Saji Koduvath, Advocate, Kottayam.

Important Provisions in the Civil Procedure Code, In a nutshell

Order XI, rule 15. Inspection of documents referred to in pleadings or affidavits	A party to a suit is entitled at any time to give notice to any other party, in whose pleadings or affidavits reference is made to any document to produce such document for the inspection of the party giving such notice, or of his pleader, and to permit him or them to take copies thereof.
rule 16. Notice Form	Notice to any party to produce any documents referred to in his pleading or affidavits shall be in Form No. 7 in Appendix C, with such variations as circumstances may require
rule 18. Order for inspection.	Where the party omits to give such notice of a time for inspection or objects to give inspection, the Court may, on the application of the party, make an order for inspection.
rule 21. Non-compliance with order for discovery.	Where any party fails to comply with order for discovery or inspection of document, the suit may be liable to be dismissed, and, if a defendant, to have his defence, if any struck out. Where an order is made dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action.
Order XII, rule 2. Notice to admit documents	Either party may call upon the other party to admit, within seven days from the date of service of the notice any document.
rule 3. Notice Form	Notice to admit documents shall be in Form No. 12 in Appendix C, ‘with such variations as circumstances may require’.
rule 8. Notice to produce documents	Notice to produce documents shall be in Form No. 12 in Appendix C, ‘with such variations as circumstances may require’.
rule 12. Notice Form	Form No. 12 says as to Notice “to produce and show to the court at the first hearing of this suit all books, papers, letters, copies of letters and other writings and documents in your custody, possession or power, containing any entry, memorandum or minute relating to the matters in question in this suit, and particularly.”...
Order XVI rule 6. Summons to produce document.	Any person is summoned to produce a document, without being summoned to give evidence, shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same.

Notice to Produce Documents under Order XI rule 16 & Order XII rule 8

Order XI rule 16 (when reference is made to any document, in pleadings or affidavits)

Order XI rule 16 notice is provided after giving the substantive right to give notice to the other party, in whose pleadings or affidavits reference is made to any document to produce such document for the inspection, under rule 15. (The form is given in Form No. 7 in Appendix C.)

• Note: For giving notice under Order XI rule 16, document must have been referred to in pleadings or affidavits.

Order XII rule 8

But, (abruptly) without giving a substantive direction (as in Order XI rule 15*^*) to one party to the suit, it is stated in Order XII rule 8 that a notice can be given to produce documents (in Form No. 12 in Appendix C) to ‘produce and show to the Court’. ^#

• *^*To give notice to any other party, in whose pleadings or affidavits reference is made to any document to produce such document for the inspection of the party.
• ^#The form No. 12 shows that it is given by one party or his advocate to the other.

Order XII Rule 8 reads as under:

• “Notice to produce documents: Notice to produce documents shall be in Form No. 12 in Appendix C, with such variations as circumstances may require. An affidavit of the pleader, or his clerk, or of the service of any notice to produce, and of the time when it was served, with a copy of the notice to produce, shall in all cases be sufficient evidence of the service of the notice, and of the time when it was served.”
  • Note: Order XII rule 8 itself contains – “with such variations as circumstances may require”; and in the heading of Form No. 12 it is stated – “(General Form)”.

Form No. 12 reads as under:

• “Take notice that you are hereby required to produce and show to the Court at the first hearing of this suit all books, papers, letters, copies of letters and other writings and documents in your custody, possession of power, containing any entry, memorandum or minute relating to the matters in question in this suit, and particularly.”

• First Hearing
  • First-hearing is not defined in the CPC. In Siraj Ahmad Siddiqui v. Shri Prem Nath Kapoor, AIR 1993 SC 2525, our Apex Court held as under:
  • “13. The date of first hearing of a suit under the Code is ordinarily understood to be the date on which the court proposes to apply its mind to the contentions in the pleadings of the parties to the suit and in the documents filed by them for the purpose of framing the issues to be decided in the suit.”

From the above, it is clear:

• The Form No. 7 and Form No. 12 (Appendix – C) notices are given by one party or his advocate to the other.
• Order XII rule 8 Notice is – to produce and ‘show court’ only (as stated in Form No. 12). But, Order XI rule 15 states – notice can be given by one party to the other party ‘to produce document for the inspection of the party, or of his pleader, and to permit him or them to take copies thereof‘.
• Order XI rule 15 is confined to documents referred to in pleadings or affidavits. But, Order XI rule 8 is not so confined.
• It is reasonable to conclude that this power given to a party (to give notice by one party to other – under Order XI rule 8) is to be exercised, normally, ‘at the first hearing‘ alone (see: Form No. 12); and, even if it can be given effect to in a subsequent stage (by the orders of the court), it is only in exceptional circumstances. (The reason thereof is plain.)
• It will also be rationale to infer that the Order XI rule 8 does not allow a party to see the document produced – for, Form No. 12 says as to ‘show court’ only; and does not allow ‘to produce document for the inspection of the party, or of his pleader, and to permit him or them to take copies thereof‘, as provided under Order XI rule 15. (The logic behind it is explicit.)

See Blog: Best Evidence Rule in Indian Law

A Discordant Note – For, Inclusion of rule 8 in Order XII is Incongruent

Order XII deals with ‘Admission’. Rule 8 thereof hands out ‘Notice to produce documents’. It can be seen, on a plain reading, that rule 8 is not confined to “Admission”. Therefore, inclusion of rule 8 in Order XII is incongruent.

No Adverse Presumption Possible

Is it possible to draw adverse presumption for non production of a document (in spite of notice under rule 8 in Order XII) is an interesting question.

The answer will be negative, when we go by provisions of CPC. They are the following:

• It only gives power to a party to give notice to other party; it does not require court intervention.
• Order XII rule 8 Notice is – to produce and ‘show court’ only (as stated in Form No. 12)
• It is directed to be exercised ‘at the first hearing‘ alone (see Form No. 12); and, in any case, even if it is possible to give effect to (by the court), in a subsequent stage, it can be done only in exceptional circumstances.
• Under Order XI rule 15, where any party fails to comply with order for discovery or inspection of document, the suit may be liable to be dismissed, and, if a defendant, to have his defence, if any struck out. Such stringent measures are not attached to non-compliance of Order XII rule 8.

But, the provisions of the Evidence Act (Sec. 66) stipulates that ‘if the adverse party knows that he will be Required to Produce’ a document, it is his duty to produce the document, even if it was not sought-for by notice. (Sec. 114 of the Evidence Act lay down the circumstances in which adverse presumption can be drawn when a document – in possession – is not produced.) Sec. 66 directs that the notice to produce such document must be “as prescribed by law, and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case”.

In view of the words in Sec. 66 of the Evidence Act as to the notice “prescribed by law”, in civil cases, the notice to be issued (for production of document) is that provided under Order XII rule 8.

Important Provisions in the Evidence Act (in this regard) In a Nutshell

66. Rules as to notice to produce	Secondary evidence of the documents shall not be given unless the party proposing to give such secondary evidence have given notice to the other party. Provided that such notice shall not be required (1) when the document to be proved is itself a notice; (2) when, from the nature of the case, the adverse party must know that he will be required to produce it; (3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force; (4) when the adverse party or his agent has the original in Court; (5) when the adverse party or his agent has admitted the loss of the document; (6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.
89. Presumption as to due execution, etc., of documents not produced.	The Court shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law.
130. Production of title-deeds of witness not a party.	No witness who is not a party to a suit shall be compelled to produce (i) his title-deeds to any property, or (ii) any document in virtue of which he holds any property as pledge or mortgagee.
131. Production of documents or electronic records which another person could refuse to produce.	No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession or control, unless such last-mentioned person consents to their production.
144. Evidence as to matters in writing.	Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced.
162. Production of documents	A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court.
163. Giving, as evidence, of document called for and produced on notice:	When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.
164. Using, as evidence, of document production of which was refused on notice.	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.

No Notice Required if Adverse Party knows that ‘he will be required to produce it‘

Sec. 66 of the Evidence Act stipulates that secondary evidence of the documents shall not be permitted unless the party proposing to give such secondary evidence have given notice to the other party. But, the proviso to the section states, among other things, that when, from the nature of the case, the adverse party knows that “he will be required to produce it,” then such notice is not required.

 In Hiralal Devji Kharva v. Ladhibai Gokal, 1979- 2 Guj LR 390, it was held that where the adverse party is expected to know from the facts of the case that the document is required to be produced and fails to produce the same the non service of notice would not preclude the party from leading secondary evidence. 

Adverse party must know that he will be Required to Produce it

A witness says ‘whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and he says that it was‘ (Sec. 141 Evd. Act) and the adverse party ‘objects to such evidence being given (Sec. 141 Evd. Act) until such document is produced (expressly or impliedly) it falls under the head, “he will be required to produce it ” (Sec. 66, 2nd proviso, Evd. Act).

In a proper case, the question – “Can you produce the document in court”, and the answer – “Yes”, will exonerate the party from giving a (formal) “notice to the other party” for it attracts – “the adverse party must know that he will be required to produce it“.

Sec. 22 of the Evidence Act (admissions as to contents of documents) is also relevant here. It reads as under:

• “22. When oral admissions as to contents of documents are relevant.—Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.”

Best Available Evidence must be Produced; If Not, Adverse Presumption will be Taken

It may not be safe to a party to a suit to fall-back technically on non-reception of notice under Sec. 66 Evidence Act, in the teeth of the ‘best evidence rule’.

It is the duty of the party to lead the best evidence in his possession even though onus of proof do not lie on him, and he is not called upon to produce the said evidence; and the Court will draw adverse inference under Section 114(g) of the Evidence Act if such evidence is withheld.

But this rule cannot be applied blindly. Mere non-production of documents would not result in adverse inference, invariably (as shown below). Courts take into consideration the pleadings and decide whether the document/evidence withheld has any relevance. The court also cannot lose sight of the fact that burden of proof is on the party which makes a factual averment. The conduct and diligence of the other party is also important. Existence of some other circumstances may justify non-production (Union of India v. Ibrahim Uddin, (2012) 8 SCC 148).

The rule that best available evidence must be produced is taken in the following cases:

• Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6; 
• Hiralal v. Badkulal, AIR 1953 SC 225; 
• A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136; 
• The Union of India v. Mahadeolal Prabhu Dayal, AIR 1965 SC 1755; 
• Gopal Krishnaji Ketkar v. Mohamed Haji Latif, AIR 1968 SC 1413;
• M/s. Bharat Heavy Electrical Ltd. v. State of U.P.,  AIR 2003 SC 3024;
• Khatri Hotels Pvt. Ltd. v. Union of India, (2011) 9 SCC 126.

In Mohan Lal Shamlal Soni v. Union of India, AIR 1991 SC 1346, the Supreme Court held as under:

• “It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavorable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act.”

Invoking best evidence rule it is observed by the Supreme Court in Musauddin Ahmed v. State of Assam, (2009) 14 SCC 541, as under:

• “13. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such a material evidence is withheld, the Court may draw adverse inference under Section 114 illustration (g) of the Evidence Act notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal Krishnaji Ketkar v. Mohamed Haji Latif, AIR 1968 SC 1413).”

In Jitendra v. State of M.P, (2004) 10 SCC 562, our Apex Court observed that charas and ganja seized from the accused was the best evidence in that case and the non-production of the same in court was seriously taken note of by the court and observed that that mere oral evidence as to the same was insufficient.(See also: Mohd. Aman, Babu Khan v. State of Rajasthan, AIR 1997 SC 2960.)

In Tomaso Bruno v. State of U.P, (2015) 7 SCC 178, it is observed as under:

• “22. To invoke Section 106 of the Evidence Act, the main point to be established by the prosecution is that the accused persons were present in the hotel room at the relevant time. PW-1 Ram Singh-Hotel Manager stated that CCTV cameras are installed in the boundaries, near the reception, in the kitchen, in the restaurant and all three floors. Since CCTV cameras were installed in the prominent places, CCTV footage would have been best evidence to prove whether the accused remained inside the room and whether or not they have gone out. CCTV footage is a strong piece of evidence which would have indicated whether the accused remained inside the hotel and whether they were responsible for the commission of a crime. It would have also shown whether or not the accused had gone out of the hotel. CCTV footage being a crucial piece of evidence, it is for the prosecution to have produced the best evidence which is missing. Omission to produce CCTV footage, in our view, which is the best evidence, raises serious doubts about the prosecution case.”

With regard to adverse presumption the Apex Court held in Tomaso Bruno as under:

• “28. As per Section 114 (g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. The presumption under Section 114 (g) of the Evidence Act is only a permissible inference and not a necessary inference. Unlike presumption under Section 139 of Negotiable Instruments Act, where the court has no option but to draw statutory presumption under Section 114 of the Evidence Act.”

Directing Production Without Discovery “NOT the Correct Approach“

The indisputable reciprocity between ‘discovery’ and ‘production’, and the sequence in which the they are arrayed in Rule 12 and 14, ensure that compliance of Rule 12 is a necessary pre-condition for ordering ‘production’ under Rule 14. Therefore, it is definite that discovery under Rule 12 partakes its ‘production’ (as the next step, under Rule 14).

The afore-stated propositions are fortified by the following:

1. Ordering production, under Rule 14, is purely a discretionary matter with court.
   • Rule 14 reads – ” It shall be lawful for the court” … to order the production … of such of the documents in his possession or power … ”.
   • Import of these words are obvious in itself. That is, wide-open discretion is given to the court for ordering production under rule 14.
2. It is unquestionable that a party to the suit has no vested right to seek ‘production’ of any document under rule 14-
   • even after ‘discovery’ of the same under rule 12.
3. Similarly, the party to the suit has no vested right to seek production of ‘all documents‘ discovered under Rule 12.

Of course, no doubt, the court has discretion to summon a party to produce documents under O.16 R.14 which reads as under:

• O. 16 R. 14: “Court may of its own accord summon as witnesses strangers to suit: Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it necessary [to examine any person, including a party to the suit], and not called as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession on a day to be appointed, and may examine him as a witness or require him to produce such document.”

But, the words “of its own accord”, “subject to the provisions of this Code … and to any law” and “the Court may” make it clear that this provision is not intended to use openhandedly.

See Blog: Production of Documents in Court: Order 11, Rule 14 CPC is not independent from Rule 12

Section 130 Evidence Act

• Sec. 130 stipulates that no witness who is not a party to a suit shall be compelled to produce
  • (i) his title-deeds to any property, or
  • (ii) any document in virtue of which he holds any property as pledge or mortgagee.

It will be interesting to consider whether the court has jurisdiction to compel a party to produce his title-deeds to any property applying the converse analogy on the negative assertion in Section 130 (otherwise than ‘discovery’ under Rule 12).

The answer is – No.

In Dolagovinda Pradhan Vs. Bhartruhari Mahatab, 1993 CIVCC 394, 1993-3 LJR 506, 1991-2 Ori LR395, 1991-3 CurCC 519, it is observed (obiter) that under Order 11, Rule 14, CPC, it would be lawful for the Court to require, the party to the suit, to produce such documents in his possession relating to any matter in question in the suit subject to its lawful objections. The High Court pointed out the converse analogy on the negative assertion in Section 130 Evidence Act (which provides that no witness who is not a party to a suit shall be compelled to produce his title-deeds to any property). Though the High Court merely referred to “lawful” authority of the court to require production of the document from a party, it clear that the postulation laid down is that the court has the “power” to order production, because the court placed the proposition in converse to the direction in Sec. 130 of the Evidence Act. It does not appear to be a correct proposition in the light of ML Sethi v. RP Kapur (supra).

Courts to Admit Documents Without Proof

Sections 162, 163 and 164 of the Evidence Act, reads as under:

• 162. Production of documents. –– A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court.
• The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.
• 163. Giving, as evidence, of document called for and produced on notice: When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.
• 164. Using, as evidence, of document production of which was refused on notice. –– 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.

In Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, and R v. Makhan, AIR 1940 Cal 167 it was observed that Section 163 of the Evidence Act applies to Criminal Proceedings also. It is observed in Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, with respect to a document used under Sec. 163, as under:

• “The further contention is that if they are to be admitted, they cannot be put in or at any rate used without proof. But the section itself says that the party calling for it is bound to give it as evidence if required to do so, and that certainly means that it goes in as a record of the particular proceeding and that it can be looked at to see what it includes or omits.”

Court’s Jurisdiction to Require to Prove an Admitted Document

In any case, besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts (Evidence Act, CPC and CrPC) shows that the court has jurisdiction to require the party concerned to prove that document. We can see it in Sec. 58 of Evidence Act, Order XII, Rule 2A Proviso of the CPC and Sec. 294 of the CrPC .

Section 294 of Code of Criminal Procedure reads as follows:

• “294. No formal proof of certain documents. (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
• (2) The list of documents shall be in such form as may be prescribed by the State Government.
• (3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:
• Provided that the Court may, in its discretion, require such signature to be proved.”

See Blog: PRODUCTION, ADMISSIBILITY & PROOF OF DOCUMENTS

---

Foot Notes:

Provisions in the Civil Procedure Code

Order XI rule 15 and Order XII rule 2 are the main provisions in the CPC to give notice to the other party to produce documents for ‘inspection’ and ‘show court’ (see form of notice in Form No. 12 in Appendix C of the CPC), respectively.

Order XI rule 15 to 21 read as under:

• 15. Inspection of documents referred to in pleadings or affidavits. Every party to a suit shall be entitled at any time to give notice to any other party, in whose pleadings or affidavits reference is made to any document or who has entered any document in any list annexed to his pleadings or produce such document for the inspection of the party giving such notice, or of his pleader, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such suit unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the suit, or that he had some other cause or excuse with the Court shall deem sufficient for not complying with such notice, in which case the Court may allow the same to be put in evidence on such terms as to costs an otherwise as the Court shall think fit.
• 16. Notice to produce. Notice to any party to produce arty documents referred to in his pleading or affidavits shall be in Form No. 7 in Appendix C, with such variations as circumstances may require.
• 17. Time for inspection when notice given. The party to whom such notice is given shall, within ten days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at the office of his pleader, or in the case of bankers’ books or other books of account or books in constant use for the purposes of any trade or business, at their usual place of custody, and stating which (if any) of the documents he objects to produce, and on what ground. Such notice shall be in Form No. 8 in Appendix C, with such variations as circumstances may require.
• 18. Order for inspection. (1) Where the party served with notice under rule 15 omits to give such notice of a time for inspection or objects to give inspection, or offers inspection elsewhere than at the office of his pleader, the Court may, on the application of the party desiring it, make an order for inspection in such place and in such manner as it may think fit :
• Provided that the order shall not be made when and so far as the Court shall be of opinion that, it is not necessary either for disposing fairly of the suit or for saving costs.
• (2) Any application to inspect documents, except such as are referred to in the pleadings, particulars or affidavits of the party against whom the application is made or disclosed in his affidavit of documents, shall be founded upon an affidavit showing of what inspection is sought, that the party applying is entitled to inspect them, and that they are in the possession or power of the other party. The Court shall not make such order for inspection of such documents when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.
• 19. Verified copies. (1) Where inspection of’ any business books is applied for, the Court may, if it thinks fit, instead of ordering inspection of the original books, order a copy of any entries therein to be furnished and verified by the affidavit of some person who has examined the copy with the original entries, and such affidavit shall state whether or not there are in the original book any and what erasures, interlineations or alterations :
• Provided that, not withstanding that such copy has been supplied, the Court may order inspection of the book from which the copy was made.
• (2) Where on an application for an order for inspection privilege is claimed for any document, it shall be lawful for the Court to inspect the document for the purpose of deciding as to the validity of the claim of privilege unless the document relates to matters of State.
• (3) The Court may, on the application of any party to a suit at any time, and whether an affidavit of documents shall or shall not have already been ordered or made, make an order requiring any other party to state by affidavit whether any one or more specific documents, to be specified in the application, is or are, or has or have at any time been, in his possession or power; and, if not then in his possession, when he parted with the same and what has become thereof. Such application shall be made on an affidavit stating that in the belief of the deponent the party against whom the application is made has, or has at some time had, in his possession or power the document or documents specified in the application, and that they relate to the matters in question in the suit, or to some of them.
• 20. Premature discovery. Where the party from whom discovery of any kind or inspection is sought objects to the same, or any part thereof, the Court may if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the suit, or that for any other reason it is desirable that any issue or question in dispute in the suit should be determined before deciding upon the right to the discovery or inspection, order that such issue or question be determined first, and reserve the question as to the discovery or inspection.
• 21. Non-compliance with order for discovery. (1) Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of document, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect and an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard.
• (2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action.

Order XII rule 2 and 8 read as under:

• 2. Notice to admit documents. Either party may call upon the other party [to admit, within [seven] days from the date of service of the notice any document,] saving all just exceptions; and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the suit may be, unless the Court otherwise directs; and no costs of proving any document shall be allowed unless such notice is given, except where the omission to give the notice is, in the opinion of the Court, a saving of expense.
• 2A. Document to be deemed to be admitted if not divided after service of notice to admit documents. (1) Every document which a party is called upon to admit, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of that party or in his reply to the notice to admit documents, shall be deemed to be admitted except as against a person under a disability :
• Provided that the Court may, in its discretion and for reasons to be recorded, require any document so admitted to be proved otherwise than by such admission.
• (2) Where a party unreasonably neglects or refuses to admit a document after the service on him of the notice to admit documents, the Court may direct him to pay costs to the other party by way of compensation.
• 3. Form of notice. A notice to admit documents shall be in Form No. 9 in Appendix C, with such variations as circumstances may require.
• 8. Notice to produce documents. Notice to produce documents shall be in Form No. 12 in Appendix C, with such variations as circumstances may require. An affidavit of the pleader, or his clerk, of the service of any notice to produce, and of the time when it was served, with a copy of the notice to produce, shall in all cases be sufficient evidence of the service of the notice, and of the time it was served.

Order XVI rule 6 reads as under:

• 6. Summons to produce document. Any person may be summoned to produce a document, without being summoned to give evidence, and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same.

Provisions in the Evidence Act

Sec. 66 of the Evidence Act reads as under:

• 66. Rules as to notice to produce.—Secondary evidence of the contents of the documents referred to in section 65, clause (a) , shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, [or to his attorney or pleader,] such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case.
• Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:—
• (1) when the document to be proved is itself a notice;
• (2) when, from the nature of the case, the adverse party must know that he will be required to produce it;
• (3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
• (4) when the adverse party or his agent has the original in Court;
• (5) when the adverse party or his agent has admitted the loss of the document;
• (6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.

Sec. 89 of the Evidence Act reads as under:

89. Presumption as to due execution, etc., of documents not produced. ––The Court shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law.

Sec. 130 and 131 of the Evidence Act reads as under:

130. Production of title-deeds of witness not a party. –– No witness who is not a party to a suit shall be compelled to produce his title-deeds to any property, or any document in virtue of which he holds any property as pledge or mortgagee or any document the production of which might tend to criminate him, unless he has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he claims.
     
131. Production of documents or electronic records which another person, having possession, could refuse to produce. –– No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession or control, unless such last-mentioned person consents to their production.

Sec. 144 of the Evidence Act reads as under:

• 144. Evidence as to matters in writing. –– Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
• Explanation. –– A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.

---

---