Production of Documents

8/18/2019 Production of Documents

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Supreme Court Judgments & case laws in India → Judgments on Civil cases → Rajesh Bhatia vsG !arimala " #isposal o$ Civil Cases

Order !" #ule$% It shall %e law$ul $or the Court at an' time during the pendenc' o$ an' suit

to order the production %' an' part' thereto upon oath o$ such o$ the documents in his

possession or power relating to an' matter in (uestion in such suit as the Court shall thin) right*and the Court ma' deal with such documents when produced in such manner as shall appear

just+his provisions speci$icall' empowers the Court at an' time during the pendence' o$ the suit

to order the production %' an' part' thereto upon oath o$ such o$ the documents in his possession or power relating to an' matter in (uestion in such suit +o )now more a%out this

provision it is suggested to go through the $ollowing ruling

#a'esh (hatia vs )* +arimala

,(uivalent citations- .//0 123 A4# 567 .//0 123 A4+ 6.8 " Bench- + C Rao

Order

+ Ch Sur'a Rao J

6 Inasmuch as %oth these revision petitions emanate $rom a common order dated ./"6.".//5

passed %' the learned 9III Additional Senior Civil Judge 1:ast +rac) Court3 Cit' Civil Court;'dera%ad in IA


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o$ %an) guarantee ta)en %' the $irst de$endant Duestioning the highhanded act o$ %oth the

de$endants the plainti$$s $iled the suit $or realiEation o$ the amounts covered %' the $i@ed

deposits

2 +he case o$ the $irst de$endant was that the $irst plainti$$ on whom the $irst de$endant reposed

con$idence misappropriated certain $unds %' committing $raud in the $irst de$endantFs $irm +heamount thus misappropriated was invested under various $i@ed deposit receipts +here$ore the

plainti$$ had no locus stand to claim the amounts covered %' the said $i@ed deposit receipts

5 #uring the course o$ trial in the suit the plainti$$ $iled IA It is appropriate at the outset to consider the provisions o$ the Code in the $irst instance +he

su%stantial provision which is relevant in the conte@t is Section 2/ o$ the Code It authoriEes theCourt to ma)e such orders as ma' %e necessar' or reasona%le either o$ its own motion or on the


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application $iled %' the part' $or deliver' and answering o$ interrogatories* the admission o$

documents and $acts* and discover' inspection production impounding and return o$ documents

or other material o%jects produci%le as evidence Such orders however are su%ject to theconditions and limitations that ma' %e prescri%ed in Schedule appended to the Code +he Section

$urther authoriEes the Court to issue summonses to persons whose attendance is re(uired either to

give evidence or to produce documents and $or that purpose the provisions in Sections .? .> and.8 shall appl' Under Section 2. penal conse(uences are envisaged +he Court ma' there$ore

compel attendance o$ an' person to whom a summons has %een issued under Clause 1%3 o$

Section 2/ either %' issuing a warrant $or his arrest or %' directing attachment and sale o$ his propert' or %' imposing a $ine not e@ceeding Rs 7//H" or %' ordering him to $urnish securit' $or

his appearance and in de$ault commit him to the civil prison +he mandate contained in Section

2/ is $urther elucidated in the Rules prescri%ed under various =rders =rder 66 deal with

discover' and inspection* =rder 6. deals with admission o$ documents and $acts* =rder 62 dealswith production impounding and return o$ documents* and =rder 60 deals with summoning and

attendance o$ witnesses either to give evidence or to produce documents and give evidence In

the instant case we are not concerned with the other =rders e@cept =rder 66

8 It is e@pedient to understand the ver' scheme and o%ject o$ the Code in having incorporated

=rder 66 which will elucidate the provision A$ter the plaint has %een presented %' the plainti$$

and the written statement %' the de$endant in Court it ma' appear either to the plainti$$ or to the

de$endant that the nature o$ his opponentFs case is not su$$icientl' disclosed in his pleadings ;eis entitled to )now %e$orehand all material $acts constituting the case o$ opposite part' and all

documents in his possession or power relevant to the issue in the suit with a view o$ prove

maintain or support his case or to understand meet with impeach or destro' the case o$ hisadversar' at the hearing

6/ here in$ormation sought is as to $acts the part' is allowed to administer to his adversar' a

series o$ (uestions which are called interrogatories +he judge will go through the proposed(uestion to decided whether the' are proper and relevant and whether other side should %ecompelled to answer them on oath %e$ore the trial In legal terminolog' it is called discover' o$

$acts +he o%ject o$ documents material to the issues in the suit $rom his adversar' the Court

ma' compel the other part' to su%mit a list o$ documents and permit the part' appl'ing toinspect and also to ta)e copies o$ those documents %e$ore the trial Such disclosure is )nown as

discover' o$ documents Such discover' o$ $acts and discover' o$ documents will narrow down

the controvers' avoid unnecessar' e@penses and shorten the litigation

66 Rules 6 to 66 o$ =rder 66 deal with discover' o$ $acts whereas Rules 6. to ./ deal withdiscover' production and inspection o$ documents in other words discover' o$ documents Rule

.6 la's down conse(uences o$ non"compliance with order o$ discover' Rule .. allows answers

in interrogatories to %e used in evidence %' a part' Rule .2 deals with the application o$ theorder to the minor children and the de$endant +hus $rom the scheme o$ the Code and the

arrangement o$ various Rules in the domain o$ the =rder 66 under the caption discover' and

inspection the provisions deal with two aspects mainl' viE discover' %' interrogatories and

discover' %' documents


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6. In the instant case we are concerned with discover' o$ documents Rules 6. to ./ deal with

the same Rules 6. reads that an' part' ma' appl' to the Court $or an order directing an' other

part' to the suit to ma)e discover' on oath o$ the documents which are or have %een in his possession and power relating to an' matter in (uestion involved in the suit =n such application

%eing $iled the Court ma' ma)e an order in its discretion either re$using to allow the application

or directing the opposite part' to ma)e discover' In the event such an order is passed %' theCourt e@ercising its discretion the part' re(uired to ma)e discover' should $ile an a$$idavit as

per Rule 62 Rule 65 which is germane in the conte@t reads as under-

65 !roduction o$ documents" it shall %e law$ul $or the Court at an' time during the pendenc' o$

an' suit to order the production %' an' part' thereto upon oath o$ such o$ the documents in his possession or power relating to an' matter in (uestion in such suit as the Court shall thin) right*

and the Court ma' deal with such documents when produced in such manner as shall appear

just

62 +his provision reads that the Court has got ample discretion to direct the part' at an' stage o$

the suit to produce upon oath such o$ the documents in his possession or power pertaining to thematter in (uestion and when the documents are thus produced the Court ma' deal with them in

such manner as it shall appear just

65 Rule 67 deals with the inspection o$ the document re$erred to in pleadings or a$$idavits Rule60 however contemplates a notice to %e issued to the part' $or production o$ the documents

re$erred to in his pleading or a$$idavit Rule 6? however deals with the time $or inspection when

notice is given here the part' omits to produce the documents who has earlier %een servedwith notice under Rule 67 the Court ma' as per Rule 6> ma)e an order $or inspection in such

place and in such manner as it ma' thin) $it here inspection is re(uired o$ an' %usiness %oo)s

as per Rule 68 the Court instead o$ ordering inspection o$ the original %oo)s ma' order cop' o$

the entries therein to %e $urnished and veri$ied %' a$$idavit Rule ./ however deals with premature discover'

67 +he $orms and notices re(uired are given in Appendi@"C :orms


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Upon hearing* it is ordered that thedo within da's $rom the date o$ this order answer on

a$$idavit stating which documents are or have %een in possession or power relating to the matter

in (uestion in suit and that the costs o$ this application %e


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Upon hearingand upon reading the a$$idavit o$$iled theda' o$./* it is ordered that

the do at all reasona%le times on reasona%le notice produce at situate atthe $ollowing

documents namel' and that the %e at li%ert' to inspect and peruse the documents so producedand to ma)e notes o$ their contents In the meantime it is ordered that all $urther proceedings %e

sta'ed and that the costs o$ this application %e

60 A perusal o$ the a%ove $orms will elucidate the provisions contained in Rules 6.62 and 65 o$

=rder 66 I$ a part' who see)s the assistance o$ the Court $or causing production o$ the document %' his adversar' ma' invo)e these provisions ithout the assistance o$ the Court he ma'

independentl' issue a notice to his adversar' re(uiring production o$ documents Rule 60 o$

=rder 66 ena%les him to do so and that notice shall %e in :orm


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,mphasis is mineK

At page 22 in para 2? it has %een $urther dealt as under

+he o%ligation to disclose the e@istence o$ relevant documents is now coe@tensive with the

o%ligation to produce documents $or inspection +he $act that a document is privileged or otherwise protected $rom inspection is no reason $or not disclosing its e@istence

In determining whether a document should %e disclosed %' a part' two tests should %e applied-

163 whether it is relevant- 1.3 whether it is or was in the possession custod' or power o$ the part'

or his agent- and in an' case when the order directing disclosure has limited discover' or relatesto particular documents onl' the terms o$ that order must %e applied

,mphasis is mineK

In para 0. it is dealt as under-

+he right to the production o$ documents is a corollar' o$ the right to their inspection and an

order $or their production $or inspection is the o%vious method o$ en$orcing that right I$ the part' serving a list o$ documents or i$ a part' served with a notice to produce $or inspection

documents re$erred to in pleadings or a$$idavits $ails to serve the necessar' notice o$$ering

inspection or o%jects to produce an' documents $or inspection or o$$er inspection at a time or place such that in the opinion o$ the court it is unreasona%le to o$$er inspection then or there the

part' entitled to inspection ma' appl' $or an order $or production o$ the documents in (uestion

$or inspection at such time and place and in such manner as the court thin)s $it

+he power o$ the court to ma)e an order $or production $or inspection is discretionar' and the

court will not ma)e an order $or the production o$ an' documents $or inspection unless it is o$ opinion that the order is necessar' either $or disposing $airl' o$ the cause or matter or $or saving

costs hilst the court ma' ma)e an order $or production $or inspection at an' time it will notnormall' allow a plainti$$ inspection %e$ore he has served his statement o$ claim or a de$endant

%e$ore he has served his de$ence

,mphasis is suppliedK

In para 08 it is dealt as under-

Although the o%ligation to produce documents $or inspection is coe@tensive with the o%ligation

to disclose their e@istence there are man' relevant documents the e@istence o$ which must %edisclosed in the list o$ documents %ut which are nevertheless protected $rom production +he

grounds on which this protection can %e claimed can %e classi$ied under the $ollowing mainheads- 163 legal pro$essional privilege* 1.3 that production is contrar' to pu%lic polic'* 123 that

the documents in (uestion ma' tend to criminate the part' or his or her spouse* 153 that the

production is contrar' to some statutor' provision which imposes secrec'* 173 that production is

contrar' to some e@press or implied agreement %etween the parties* and 103 that productionwould in the circumstances o$ the particular case %e oppressive


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1,mphasis is supplied3

In Corpus Juris Secundum 9olume .? Clause 6 it has %een mentioned thus-

+he term discover' has several shades o$ meaning* %ut in the sense in which it is most

commonl' used discover' is the disclosure %' de$endant o$ $acts deeds documents or other things which are in his e@clusive )nowledge or possession and which are necessar' to the part'

see)ing the discover' as a part o$ a cause or action pending or to %e %rought in another court or

as evidence o$ his rights or title in such proceedings =$ course in a sense ever' %ill in e(uit' is a %ill $or discover'* discover' is incident to the suit and i$ the %ill is su$$icient to invo)e e(uit'

jurisdiction it pro%es the conscience o$ de$endant and o%liges him to answer $ull' as to all

matters charged ;owever under the in$le@i%le rules o$ the common law the parties to an actionwere incompetent as witnesses and no means were provided %' which an adverse part' could %e

compelled to produce documents in his possession $or the use o$ his opponent at the trial- and it

was in order to cure this de$ect that e(uit' esta%lished the remed' o$ discover' as ancillar' or

au@iliar' to actions or causes o$ action at law and which in the a%sence o$ statute constitutes the

sole means %' which its purposes ma' %e accomplished

,mphasis is mineK

In Clause 5 it is mentioned thus-

+he e@tent o$ the in(uir' under a %ill $or discover' rests largel' in the courtFs discretion* and in

determining what matters are proper su%jects o$ discover' the pleadings must %e )ept in mind

aterialit' Generall' the right to discover' o$ particular matters is governed %' their relevanc'

and materialit' to the case o$ the part' see)ing it Accordingl' while discover' will %e allowed

as to matter material to the claim or de$ence o$ the part' see)ing it provided all other re(uisitesare met it will not %e allowed to determine matters not necessar' or material or relevant to theissue A $undamental limitation on the right to discover' is that a part' is entitled to a discover'

o$ onl' such material $acts and documents as relate to his own case he is not entitled to a

discover' merel' to ena%le him to disprove or pr' into his adversar'Fs case Indeed mostauthorities have held that the matter sought to %e discovered must relate to applicantFs a$$irmative

case* %ut others have held that discover' need not %e con$ined to matters in support o$ part'Fs

a$$irmative case %ut ma' %e allowed even as to matters in disproo$ o$ the adversar'Fs case or de$ense provided applicantFs attac) on the adversar'Fs case in more than a mere negation thereo$

or denial o$ the allegations setting it $ort +he mere $act that the matters sought to %e discovered

are material to de$endantFs case does not prevent their discover' i$ the' are also material to

complainantFs case A %ill will not lie to discover the names o$ the other part'Fs witnesses or theevidence %' means o$ which the adversar'Fs case e@clusivel' is to %e esta%lished

,mphasis is mineK

In Clause 6> it is mentioned as under-


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A court o$ e(uit' has inherent power to compel discover' and production o$ %oo)s and papers in

possession o$ the adverse part' independent o$ an' statute* and the principles which govern

discover' in general are applica%le to the discover' o$ documentar' evidence +he jurisdictione@tends to cases where such %oo)s and papers are evidential in an e(uita%le cause pending in the

court in which instance the right to their inspection is incidental to the relie$ sought therein and

to cases arising under a %ill $or discover' and incidental relie$ or under a %ill $iled $or discover'onl' in aid o$ a prosecution or de$ence in litigation pending or contemplated and to no others


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,mphasis is mineK

6> As against these procedural provisions let us see principles contained in various provisions o$

the Act Section 60. o$ the Act deals with production o$ documents and it reads as under-

Section 60. !roduction o$ documents " A witness summoned to produce a document shall i$ itis in his possession or power %ring it to Court notwithstanding an' o%jection which there ma'%e

to its production or to its admissi%ilit' +he validit' o$ an' such o%jection shall %e decided on %'

the Court

+he Court i$ it sees $it ma' inspect the document unless it re$ers to matters o$ State or ta)eother evidence to ena%le it to determine on its admissi%ilit'

Section 602 however deals with giving in evidence the document called $or and produced on

notice and it reads as under-

Section 602 Giving as evidence o$ document called $or and produced on notice" hen a part'calls $or a document which he has given the other part' notice to produce and such document is

produced and inspected %' the part' calling $or its production he is %ound to give it as evidence

i$ the part' producing it re(uires him to do so

68 +he rationale %ehind the Section seems to %e that it would %e mani$estl' unjust and un$air to permit one to gain an undue advantage %' loo)ing into the documents o$ his opponent without

%eing o%liged to use it as evidence $or %oth o$ them Under the prete@t o$ a desire to use in

evidence a part' might call $or documents the contents o$ which were not )nown to him and$inding that the' did not suit his purpose or went against him he might wriggle out o$ the

situation %' discarding them It ma'%e urged that such a rule is not consistent with the part'Fs

right to o%tain discover' and inspection Section 602 does not re$er to documents produced ino%edience to the order o$ Court under =rder 66 Rule 65 o$ the Code

./ +he notice envisaged in Section 602 is a notice to %e given under Section 00 o$ the Act Such

notice shall %e given either to the part' or to his counsel in the $orm as is prescri%ed %' law and

i$ no notice is prescri%ed %' law in the $orm as the Court considers reasona%le +hat noticere(uires the part' to produce the document which is in his possession or power I$ the part' $ails

to produce the document despite the notice the part' at whose instance the notice has %een

issued is entitled to adduce secondar' evidence o$ the contents o$ the document +he pre"

re(uisite $or issuing such notice seems to %e that the part' must have possession o$ thedocument Such notice is not necessar' to lead secondar' evidence in ,@ceptions 6 to 0

mentioned inter alia in the proviso to Section 00 o$ the Act It is apt here to consider the provisions o$ =rder 66 Rule 60 o$ the Code Although as discussed hereina%ove the provisionre$ers to the documents mentioned inter alia in the plaint or the a$$idavit +he' can %e as)ed to %e

produced %' issuing a notice to the part' I$ the document is in possession and custod' o$ the

stranger summons can %e sought to %e issued as per =rder 60 Rule 0 o$ the Code +he $ailure to produce documents pursuant thereto entails penal conse(uences as per Rule .6


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.6 Section 605 o$ the Act ta)es care o$ the situation when the part' re$uses to produce and it

reads as under-

Section 605 Using as evidence o$ document production o$ which was re$used on notice "hen a part' re$uses to produce a document which he has had notice to produce he cannot

a$terwards use the document as evidence without the consent o$ the other part' or the order o$ the Court

.. Section 607 is the other relevant provision in the conte@t and it reads as under-

Section 607 JudgeFs power to put (uestions or order production " +he Judge ma' in order todiscover or to o%tain proper proo$ o$ relevant $acts as) an' (uestion he pleases in an' $orm at

an' time o$ an' witness or o$ the parties a%out an' $act relevant or irrelevant* and ma' order

the production o$ an' document or thing* and neither the parties nor their agents shall %e entitledto ma)e an' o%jection to an' such (uestion or order nor without the leave o$ the Court to cross"

e@amine an' witness upon an' answer given in repl' to an' such (uestion-

!rovided that the judgment must %e %ased upon $acts declared %' this Act to %e relevant and

dul' proved-

!rovided also that this section shall not authoriEe an' Judge to compel an' witness to answer an'

(uestion or to produce an' document which such witness would %e entitled to re$use to answer

or produce under Sections 6.6 to 626 %oth inclusive i$ the (uestion were as)ed or the document

were called $or %' the adverse part'* nor shall the Judge as) an' (uestion which it would %eimproper $or an' other person to as) under Section 65> or 658* nor shall he dispense with

primar' evidence o$ an' document e@cept in the cases herein%e$ore e@cepted

.2 A care$ul perusal o$ the said provision shows that the Judge ma' in order to discover or too%tain proper proo$ o$ relevant $acts ma' order the production o$ an' document or thing andneither the parties nor their agents were entitled to ma)e such an o%jection to an' such order +he

discover' envisaged under this Section is to discover the truth unli)e the discover' envisaged

under the provisions o$ =rder 66 o$ the Code where it is to shorten the litigation +hus adistinction can %e drawn in the procedural provisions contained in =rder 66 o$ the Code and the

Rules o$ evidence contained in Sections 60. to 607 o$ the Act

.5 Section 607 there$ore intended to arm Judges with a general power to as) an' (uestion in

an' $orm at an' time o$ an' witness or parties a%out an' $act relevant or irrelevant +he positiono$ a Judge is not that o$ a moderator %etween contestants in a game with no inclination to

inter$ere till the violation o$ its rules ;e has a much higher dut' to per$orm ;e has to see notonl' that the proceedings are conducted strictl' according to law %ut to administer justice and to$ind out the truth ;e must there$ore pla' an a$$ective part and it is not onl' his right %ut it is his

dut' to as) the witness an' (uestion in an' manner the answer to which in his opinion would aid

in the discover' o$ truth So whenever the judge $inds that the e@amination has not %eenconducted in a wa' as to un$old the truth or that o%scurities in the evidence should %e made clear

and intelligi%le it is not onl' his right na' his dut' to pro%e $urther into matters that he deems

important %' his own (uestions An un%ridled power thus has %een vested in the Court so as to


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ascertain the truth notwithstanding the $act that the parties do not propose to have such discover'

;owever that un%ridled power even has certain limitations +he part' can o%ject $or the

production o$ the documents claiming privilege

.7 Although Sections 60. to 607 re$erred to hereina%ove come within the domain o$ the Chapter

6/ o$ the Act dealing with the e@amination o$ witnesses the provisions e(uall' appl' to the parties

.0 +he $ailure to produce documents pursuant to the notice issued under Section 00 prevents the part' a$terwards $rom using the document as evidence without the consent o$ the other part' or

the order o$ the Court Under Section >8 o$ the Act the Court shall presume that ever' document

called $or %ut not produced a$ter notice to produce was attested stamped and e@ecuted in themanner re(uired %' law I$ the document in possession is not produced a$ter notice there is a

presumption under Section 665 illustration 1g3 that the evidence i$ produced would have %een

un$avoura%le to the person who withholds it

.? It appears that the rules pertaining to production o$ documents as envisaged in the provisionso$ the Code and the rules pertaining to production o$ documents as envisaged in the Act ma'

appear to %e overlapping But once we consider the o%ject %ehind such rules as discussed

hereina%ove there appears to %e a distinction in %etween them although thin %ut appears to %e

real

.> +urning to the law on the point in Broo)s and Anr v !rescott and =rs 685> All ,4R 8/?

the Court o$ Appeal held thus-

+he de$endants were entitled to resist the application $or their production since the plainti$$s

were not entitled to the production o$ documents which related solel' to the de$endantsF case and

did not support the plainti$$sF case and this privilege was not con$ined to documents which wereadmissi%le in evidence

.8 In State o$ !unja% v SS Singh the Constitution Bench o$ the Ape@ Court in para 55 held

thus-

+he procedural law in regard to discover' production and inspection o$ documents is contained

in =rder 66 Rule 6. .6 It is true that =rder 66 Rule 68 Su%"rule 1.3 provides that in dealing

with a claim o$ privilege it shall %e law$ul $or the Court to inspect the document $or the purpose

o$ deciding the validit' o$ the claim o$ privilege +he (uestion is what is the e$$ect o$ this provision when it is considered along with Section 60. o$ the ,vidence ActL

Ultimatel' at the end o$ para 5> the Ape@ Court held thus-

+his shows that where the State is a part' a summons ma' have to %e issued to its appropriate

o$$icer calling upon him to produce the documents $or inspection +he provisions o$ Rules 65 67and 60 o$ =rder 66 show that a$$idavits have to %e $iled %' the parties and the $iling o$ a$$idavits

which is permitted %' =rder 68 is undou%tedl' one mode o$ giving evidence =rder 60 Rule 6

provides $or the issue o$ a summons to persons whose attendance is re(uired inter alia to produce


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documents* and Rule .6 o$ the said order e@pressl' provides that where an' part' to suit is

re(uired to give evidence or to produce a document the provisions as to witnesses shall appl' to

him so $ar as are applica%le +hus there can %e little dou%t that where a privilege is claimed at thestage o$ inspection and the Court is re(uired to adjudicate upon its validit' the relevant

provisions o$ the Act under which the privilege is claimed as well as the provisions o$ Section

60. which deal with the manner in which the said privilege has to %e considered are e(uall'applica%le* and i$ the Court is precluded $rom inspecting the privileged document under the

second clause o$ Section 60. the said prohi%ition would appl' as much to a privilege claimed %'

the State through its witness at the trial as a privilege similarl' claimed %' it at the stage o$ inspection It is hardl' necessar' to point out that a contrar' view would lead to this mani$estl'

unreasona%le result that at the stage o$ inspection the document can %e inspected %' the Court

%ut not at the su%se(uent stage o$ trial In our opinion the provisions o$ =rder 66 Rule 68 Su%"

rule 1.3 must there$ore %e read su%ject to Section 60. o$ the Act

2/ +he Ape@ Court seems to have clearl' drawn the distinction %etween the production o$ the

documents at the stage o$ Inspection and at the stage o$ trial and held however that the

provisions o$ Section 60. would appl' even at the stage o$ inspection ie at the stage o$ discover' %' documents

26 4 Sethi v R! aput was a case where a suit was sought to %e $iled in $orma pauperist or

recover' o$ damages to the tune o$ Rs ?5>///?" $or malicious prosecution +he State as well as

the part' to the suit $iled o%jections stating that the plainti$$ was not a pauper +o prove the said$act that the plainti$$ was not a pauper the de$endant $iled an application $or discover' o$

documents $rom the respondent"plainti$$ +he Court directed the plainti$$ to discover on a$$idavit

the documents relating to the %an) accounts o$ the respondent viE pass %oo) che(ue %oo)s

counter$oils etc and also the documents in respect o$ the properties held %' him and the personal accounts maintained %' him +he respondent who was to $ile an a$$idavit o$ discover'

did not $ile the a$$idavit in pursuance o$ the order o$ the Court ;owever he moved anapplication %e$ore the Court that he wanted to $ile a revision against the order directing him todiscover documents re(uesting time +ime was re$used +he Court eventuall' dismissed his

application see)ing leave to sue as pauper +hat order was challenged along with the order

directing discover' o$ documents %e$ore the ;igh Court +he ;igh Court held that in anapplication under =rder 22 which is summar' in nature the sophisticated procedure $or

discover' should not have %een resorted to In the appeal $iled %e$ore the Supreme Court it was

held in para 7 thus-

Generall' spea)ing a part' is entitled to inspection o$ all documents which do not themselvesconstitute e@clusivel' the other part'Fs evidence o$ his case or title I$ a part' wants inspection o$

documents in the possession o$ the opposition part' he cannot inspect them unless the other

part' produces them +he part' wanting inspection must there$ore call upon the opposite part'to produce the document And how can a part' do this unless he )nows what documents are in

the possession or power o$ the opposite part'L In other words unless the part' see)ing discover'

)nows what are the documents in the possession or custod' o$ the opposite part' which would

throw light upon the (uestion in controvers' how is it possi%le $or him to as) $or discover' o$ speci$ic documentsL


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+he Court while dealing with the provisions o$ =rder 66 Rule 6. held thus-

hen the Court ma)es an order $or discover' under the rule the opposite part' is %ound to ma)e

an a$$idavit o$ documents and i$ he $ails to do so he will %e su%ject to the penalties speci$ied inRule .6 o$ =rder 66 An a$$idavit o$ documents shall set $orth all the documents which are or

have %een in his possession or power relating to the matter in (uestion in the proceedings And asto the documents which are not %ut have %een in his possession or power he must state what has

%ecome o$ them and in whose possession the' are in order that the opposite part' ma' %eena%led to get production $rom the persons who have possession o$ them 1see :orm


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A practice has grown up in Indian procedure o$ those in possession o$ important documents or

in$ormation l'ing %' trusting to the a%stract doctrine o$ the onus o$ proo$ and $ailing

accordingl' to $urnish to the Courts the %est material $or its decision ith regard to third parties this ma' %e right enough " the' have no responsi%ilit' $or the conduct o$ the suit* %ut

with regard to the parties to the suit it is in +heir 4ordship opinion an inversion o$ sound

practice $or those desiring to rel' upon a certain state o$ $acts to withhold $rom the Court thewritten evidence in their possession which would %e row light upon the proposition

+he Ape@ Court held ultimatel' that it is $or the part' in whose custod' the %est evidence is to

produce the document notwithstanding the (uestion o$ %urden whether it is on him or on the

adversar'

27 In rishna Rao v State o$ Andhra a Bench o$ this Court held in para 5 thus-

A plain reading o$ =rder MI Rule .6 shows that the Court could have invo)ed the penal

provisions o$ that rule onl' i$ there had %een an order to answer interrogatories or $or discover'

or $or inspection o$ documents under Rules 66 6. and 6> o$ =rder MI +he plainti$$ did not appl'under an' o$ the provisions o$ =rder MI at all ;e merel' gave a notice to produce under =rder

MII Rule > I$ there was de$ault on the part o$ the de$endant the plainti$$Fs notice ena%led him to

adduce secondar' evidence o$ the contents o$ the documents under Section 07 Clause 1a3 o$ he

,vidence Act It is not even suggested that the plainti$$ sought to let in secondar' evidence o$ these documents and that such evidence was shut out I$ $ollows that nothing turns on the partial

non"compliance on the part o$ the de$endant with the plainti$$Fs notice under =rder MII Rule >

20 In Go%inda ohun v agneram Bangur & Co AIR 685/ Calcutta 226 It was held thus-

Rule 6. o$ =rder 66 is considera%l' wider than =rder 62 Rule 6 o$ the Code +he right to o%tain

discover' o$ an adversar'Fs documents is a ver' wide one and is not limited merel' to thosedocuments which ma' %e held to %e admissi%le in evidence when the suit is ultimatel' tried

It is true that in a suita%le case a de$endant ma' o%ject to the production o$ a document on the

ground that it relates solel' to his title %ut i$ on the other hand that document ma' have some %earing in support o$ the plainti$$Fs title such o%jection cannot %e validl' raised I$ an order $or

discover' is made under =rder 66 Rule 6. all the documents relating to the case should %e

em%odied in the a$$idavit o$ documents %' the person against whom the order $or discover' ismade I$ however the de$endant considers that he is entitled to protection in respect o$ the

production o$ an' particular documents which ma' %e entered in the a$$idavit under =rder 66

Rule 62 o$ the Code he will %e at li%ert' to raise such o%jection at the proper stage o$ the

proceedings i$ and when he is ordered to produce such documents under =rder 66 Rule 65 or togive inspection o$ them under =rder 66 Rule 6>

2? In Indian :oils 4td v 7th Industrial +ri%unal AIR 6>?. Calcutta 2/> it was held thus-

+he Court has got ample powers to ma)e an order $or production o$ a document at an' time

during the pendenc' o$ the suit But %e$ore such an order can %e made the Court must satis$'itsel$ and record a $inding to the e$$ect that the documents are in the possession or power o$ the


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part' against whom the order is sought and the' relate to the matter in (uestion %e$ore the Court

An order made without such satis$action is without jurisdiction and is lia%le to %e set aside

2> +he Caluctta ;igh Court sought to distinguish the Judgment o$ the A! ;igh Court in !9arala)shmamma v ! Bala Su%rarman'am 687> 1.3 AnR .50 - AIR 687> A! 67? wherein

it was held thus-

It is law$ul $or the Court under =rder 66 Rule 65 Civil !C at an' time during the pendenc' o$

an' suit to order the production o$ a document +he words at an' time are ver' signi$icant andimportant Rule 65 does not re(uire that the order $or production should %e made onl' a$ter an

order o$ discover' is o%tained under =rder 66 Rule 6. C!C

28 Sri Seshadri


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+he answer to the interrogator' shall %e %' means o$ an a$$idavit Similarl' discover' o$

documents can %e o%jected on the ground o$ legal or pro$essional privilege* that the' ma' tend to

criminate a part' or e@pose him to $or$eiture* that the' are protected %' pu%lic polic'* that the'are not in the sole possession o$ the part'* that the' solel' relate to the case o$ the part'* that the'

are in the possession o$ the part' as an agent or a representative o$ another* and that the' disclose

evidence o$ part'Fs own case Again the discover' o$ documents shall %e made upon oath


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non"compliance o$ such a direction to produce the documents the penal conse(uences will not

$ollow as in the case o$ discover' o$ documents as per the provisions contained in =rder 66 Rule

.6 o$ the Code ;owever certainl' the Court is entitled to draw the adverse in$erence

52 In Gopal rishnajiFs case 1re$erred to 7 supra3 a three Judge Bench o$ the Ape@ Court held in

para 7 at page 6560 as under-

,ven i$ the %urden o$ proo$ does not lie on a part' the Court ma' draw an adverse in$erence i$ he

withholds important documents in his possession which can throw light on the $acts at issue It isnot in our opinion a sound practice $or those desiring to rel' upon a certain state o$ $acts to

withhold $rom the Court the %est evidence which is in their possession which could throw light

upon the issues in controvers' and to rel' upon the a%stract doctrine o$ onus o$ proo$

55 In Agarchand v #eochand it was held thus-

In order to raise the presumption under Section 6651g3 o$ the ,vidence Act it was not necessar'

to $ollow the procedure o$ giving a notice $or the production o$ documents under =rder MIC!C or to summon the documents under =rder M9I C!C +he onl' important condition laid

down is that the part' should prove that the document is in e@istence and is in the possession or custod' o$ the part' against whom the adverse in$erence is sought to %e drawn

57 +here$ore it is alwa's open to the Court wherever necessar' when the $act situation warrants

to draw the necessar' adverse in$erence $or the non"production o$ the documents relevant to the

matter in controvers' notwithstanding the $act that the %urden is upon a particular part' in whosecustod' the documents are in e@istence and there is no need to discover the documents

50 +urning to the matri@ o$ the instant case it is discerni%le $rom the a$$idavit $iled in support o$

the petition that a notice was served upon the counsel $or the de$endants re(uiring to produce therelevant records as enumerated in detail therein and when pursuant to the said notice thede$endants $ailed to produce the documents the plainti$$ $iled a petition under =rder 66 Rule 65

o$ the Code to direct the $irst de$endant to produce their income ta@ returns $or the period 6887"

80 to .//6".//. along with admitted %alance sheet pro$it and loss account and details o$ capitalaccounts along with the statement o$ %an) account o$ Aar Bee ,nterprises $or the period 6887"80

to .//6".//. %earing Current AHc


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or trial while leading evidence I$ the documents are not in the custod' o$ the Court and are in the

possession o$ the parties to the suit it is open to the opposite part' to issue notice as envisaged

under the principles o$ evidence and re(uest the opposite part' to produce those documents %e$ore the Court


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;owever it will not preclude the plainti$$s $rom $ollowing the procedure as discussed

hereina%ove Under the circumstances I direct %oth the parties to %ear their respective costs