Saji Koduvath, Advocate, Kottayam.

A puzzling question: Is ‘discovery’, under Rule 12 of Order XI, CPC, an inevitable ‘pre-step’ to order ‘production’ under Rule 14 of Order XI?

Answer: Yes.

The probe is surfaced for it is not specifically stated either in Rule 12 or in Rule 14 that the ‘discovery’ under Rule 12 is a ‘condition precedent’ for ordering ‘production’ under Rule 14; though obviously there is a nexus between ‘discovery’ and ‘production’. The sequence in which these provisions are arrayed also gives us cue to answer this problem.

Order XI Rules 12 & 14: And the apparent anomalies that seek explanations

Resolutions and Propositions

Analysis of Rule 12 and 14 impeccably establishes complementarity between these provisions, and unerringly settles that ‘Discovery’ of documents under Rule 12 of Order XI is an inevitable condition precedent for ‘Production’ of documents under Rule 14, as shown under:

1. Rule 12 (for discovery) expressly allows a party to the suit to apply the Court for an order directing any other party to make ‘discovery on oath’.
2. The party against whom discovery (on oath) is applied for is required, to file affidavit (under Rule 13). Rule 13 further requires him to place his ‘objections to produce’.
3. Rule 12 directs that the documents sought for must relate to matters in question; that on the hearing of such application the Court may either refuse or adjourn the same; and that if the court is satisfied that such discovery is not necessary, make such order, as the court thinks fit.
   • Though ‘production’ under Rule 14 is the serious matter when compared to ‘discovery’ under Rule 12, there is no provision in Rule 14 (as in Rule 12) for –
     • (i) applying for production;
     • (ii) placing objections or filing affidavit;
     • (iii) directing hearing by court, and passing an order as the court thinks fit.
4. Failure to produce affidavit under Rule 12 invites stringent actions under Rule 21 (suit dismissed, defence struck out, etc.).
   • (i) Effect of non-production of documents under Rule 14 is not specified in R. 21;
   • (ii) court can, in such an eventuality, take adverse presumption only, (under Sec. 114, Illus.- g of the Evidence Act).

We see significant and severe actions as regards ‘discovery of documents’ under Rule 12 (that is, filing affidavit and objection, hearing, dismissal of suit, striking  out defence, etc.). And, no such significant actions are attached to Rule 14. Why?

• The only answer is that the legislature took Rule 12 and 14 as concomitant provisions. That is, ‘production’ of a document under Rule 14 comes into consideration only if it is ‘discovered’ under Rule 14.

Legislative Intention – Concordance Between ‘Discovery’ and ‘Production’

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.

Do the words “at any time” in Rule 14 indicate – it is independent from Rule 12?

• No.

Rule 14 reads as under:

• “It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto ….. “

It is definite – the words “at any time during the pendency of any suit,” only emphasise-

• that a party to the suit has no vested right to seek ‘production’ under rule 14, soon after a document is discovered under rule 12; and
• that wide-open discretion is given to the court for ordering production under rule 14, at any time.

Documents Referred to in “Pleadings or Affidavit”; Can Production be Ordered?

Now, a question may reasonably and logically arise – Assume, certain relevant documents are referred to in “pleadings or affidavit”; can’t the court order production of those documents (directly) under Rule 14, on application of the other party?

• Strictly speaking, No – because of the specific provisions of the CPC as to inspection (and to take copies) of documents referred to in pleadings or affidavits in Order XI rule 15.*
  • ^{* Note: The rule is that general provisions should yield to specific provisions (J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. State of U.P., (1961) 3 SCR 185; U.P. SEB v. Hari Shankar Jain, (1978) 4 SCC 16; Commercial Tax Officer, Rajasthan v. M/S Binani Cement Ltd., (2014) 3 SCR 1).}
• It goes without saying that the permission for taking copies is provided for ‘exhibiting’ the same by the party concerned, as part of his evidence.
• Rule 15 Order XI CPC reads 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.”
• See blog: Notice to Produce Documents in Civil Cases
• Proof of Documents & Objections To Admissibility – How & When?

If Admitted in Pleadings or Evidence that Document is in his Possession; Can Production be Ordered under S. 151?

• Yes; it can be under inherent power. But, it must be remembered that because of the specific provisions of the CPC as to inspection (and to take copies) of documents referred to in pleadings or affidavits in Order XI rule 15, it may not be proper for a party to invoke Sec. 151 – though the power is open to the Court. The Court can also invoke Sec. 165 of the Evidence Act.
• Note:
  • Order XI rule 12 speaks as to discovery of documents – (and not documents in ‘possession of‘ a party).
  • Order XI rule 15 speaks as to documents – ‘referred to‘ (and not documents in ‘possession of‘ a party).

A party in “possession of a document” can be directed to produce the same

• A party in “possession of a document” (Distinct from “Documents Referred to in Pleadings or Affidavits” – Order XI rule 15) can be directed to produce the document. The plaintiff could file an application calling for the said document from the defendant.

In Anil Rishi v. Gurbaksh Singh, (S.B. Sinha, P.K. Balasubramanyan) it is held (obiter) as under:

• “A party in possession of a document can always be directed to produce the same. The plaintiff could file an application calling for the said document from the defendant and the defendant could have been directed by the learned Trial Judge to produce the same.”

Does Sec. 30 CPC, Give an Independent Right to Order Production of Documents

Does Sec. 30 CPC (the substantive provision) give an independent right, is another question that may arise in this matter. The beginning portion of the section itself makes it clear that the section is “subject to such conditions and limitations as may be prescribed”. Therefore, it is clear that the power of the court to order production of document, under Sec. 30, is subject to the provisions in O. XI r. 12 and 14.

Sec. 30 CPC reads as under:

“Sec. 30 – Power to Order Discovery and the like.

• Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion or on the application of any party-
• (a) make such Orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;
• (b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;
• (c) Order any fact to be proved by affidavit.”

Order XVI Rule 21, CPC (Madras & Kerala Amendment)

Yet another provision to be looked into in this matter is Order XVI Rule 21 CPC (Madras & Kerala Amendment). It reads as under:

• “Rule 21 – Rules in case of parties appearing as Witnesses: (1) When a party to a suit is required by any other party thereto to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as applicable.
• (2) When a party to a suit gives evidence on his own behalf the Court may, in its discretion, permit him to include as costs in the suit a sum of money equal to the amount payable for travelling and other expenses to other witnesses in the case of similar standing….”

It is plain – Order XVI deals with ‘Summoning and Attendance of Witnesses’; and that the Madras and Kerala amendment on Order XVI Rule 21 CPC does not deal with the power of the court to Oder ‘Production of Documents’.

Can a Party Seek Discovery and Production in One Petition?

Technically it may not be illegal, altogether. But, it will be improper if the court passes orders on both prayers simultaneously, especially since the court has to order production.

The ‘Scheme’ of CPC

The ‘scheme’ of the CPC is also germane.

• We can compare the provisions in the CPC as to production of documents with calling for the opposite party as a witness.
  • There is no specific provision in the CPC that allows a party to the suit to summon the opposite party as a witness – though court has discretion (Order 16 rule 14 CPC), to ‘examine any person, including a party to the suit’ after 1976 Amendment of the CPC.
• (See: Kishori Lal v. Chunni Lal, ILR 31 All. 116, Narayana Pillai v. Kalyani Ammal, 1963 KLT 537,  Muhammed Kunji v. Shahabudeen, 1969 KLT 170.)
• See blog: Can a Party to Suit Examine Opposite Party, as of Right?

It is clear, the scheme of the CPC is-

• (i) not to initiate coercive steps, against a party who does not examine himself as a witness, or withholds a document;
• (ii) but to take adverse presumption under Sec. 114 Evidence Act.

Notice and Summons to Produce Documents in other Provisions of the CPC

Besides the powers of the court under Sec. 165 of Evidence Act, no doubt, the provisions of Order XVI rule 14 (summons to witness to produce documents) and Order XI rule 15 and Order XII rule 8 (notice to the other party to produce documents) provide for production of documents independent of O. XI r. 12 and O. XI r. 14. These enabling provisions do not bestow a vehicle to the court to ignore the provisions under O. XI r. 12 and O. XI r. 14; for, the judicial principle – the general provisions should yield to specific provisions.

Order XVI 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.
• Order XI rule 15 and Order XII rule 8 are the provisions in the CPC to give notice to the other party to produce documents (for ‘inspection’ and ‘show court’, respectively).

Discovery is Made to Aid the Production of Documents

The proposition, ‘production of a document under Rule 14 comes into consideration only if it is ‘discovered’ under Rule 12′ can be fully supported by the decision of the Bombay High Court, in Manager, Ramkrishna Ramnath Bidi v. First Civil J. First Class, Nagpur, AIR 1959 Bom 181 (J Mudholkar and S Kotwal, JJ).

Referring O. 11 of the CPC, it is held in this decision as under:

• “In its first eleven rules, Order 11 deals with the delivery of interrogatories …. Then it makes provision for the discovery of documents in rules 12 and 13. After discovery is provided for, it deals with the subject of production of documents in Rule 14. Then provision is made for the inspection of the documents produced in Rules 15, 17 and 18 of the Order.
• Reading the Order as a whole, it seems to us clear that the provisions made in the Order for discovery and inspection are only provisions made in order to aid the production of documents before the Court, particularly the provisions regarding ‘discovery’.”

Views of the Apex Court

The decision, M. L. Sethi v. R. P. Kapur, AIR 1972 SC 2379, emphasises that it is not necessary for an applicant under Order XI rule 12 to specify in detail the documents sought to be discovered when they are in the hands of the other side; and that the claim of privilege can be considered only after discovery, when the stage of production is reached. It is also made clear that if the document is relevant for the purpose of throwing light on the matter in dispute, though it might not be admissible in evidence, it can be put to discovery under rule 12.

It is true, our Apex Court, did not give effect to the proposition that compliance (discovery) of Rule 12 is a condition precedent to order production under Rule 14 in Basanagouda v. SB Amarkhed, AIR 1992 SC 1163, when it proceeded as under:

• “The Court, therefore, is clearly empowered and it shall be lawful for it to Order the production, by any party to the suit, such documents in his possession or power relate to any matter in question in the suit provided the Court shall think right that the production of the documents are necessary to decide the matter in question.” 
  • Note: Whether ‘discovery under Rule 12 is a condition precedent for ordering production of documents under Rule 14’ was not considered in this case.