Discovery And Inspection Of Documents – Crucial Procedural Steps In Law

INTRODUCTION

Discovery of documents by one party in a suit from another is not a right under law but a crucial procedural step available to the parties in dispute – one that can potentially determine its fate. This procedure is available to the parties as an enabler when the party, is, otherwise, unable to show the truth of a fact in controversy since the required information / document is in the power or possession of the other. This law of discovery (and inspection too) enables the parties in dispute to seek production of documents from the other party to bring before the court such material that relate to the matter in controversy so that the matter can be properly considered and adjudicated.

One may even consider this important aspect of procedural law as an opportunity for a party to sustain its own case or, for that matter, reveal the baselessness of the adversary’s case. On the most part, this procedure, if efficaciously used, also yields expeditious disposal of the matter, by enabling an admission and avoiding the need for long-drawn evidence.

Since this procedure is not a right under law, on an application of a party for discovery, it is for the court to determine whether the documents sought are necessary to throw light on the matter before it. On determining so, the court may require the other party to disclose such documents not in possession of the applicant.

On the court so directing or in response to the application itself, the party against whom discovery of documents is sought, may by way of an affidavit, produce the documents sought or object to its production stating grounds as the circumstances require.

That being said, an inherent evil in this procedure (one that can be attributed primarily to the instinctive need to further one’s own case) is termed, in legal parlance, as fishing and roving expeditions. This is when a party through broad discovery requests or random questions, attempts to elicit information from another party in the hope that something relevant might be found. Such an attempt exceeds the scope of discovery allowed by procedural laws.

It has also been, held by Indian courts that a party cannot be compelled to produce documents (or to give inspection of documents) for enabling the applicant to understand the genuineness of purport of the documents relied upon by the defendants.¹

Discovery of Documents

Order XI Rule 12-14 of the Civil Procedure Code, 1908 (“CPC”) provides for discovery of documents, whereby any party to the suit can apply for discovery of documents. In purely procedural terms, the principal object of discovery is to identify the documents, from pleadings or statements made before the court, which are in the hands of the opposite party which may support the case of the applicant.

Production of document can be resisted / objected on several grounds, including documents sought not being in his power or possession, being irrelevant, confidential, on grounds of privilege or that no responsive documents exist, among other things.

However, 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.²

Inspection of Documents

While discovery of documents is not a right, Order XI Rule 15 entitles parties in a suit to (at or before settlement of issues) to give notice to the other party, to produce any document reference of which has been made or on which reliance has been placed in its pleadings, documents, or affidavits.³

Importantly, in respect of inspection of documents too, any party not complying with such notice is afterwards not at liberty to put any such document in evidence without satisfying court as to why it was not able to comply with such notice.⁴

Failure to Produce Documents

Non-compliance with an order under Order XI either for production for documents or inspection (especially when the party has been called upon to produce documents, they themselves rely upon and have in their control), will likely lead the court to draw an unfavrouable / detrimental conclusion (termed as adverse inference in legal parlance) from the party’s failure to produce such evidence, especially when no reason is shown as to why the documents could not be produced.

This presumption in law finds its basis not only in the jurisprudence on this subject, but also in section 114 (g) of the Indian Evidence Act, 1872 which prescribes that the court may presume - “evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it.”

A more stringent effect of non-compliance of orders for discovery or inspection is dismissal of plaintiff’s suit or striking out of the defendant’s defence.⁵ However, courts apply extreme caution while passing such an order (under Order XI Rule 21 of CPC), since such a consequences are highly penal in nature and should in no way be imposed unless there is a clear failure to comply with the obligations laid down in the Rule.⁶

The test here is whether the default was wilful. It is only if the court is satisfied that the party was wilfully withholding information by refusing to answer interrogatories or by withholding the documents, that the party must face the consequences of having his plaint dismissed due to his wilful default i.e. by suppression of information which he was bound to give.⁷

CONCLUSION

While discovery and inspection of documents is not a mandatory stage in a suit, the process of disclosure in discovery and inspection is conducive to fair and expeditious determination of disputes. Many suits brought before the courts are compromised due to the failure on part of parties to make good use of this procedure.

Discovery and Inspection serve an important purpose of enabling parties to assess strengths and weaknesses of their respective cases and to seek disclosure of information relating to the suit that is in the control of the other side and necessary for proper and just determination of disputes. It is often overlooked that an application for seeking discovery / inspection of documents may bring before the parties, and ultimately the court, a more complete body of relevant material as a foundation for the resolution of the dispute. It can also assist the court in the framing of issues as well as the parties to understand the scope of inquiry going into the evidence stage. Importantly, the discovery and inspection of documents prior to the stage of evidence, helps in conducting a fair, just, and equitable trial.

Disclaimer: This article was first published in the S&A Law Offices - 'Indian Legal Impetus' newsletter in May 2024.