Code of Civil Procedure Rough Draft

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CHANAKYA NATIONAL LAW UNIVERSITY

Rough - Draft
DISCOVERY AND INSPECTION OF DOCUMENTS
[RESEARCH WORK TOPIC]
SUBMITTED TOWARDS THE FULFILLMENT OF THE COURSE TITLED:-
CODE OF CIVIL PROCEDURE
SUBMITTED TO: - Meeta Mohini, Visiting Faculty of Law {Code of Civil Procedure}
SUBMITTED BY:-SANU RANJAN
ROLL NO:-1559
COURSE:-B.A.L.L.B,
SEMESTER:- 5th
SESSION:-2016-21
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INTRODUCTION
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. 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.1 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.2
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,
1
M.L. Sethi v. R.P. Kapoor, (1972) 2 SCC 427
2
Lajpat Rai v. Tej Bhan, AIR 1957 Punj 14
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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.3 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.4 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.5 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
3
National Assn. of Operative Plasters v. Smithies, 1906 AC 434
4
Union of India v. Laxminarayan, AIR 1953 Nag 281
5
SSC Examination Board v. Pratibha Ganpatrao, AIR 1965 Bom 28
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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.6 Therefore, provisions in regard to discovery and inspection are very crucial
and cases wherein non-compliance is prevalent have adverse effects thereto.
OBJECTIVES OF THE RESEARCH WORK:-
1. The Research work aims to study the legal provision related to production & search of
documents.
2. The Research work objects to critically study the judicial decision with respect to the
Production & Search of Documents.
HYPOTHESIS:-
1. The researcher assumes that the Judiciary has played a very active role in
interpretation of Discovery and Production of Documents.
2. The researcher further assumes that with a view to make a trial, fair trial and to
uphold the principles of Natural Justice Inspection and Discovery of Documents.
3. The researcher further assumes that there must be reasonable restrictions in relation to
discovery and production of documents.
TENTATIVE-CHAPTERISATION:-
1. Introduction
2. Discovery & Inspection: Meaning & Scope
3. Restriction on “Discovery & Inspection”
4. Judicial Decision:- A Brief Study
5. Conclusion & Suggestion
6
Rule 21(2)

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CHANAKYA NATIONAL LAW UNIVERSITY

[RESEARCH WORK TOPIC]

SUBMITTED TOWARDS THE FULFILLMENT OF THE COURSE TITLED:-

CODE OF CIVIL PROCEDURE

SUBMITTED BY:-SANU RANJAN

OBJECTIVES OF THE RESEARCH WORK:-

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