate to any matter in question in the suit should be deemed to be irrelevant.51 Interrogatories cannot be allowed at a premature stage52 Interrogatories may be objected inter alia on the ground that they are vexatious, scandalous, irrelevant, unreasonable, not bona fide to the questions raised in the suit, injurious to public interest, "fishing" in nature, etc. 53

Interrogatories may be set aside on the ground that they have been administered unreasonably or vexatiously, or struck off on the ground that they are prolix, oppressive, unnecessary or scandalous. 54

Generally, the costs of the interrogatories shall be borne by the party administering the interrogatories. But the court may direct the party at fault to pay the costs of the interrogatories irrespective of the result of the suit.55

Any party may, at the trial of the suit, use in evidence anyone or more of the answers or any part of an answer of the opposite party to interrogatories.56 Where any person fails to comply with an order to answer interrogatories, his suit can be dismissed if he is a plaintiff, or his defense can be struck off if he is a defendant.57

Interrogatories may not be allowed in the following circumstances: Interrogatories for obtaining discovery of facts which constitute exclusively the evidence of the case of his adversary. "The purpose of interrogatories is not to enable a litigant to come into court knowing how his opponent is going to prove his case. 58 Thus, where in a suit for damages, the defendant wanted the plaintiff to state as to how he estimated the damages to the amount of Rs 13,000 mentioned in the plaint, it was held that the plaintiff was not bound to answer it.

50

Nittomoye Dassee v. Soobul Chunder Law, ILR (1895) 23 Cal 117; See also Model Farm Dairies (Bournemouth) Ltd. v. Newman, 1943 KB 5 51 Rules 6,7, Code of Civil Procedure, 1908 52 Rule 20, Code of Civil Procedure, 1908 53 Rules 6,7, Code of Civil Procedure, 1908 54 Rules 6,7, Code of Civil Procedure, 1908 55 Rule 3, Code of Civil Procedure, 1908 56 Rule 22, Code of Civil Procedure, 1908 57 Rule 11, Code of Civil Procedure, 1908 58 Knapp v. Harvey, (1911) 2 KB 725 (CA); See Also, ML Sethi v R.P Kapur, (1972) 2 SCC 427

Interrogatories as to any confidential and privileged communications between a party and his legal advisers.59 Interrogatories which would involve disclosures injurious to public interest. Interrogatories which are scandalous, irrelevant or not bona fide for the purpose of the suit or not sufficiently material at that stage.60 Interrogatories which are really in the nature of cross-examination.61 Interrogatories on questions of law. Interrogatories which are "fishing" in nature. In other words, the interrogatories must refer to some definite and existing state of circumstances and should not be put merely in the hope of discovering something which may help the party interrogating to make out some case or with the object of plugging a loophole.62

Any interrogatories may be set aside on the ground that they have been administered unreasonably or vexatiously, or struck off on the ground that they are prolix, oppressive, unnecessary or scandalous.63

Discovery of Documents Discovery is of two kinds, namely: (i) discovery by interrogatories; and (ii) discovery of documents. 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 opposite 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 Rule 12, therefore, enables a party without filing an affidavit

59 60

Sections 121-129, Indian Evidence Act, 1872 Raj Narain v. Indiri Nehru Gandhi, (1972) 3 SCC 850 61 Ibid 62 Ali Kader v. Gobind Dass, ILR (1890) 17 Cal 840 63 Rule 7, Code of Civil Procedure, 1908

to apply to the court for the purpose of compelling his opponent to disclose the documents in the possession or power, relating to any matter in question in the suit.64 If the court makes an order for discovery, 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. An affidavit of documents shall set forth all the documents which are, or 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.65 After he has disclosed the documents by affidavit, he may be required to produce for inspection such of the documents as he is in possession of and as are relevant. The documents sought to be discovered need not be admissible in evidence in the enquiry or proceedings. It is sufficient if the documents would be relevant for the purpose of throwing light on the matter in controversy. Every document which will throw any light the case is a document relating to a matter in dispute in the proceedings, though it might not be admissible in evidence. In other words, a document might be inadmissible in evidence yet it may contain information which may either directly or indirectly enable the party seeking discovery either to advance his case or damage the adversary's case or which may lead to a trial of enquiry which may have either of these two consequences. But if the documents are irrelevant or immaterial to the question in controversy or the prayer is made with a view to delay the proceedings, the application will be rejected. 66 The word "document" in this context includes anything that is written or printed, no matter what the material may be, upon which the writing or printing is inserted or imprinted.67 The object of this procedure is twofold: (i) firstly, to secure, as far as possible, the disclosure on oath of all material documents in possession or power of the opposite party under the sanction of penalties attached to false oath; and (ii) secondly, to put an end to what might otherwise lead to a protracted enquiry as to the material documents actually in possession or power of the opposite

64 65

ML Sethi v. RL Kapur, (1972) 2 SCC 427 Ibid 66 Central Bank of India v. Shivam Udyog, (1995) 2 SCC 74 67 Supra note 64

party.68 Thus, this procedure elicits admissions, obviates necessity of leading lengthy evidence, expedites trial of suits and thereby assists courts in administration of justice.69 Discovery may be objected on the ground that it is not necessary or not necessary at that stage of the suit.70 An objection or reason against discovery should be taken clearly and expressly in the affidavit. It is not enough to state that the documents are privileged. It must also be stated how they are privileged so as to enable the court to decide the claim.71 Discovery may be ordered for a document which is relevant and which may have some bearing on the matter in issue. Such document needs to be admissible in evidence. Documents constituting evidence of the party cannot be ordered to be produced. The provision relating to discovery cannot be utilized by the party "to come into court knowing how his opponent is going to prove his case".72 Discovery may also be resisted on the ground that it is "unduly oppressive" to the party giving discovery. In dealing with the question, the court will bear in mind two conflicting considerations; (i) Importance of discovery to the person seeking it; and (ii) Burden imposed on the opposite party giving discovery. Whether the discovery is oppressive or not is a question of fact and depends upon the circumstances of each case. Inspection of Documents Rules 15 to 19 deal with inspection of documents. For the purpose of inspection, documents may be divided into two classes: (i) Documents referred to in the pleadings or affidavits of parties; and (ii) Other documents in the possession or power of the party but not referred to in the pleadings of the parties. As regards the first class of documents, a party to a suit is entitled to inspection. And without intervention of the court every party may give notice in the prescribed form to the other party in whose pleadings they are referred to, to produce such documents for his inspection. The party to whom such notice is given should, within ten days from the receipt of such notice, give notice to the party claiming such inspection, stating the time and place at which
68 69

Rameshwar Narayan v. Rikhanath Koeri, AIR 1920 Pat 131; See also, Lajpat Rai v. Tej Bhan, AIR 1957 Punj 14 United Bank of India Ktd. v. Nederlandsche Standard Bank, AIR 1962 Cal 325 70 Proviso Clause Rule 12 71 National Association of Operative Plasters v Smithies, 1906 AC 434 72 Central India Spinning, Weaving and Manufacturing Co. Ltd. v. GIP Railway Co., AIR 1927 Bom 367

the documents may be inspected and stating his objections, if any, to the production of any of the documents. If he fails to do so, the court may make an order of inspection. The primary object of Rules 15 to 19 of Order 11 is to place the opposite party in the same position as if the documents had been fully set out in his pleading or in the affidavit.73 The following classes of documents have been recognized as privileged documents and they are, therefore, protected from production: (i) Documents which "of themselves evidence exclusively the party's own case or title". (ii) Confidential communications between a client and his legal adviser.74 (iii) Public official records relating to affairs of the State and confidential official communications, if their production would be injurious to public interest.75 It may, however, be noted that where, in an application for an order for inspection, privilege is claimed for any document, the court may inspect the document for the purpose of deciding the validity of the claim of privilege, unless the document relates to matters of State.76 Admissions Section 58 of the Evidence Act declares that the facts admitted need not be proved. Admissions may be made before the suit or after the filling of the suit. The object of obtaining admissions is to do away with the necessity of proving facts that are admitted; and the judgment and decree may be passed on such admissions.77 As it has been said, "What a party himself admits to be true may reasonably be presumed to be so."78 The adoption of the procedure laid down in Order 12 (Admissions by Notice) results in saving the costs of such proof and in cheapening and shortening litigation. 79 A person unreasonably neglecting or refusing to admit a document may be ordered to pay penal costs to the other side.80

73 74

Halsburys Laws of England, (4th Edition) Vol. 13, pp. 47 Sections 126, 129, Indian Evidence Act, 1872 75 State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493 76 Sections 123, 124, Indian Evidence Act, 1872 77 Malwa Strips Pvt. Ltd. v. Jyoti Ltd., (2009) 2 SCC 426 78 Slatterie v. Pooley, (1840) 6 M&W 664 79 Karam Kapahi v. Lal Chand Public Charitable Trust, (2010) 4 SCC 753 80 Rule 2-A(2), Code of Civil Procedure, 1908

The court may also call upon any party, on its own motion suo motu, to admit any document at any stage of the proceedings.81 Admission of documents means admission of facts contained in the documents. But if any document is admitted only for a limited purpose, as, for instance, for dispensing with formal proof of it, it cannot be said that the party thereby accepts the facts stated in the document.82 Notice to admit facts: Rules 4-5 Rules 4 and 5 provide for notice to admit facts. Any party may, by notice in writing, at any time not later than nine days before the day fixed for the hearing, call upon any other party to admit, for the purpose of the suit only, any specific fact or facts, mentioned in such notice. The costs of proving such fact or facts shall be paid by the party refusing or neglecting to admit the same within six days after service of such notice, whatever may be the result of the suit, unless the court otherwise directs. Such admission, however, should be accepted or rejected as a whole and it is not permissible to rely on one part, ignoring the other. 83 Likewise, if admission is made subject to a condition, it must be accepted only with that condition.84 Production, Return and Impounding of Documents: Order 13 The plaintiff must produce in court with the plaint the documents on which he is suing the defendant. He must deliver a list of documents In support of his claim. A summons to a defendant should contain a direction asking him to produce all the documents in his possession or power upon which he intends to rely in support of his claim. Order 13 deals with production, admission, impounding, rejecting and return of documents. Rule 1 of Order 13 requires the parties or their pleaders to produce the documentary evidence on or before the settlement of issues. The object underlying this provision is to secure a fair trial of cases, obviate the chances for the parties to adduce forged or manufactured evidence and

81 82

Sitaram v. Santanuprasad, AIR 1966 SC 1697 DAV College v. Padmanabha Radhy, (1988) 1 SCC 653 83 Ibid 84 MM Essabhoy v. Mulji Haridas, AIR 1915 PC 2

produce their documents before the court at the earliest opportunity.85 It also seeks to prevent belated production of documents which may cause prejudice to the other side.86 As stated above, the plaintiff must produce in court with the plaint the documents on which he sues and upon which he relies in support of his claim. Similarly, the summons should also contain an order to the defendant to produce all the documents upon which he intends to rely in support of his claim. Rule 1(1) of Order 1 directs the parties or their pleaders to produce all documentary evidence in original, on or before settlement of issues. Rule 1(2) requires the court to receive those documents. The object of the rule, however, was not to penalize the parties but merely to prevent belated production of documents so that it might not work injustice to the other side. The power, therefore, clearly clothed the court with discretion to allow production of documents if it was satisfied that good cause was shown.87 The explanation of delay was not as rigorous as one required under Section 5 of the Limitation Act. Where the documents were not in the possession of the party and they were produced after obtaining certified copies from Revenue Authorities, refusal of production was held to be unjustified.88 The court has power to receive any document at a later stage if the genuineness of a document is beyond doubt and it is relevant or material to decide the real issue in controversy. 89 No documents whether public or private which are above suspicion should be excluded if they are necessary for the just decision of a case.90 The discretion must be exercised judicially and considering the facts and circumstances of each case. The rule must be liberally construed so as to advance the cause of justice.91 Rule 4 provides that on every document admitted in evidence in the suit, the following particulars shall be endorsed (a) the number and title of the suit; (b) the name of the person producing the document; (c) the date on which it was produced; and (d) a statement of its having been so admitted. The endorsement should be signed by the judge.
85 86

Order 7 Rule 14, Code of Civil Procedure, 1908 Order 5 Rule 7, Code of Civil Procedure, 1908 87 Madan Gopal v. Mamraj Maniram, (1977) 1 SCC 669 88 Billa Jagan Mohan v. Billa Sanjeeva, (1994) 4 SCC 659 89 Ibid 90 Gopika Raman Roy v. Atal Singh (1928) 56 IA 119 91 Supra note 88

Where a document admitted in evidence in the suit is an entry in a letter-book or a shop-book or other account in current use or an entry In a public record produced from a public office or by a public officer, or an entry in a book or account belonging to a third party, a copy of the entry may be furnish. The documents admitted in evidence shall form part of the record of the suit.92 Documents not admitted in evidence shall be returned to the person producing them.93 Rule 9 provides for return of a document to a party producing it after the disposal of the suit or appeal or even during the pendency of the suit provided that the necessary undertaking to produce the original in case it is required is filed, though ordinarily it is not allowed without notice to the other side and without producing certified copy of such document. Rejection of documents: Rules 3, 6 The court may, after recording reasons, reject, at any stage of the suit, any document which it considers irrelevant or inadmissible.94 The endorsement on the rejected document should show the particulars mentioned in clauses (a) to (c) of Rule 4(1) above together with the statement of its having been rejected. The said endorsement shall be signed by the judge. 95 The document, thereafter, shall be returned to the person producing it.96 Impounding of documents: Rule 8 Rule 8 enables a court to impound a document. It states that the court may for sufficient cause direct any document, book or exhibit produced before it in any suit to be impounded and kept in the custody of an officer of the court for such period and subject to such conditions as it thinks fit.97 Whereas Rule 7 provides for return of documents not admitted in evidence Rule 8 deals with documents admitted in evidence. This power may be exercised by the court in case of forgery or apprehension that the document may be destroyed or altered.

92 93

Rule 7(1), Code of Civil Procedure, 1908 Rule 7, Code of Civil Procedure, 1908 94 Rule 3, Code of Civil Procedure, 1908 95 Rule 6, Code of Civil Procedure, 1908 96 Rule 7(2), Code of Civil Procedure, 1908 97 Rules 8, 11, Code of Civil Procedure, 1908