(c) Order any fact to be proved by affidavit.
After the plaint has been filed by the plaintiff and the written statement by the defendant in court, it may appear to a party that the nature of his opponent’s case is not sufficiently disclosed in his pleadings. And every party to a suit is entitled to know the nature of his opponent’s case to enable him to know beforehand what case he has to meet at the hearing.
Every suit contemplates two sets of facts, namely, (1) facts which constitute a party’s case and (2) facts by which a party’s case is to be proved. The first set of facts discloses the nature of a party’s case and the second set forms the evidence of his case.
A party is entitled to know beforehand only the first set of facts, and not the facts which constitute exclusively the evidence of his opponent’s case, for if the second set was also available to the opponent beforehand, it would enable an unscrupulous party to tamper with his opponent’s witnesses, and to manufacture evidence in contradiction, and so shape his case as to defeat justice. The lacuna in the first set of facts mentioned above is furnished by discovery, which may be discovered by interrogatories, discovery of documents or by admissions.
Discovery is the obtaining by one party to an action or suit of information on oath from another party. It is of two kinds—(1) discovery by interrogatories of facts relevant to the issues in the action and within the knowledge of the party interrogated; and (2) discovery of documents relating to the matters in the action and in the possession of the 3 arty.
As said above, it enables a party to ascertain the nature of his opponent’s case or the material facts constituting his case. It proceeds on the principle that every party to a suit is entitled to know the nature of his opponent’s case so that he may know beforehand what case he has to meet at the hearing. It also enables a party to obtain admissions from his opponent to facilitate the proof of his own case.
Discovery, as already stated above, is of two kinds; discovery by interrogatories and discovery of documents.
Discovery by Interrogatories:
A defendant may administer interrogatories to the plaintiff and a plaintiff may administer interrogatories o the defendant, if the nature of the plaintiff’s case as disclosed in his plaint in the former case or the nature of the case of the defendant as disclosed in his written statement in the latter case does not sufficiently disclose the nature of the party’s case.
Before interrogatories are administered to the plaintiff by the defendant or to the defendant by the plaintiff, it is necessary to obtain leave of the court to do so. The object of interrogatories is
(1) To ascertain the nature of your opponent’s case or the material facts constituting his case;
(2) To support your own case, either
(a) Directly, by obtaining admissions, or
(b) Indirectly, by impeding or destroying your adversary’s case.
This results in narrowing the points in issue and also eliminates proving facts which are, admitted.
Interrogatories will not be allowed in the following cases:
1. A party is not entitled to administer interrogatories for obtaining discovery of facts which constitute exclusively the evidence of his adversary’s case of title.
2. A party is not entitled to interrogate as to any confidential communications between his opponent and his legal advisers.
3. A party is not entitled to administer interrogatories which would involve disclosures injurious to public interests.
4. An interrogatory although relevant to and bona fide for the purposes of a suit may be premature, in which case it will not be allowed.
5. Interrogatories must not be fishing in nature, that is to say, they must refer to some definite and existing state of circumstances, and must not be put merely in the hope of discovering something which may help the party interrogating to make out some case.
Any party to a suit by leave of the court may deliver written interrogatories for examination of the opposite parties or anyone or more of such parties, stating at the foot thereof which of such interrogatories each of such persons is required to answer. No party shall deliver more than one set of interrogatories to the same party without an order for that purpose and interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant. (Order XI, Rule 1).
Object of the Interrogatories—to obtain information to destroy opponent’s case:
The purpose of this rule is to enable a party to require information from his opponent to the purpose of maintaining his own case or for destroying the case of the adversary. The main object of interrogatories is to save expenses and shorten the litigation by enabling a party to obtain from his opponent information as to facts material regarding the question in dispute between them or to obtain admission of any facts which he has to prove on any issue which is raised between them.
As a general rule, interrogatories are to be allowed whenever the answer to them will serve either to maintain the case of the party administering them or to destroy the case of the adversary. The power to serve interrogatories as it appears is not meant to be confined within narrow technical limits. It should be used liberally whenever it can shorten litigation and serve the interest of justice.
However, this can be exercised within certain limits. The power to order interrogatories to be served and answer should be used with considerable care and caution, so that it is not abused by any party. A party is entitled to interrogate his opponent with a view to ascertain what case he has to meet and the facts relied on and to limit the generality of the pleadings and find out what is really in issue.
Leave for Interrogation:
On an application for leave to deliver interrogatories, the court shall grant leave as to such interrogatories only which are considered necessary either for disposing fairly of the suit or for saving costs, and in doing so the court shall take into account any offer, which may be made by the party sought to be interrogated, to deliver particulars, or to make admissions, or to produce documents relating to the matters in question. (Order XI, Rule 2).
Interrogatories may be delivered to any member or officer of a corporation or a body of persons, whether incorporated or not empowered by law to sue or be sued. (Order XI, Rule 5).
Interrogatories shall be answered by affidavit to be filed within ten days, or within such further time as the court, may allow. (Order XI, Rule 8).
Where any person interrogated omits to answer, or answers insufficiently, the party interrogating may obtain orders from the court requiring him to answer further either by affidavit or viva voce examination. (Order XI, Rule 11).
Objections to interrogatories by answer:
The party answering any interrogatory may take objection on the ground that it is : (a) scandalous or (b) irrelevant or (c) not exhibited bona fide for the purpose of the suit, or (d) that the matters inquired into are not sufficiently material at that stage, or (e) on the ground of privilege or (f) may take any other ground. (Order XI, Rule 6).
Setting aside interrogatories:
Any interrogatories may be set aside on the ground that they have been exhibited: (a) unreasonably or (b) vexatiously. (Order XI, Rule 7).
Striking out interrogatories:
Any interrogatories may be struck out on the ground that they are : (a) prolix, (b) oppressive, (c) unnecessary, or (d) scandalous. (Order XI, Rule 7).
Any application for setting aside or striking out interrogatories may be made within seven days after service of the interrogatories.
Discovery of documents:
Any party may, without filing any affidavit, apply to the court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. The court may either refuse or adjourn the application if satisfied that such discovery is not necessary or not necessary at that stage of the suit, or make such order as may be thought fit.
But such discovery shall not be ordered when and so far as the court shall be of opinion that it is not necessary either for fairly disposing of the suit or for saving costs. (Order XI, Rule 12).
Jurisdiction of Court:
The suit being for enforcement of the security, it could be filed only where the property is situated. In case the defendants desired to raise the question of jurisdiction as the mortgage was fictitious, they could do so.
But for that it was not necessary to summon the disciplinary proceedings pending against the bank official even if one of the charges is that the security furnished by defendant No. 5 was fictitious. It could be established by leading evidence and cross-examining the witnesses. In our opinion, the defendants have by this method attempted to delay the proceedings.
Classes of Documents subject to Discovery:
Documents in respect of which discovery is claimed may be divided into two classes:
(a) Those which the adversary is entitled to inspect and (b) Those which he is not entitled to inspect. The adversary is entitled to inspection of all documents which do not come within class (b).
Where a party is ordered to make his affidavit of documents, he must set forth in the affidavit all documents which are or have been in his possession or power relating to all matters in question in the suit. The affidavit to be made by a party against whom an order of discovery has been made shall specify which of the documents therein mentioned he objects to produce and shall set forth the grounds of objection. There are three grounds on which production of documents can be resisted as of right. They are:
(1) A party is not bound to produce for the inspection of his opponent documents which of themselves evidence exclusively the party’s own case of title;
(2) A party is not bound to produce any confidential communications between him and his legal adviser; and
(3) A party is not bound to produce any public official document, if its production would be injurious to public interests.
A party who is directed by court to make discovery of documents should file an affidavit specifying which of the documents he objects to produce, or state on oath if he has no such documents. [Order XI, Rule 13].
Production of documents:
The court may at any time during the pendency of any suit order any party to produce on oath any documents in his possession or power relating to the suit. [Order XI, Rule 14].
Production of documents—Order has to be speaking one:
Where order was passed without assigning any reason on mere ground that counsel for opposite party had refused to address argument when opposite party contested application by filing reply held that such order was invalid.
The court may, on the application of any party to a suit at any time, make an order requiring any other party to state by affidavit whether anyone or more specific documents 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 documents specified in the application, which relate to matters in question in the suit. [Order XI, Rule 19(3)].
Inspection of documents referred to in pleadings or affidavit:
Every party to a suit may 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, 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.
The party not complying with such notice shall not afterwards be allowed to put any such document in evidence on his behalf in such suit unless he satisfies the court that such document relates only to his own title, he being a defendant to the suit, or that he had some other sufficient cause or excuse. (Order XI, Rule 15).
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, account books or books in constant use for 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. (Order XI, Rule 17).
Order for inspection:
Where the party receiving notice omits to give such notice of a time for inspection or objects to give inspection, or offers inspection elsewhere that at the office of his pleader, the court may, on the application of the party desiring it, make an order for inspection at such place and in such manner as it thinks fit, but no order will be made where the court thinks that it is necessary either for disposing fairly of the suit or for saving costs. [Order XI, Rule 18(1)].
Documents not referred to in pleading or affidavit:
An application to inspect documents, other than those referred to in the pleadings or affidavits shall be founded upon an affidavit showing of what documents 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 if it is of opinion that it is not necessary either for disposing fairly of the suit or for saving costs. [Order XI, Rule 18(2)].
In case of inspection of any business books the court may 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 stating whether or not there are in the original book any and what erasures, interrelations, or alterations. The court may notwithstanding that such copy has been supplied, order inspection of the book from which the copy was made.
Where on an application for an order for inspection privilege is claimed for any document, the court may 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. [Order XI, Rule 19(1) and (2)].
A discovery is said to be premature when the right to the discovery of any kind of inspection sought depends upon the determination of any issue or question in dispute in the suit or 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.
In such case the court may order that such issue or question in dispute in the suit be determined first and reserve the question as to the discovery or inspection. (Order XI, Rule 20). It is discretionary to postpone discovery and inspection until some issue is determined but there is no contravention in ordering discovery or inspection before any issue is determined.
Non-compliance with order of discovery:
When any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, 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. Where an order is made dismissing the suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action. (Order XI, Rule 21).
The provisions of Order XI, Rule 21, C.RC. are not applicable to cases of non-compliance with the order for production of documents under Order XI, Rule 14, C.RC. An order passed by the Court for the production of documents is an order under Order XI, Rule 14, C.P.C.
The suit cannot be dismissed for non-compliance of the directions of Order XI, Rule 14, C.P.C. under Order XI, Rule 21(2), C.P.C. and at best the Court could draw an adverse inference because of non-production of documents by the plaintiff.
Application for striking out of defence not allowed on ground of failure to file affidavit of documents by defendant:
Where repeated opportunities were given to defendant to file affidavit of documents. But he subsequently said affidavit was filed within time fixed by High Court. As such, it could not be said that no affidavit of documents was filed in terms of order of Court.
Hence, default clause had never taken effect and hence defence could not be striked out. As said affidavit had not conformed to requirements of provisions, hence, it could not be accepted as valid affidavit. But for the interest of justice, defendant was given time to file proper affidavit as he was not found guilty of obstinacy and contumacy.
Further and better affidavit of documents:
If a party states in his affidavit of documents that he has no documents relating to the matters in question in the suit other than those set forth in the affidavit, his oath is conclusive, and the other party cannot cross-examine upon it, nor adduce evidence to contradict it, nor administer interrogatories asking whether he has not in his possession or power documents other than those set forth in his affidavit.
The only case in which the court may require a party to make further and better affidavit of documents is: (i) where it appears from the affidavit itself, or from the documents disclosed therein, or from the pleadings, that the party has other documents in his possession or power; or (ii) where the party ordered to make affidavit of documents has misconceived his case so that the court is practically certain that if he had acted on a proper view of the law he would have disclosed further documents.