Discovery & Inspection,

Order 11
INTRODUCTION
● One of the essential elements of the rule of law is its procedures.
● To have a fair trial equal opportunities shall be given to both parties to access
the documents related to the case.
● After plaint has been filed by the plaintiff and written statement by the
defendant, if the parties feel that proper facts were not disclosed in the suit,
either of them can ask for the documents to obtain proper facts of the case.
● There are two types of facts:-

I. ‘Facto probanda’ - the facts which constitute a party's case.

II. ‘Facto probantia’ - the facts which will be considered as evidence if proven.

● Under the procedure of discovery, only facto probanda can be asked by the
parties.
Order 11: Discovery and Inspection
● “DISCOVERY” means to compel the opposite party to disclose what he has
in his possession or power. It is thus a compulsory disclosure by a party to an
action of facts or documents on which the other side wishes to rely.
● It is a pre-trial procedure aspect wherein each party is given an opportunity to
obtain evidence from the opposite party or parties or it is a formal process
wherein the parties get a chance to exchange information regarding the
witnesses and evidence which will be presented before the court during the
trial.
● The main purpose of discovery is to make the parties aware of the case, that
means there shall not be any ambiguity between the parties while the trial is
going on.
INTERROGATORIES: RULE 1-11, 21,22
● “ Interrogatories” means to ask questions or to make inquiry closely or
thoroughly.
● Where a party to a suit requires information as to facts from the opposite
party, he may administer to his adversary a series of questions. These
questions are called interrogatories.
● They are delivered in order to ascertain the nature of his opponents case
either for the purpose of proving or supporting his case for impeaching or
destroying the case of the other side.
● Under CPC this is known as right to obtain information by the parties.
DISCOVERY OF INTERROGATORIES- RULE 1
● It means when the party while giving answers to the interrogatories they
discloses the nature of the case with affidavit.
● The main object of interrogatories are:

I. to know the nature of case of the opponent

II. to support his own case and make stronger by making the other party by
obtaining admissions.

III. to destroy the case of the opponent.

Particular interrogatories to be submitted - Rule 2
● The willing party to deliver interrogatories shall apply for leave to the court
and shall submit the proposed interrogatories to the court.
● As per this rule the court shall decide the matter within 7 days of filing the
application by the party.
● While deciding the matter the court shall take into consideration the following
points:
a. Any offer which may be sought by the party to be interrogated to deliver
particulars.
b. To make an admission
c. To produce documents associated with the matters in question
d. Any of them
● The court shall consider whether it is necessary in a particular matter to
dispose of the suit fairly or for saving costs.
● After one set of interrogatories are served, the parties can not serve another
set without permission of the court.
● The set of questions shall be question of fact rather than the question of law.
● Interrogatories shall not be allowed at the premature stage of the case.
● Within 10 days of the service , the affidavit to answer shall be filed by the
party to whom the interrogatories were administered. If the party fails to
comply with such order of the court then the suit will be dismissed if the party
is plaintiff or the defence can be struck off if he is the defendant.
WHO MAY ADMINISTER INTERROGATORIES?
● Any opposite party can apply for an order for allowing the party to deliver
interrogatories to another party/ies in the suit.
● It means that plaintiff can apply for an order from the court to be administered
to the defendant.
● The defendant also can do the same . in some case the plaintiff/ defendant
can administer the interrogatories to the co-plaintiff/ co-defendant.
 AGAINST WHOM INTERROGATORIES MAY BE
ALLOWED?
● Generally, interrogatories maybe delivered to a party to a suit. Hence, it may be allowed against plaintiff or defendant and also towards
third party, legal representatives.
● As per Rule 5, any party to a suit can be a:-

I.corporation II. body of persons

● In instances where a corporation or organization is a party to the suit, interrogatories can be directed towards its officers or members
who possess knowledge of relevant matters within their official capacity.

Example 1: A property dispute. The plaintiff might seek interrogatories from a neighbor who witnessed a boundary encroachment incident to
gather details about the event and the neighbor's observations.

Example 2: A case involving an accident. The plaintiff might want to issue interrogatories to the medical examiner who performed an autopsy
on the deceased to clarify the cause of death and any relevant findings.

However, certain restrictions apply to who can be targeted with interrogatories:

1.Persons with mental incompetence: Interrogatories cannot be directed at individuals judged incapable of understanding the questions or
giving reliable answers.

2.Deceased persons: Obviously, interrogating a deceased person is impossible. However, their written statements or communications might
be introduced as evidence through other means.

3.Privileged communications: Confidential information protected by attorney-client privilege or other legal exemptions cannot be sought
through interrogatories.
OBJECTIONS TO INTERROGATORIES- RULE 5
● A party may object to answer an interrogatory if it is:
● scandalous,
● irrelevant,
● Malafide,
● Immaterial,
● privileged,
● questions are not bonafide
● Matters which are inquired into are not sufficiently material at this stage
● On the ground of privilege
● Any other ground
 RULES AS TO INTERROGATORIES
● While replying to the interrogatories, if the opposite party does not give sufficient
answer, or ignore to give an answer, then the party who administered the
interrogatories can apply for an order from the Court for ordering the other party to
reply sufficiently, or reply further as the case may be. The Court shall pass such an
order to the other party after giving them sufficient opportunity to be heard. If the
party who fails to reply is the plaintiff, then the suit can be dismissed for want of
prosecution. If the party is the defendant, then it will be considered that the fact has
not been defended.
● As per Rule 22 of Order XI, the opposite party can use the answers to the
interrogatories as evidence, partly or in whole. But at the same time, the court shall
check whether the part of the answer which has been considered as evidence by
the party is connected to the whole answer, or is it adverse in nature.
● As per Rule 6, the parties can object some of the interrogatories but not all. If the
parties want to object to the interrogatories, then within seven days of service of
such interrogatories, the party shall file the application of the opposition as per Rule
7 of the Order XI of the Code.
● At the same time as per Indian Evidence Act, 1872, if the parties refuse or
object to produce any particular document or information in the court, then
while using it as an evidence they shall inform the court and other parties.
Without the consent of the court, such documents or information which were
refused initially can not be used as evidence later, unless it is lawful to do so.
INTERROGATORIES WHICH MAY BE ALLOWED
● Interrogatories which are made to be related to “any matters in issue” can be
questioned to another party. By “matter,” it means a question or an issue
which is related to the dispute in the suit. It need not be an issue which arises
from the dispute.
● Interrogatories shall not be disallowed or discarded merely on the ground that
there are other ways to prove the fact in question. Interrogatories are not the
same as pleading. They need not be material facts on which party will be
relying, they can be evidence by which parties want to establish a particular
fact at the trial.
INTERROGATORIES NOT ALLOWED
● Interrogatories are used when the facts laid down in the suit are not clear. However, under
certain circumstances the discovery of the facts can not be applied if:-
1. it constitutes evidence of the opposite party;
2. it involves the disclosure of public information or interests;
3. it contains any privileged or confidential information.
● Interrogatories which are in the nature of fishing or roving enquiries are not allowed.
Questions in the nature of cross-examination shall not be asked. Questions of law are not
permitted. Questions which are not bona fide or irrelevant to the case shall not be asked.
Setting aside and Striking off Interrogatories can be made on the following grounds (Rule
7):
● Unreasonably or vexatiously exhibited;
● Prolix, Oppressive, Unnecessary or Scandalous.
The Application for setting aside or striking off interrogatories shall be made within 7 days after
service of interrogatories.
INTERROGATORIES WHICH ARE OF ‘FISHING’ IN
NATURE ARE:
● Overly broad and vague: They don't target specific facts or details relevant to
the case and instead seek a general sweep of information without clear
purpose.
● Not focused on the issues in dispute: They probe into irrelevant matters,
personal opinions, or peripheral details that have no bearing on the outcome
of the suit.
● Unnecessarily burdensome: They demand an excessive amount of
information or delve into complex topics that require significant time and effort
to answer, potentially harassing or unfairly burdening the responding party.
Examples of disallowed questions:
● "What is your opinion on the fairness of the legal system?" (Irrelevant and seeks personal
opinion)
● "Tell me everything you know about the plaintiff's family history." (Fishing and overly broad)
● "Please list all the documents you have ever created in your life." (Burdensome and
irrelevant)
Allowed questions:
● "When and where did you meet the plaintiff?" (Relevant to establishing a connection)
● "What specific conversations did you have with the plaintiff regarding the contract?"
(Focuses on key facts)
● "Do you have any documents related to the delivery of the goods?" (Seeks specific relevant
information)
CASE LAWS
In the case of Govind Narayan and Ors. vs. Nagendra Nagda and Ors., the Rajasthan High Court observed the
importance of interrogatories and the time period in which it shall be filed by the party. The court held the following:

● Reading section 30 with Order XI Rule 1 of the Code, it makes clear that the courts have the discretion to allow
service on interrogatories at any stage of the suit. The court confers wide discretion, at the same time the
discretion shall be exercised judiciously.
● The information asked under interrogatories shall have nexus with the dispute in question.
● The stage of the suit shall be significantly considered by the court. At the same time, it is to be understood that
the main purpose of this procedure is to save time and cost by encompassing the issues or narrowing down the
disputes.

In a recent case of 2018, Samir Sen v Rita Ghosh, the petitioner filed an application under Order XI after five months
of the closure of the plaintiff’s – respondent’s evidence in the trial court. Because of the delay, the lower court
dismissed the application for which an appeal has been filed by the aggrieved. The Jharkhand High Court observed
that as per the scheme laid down for the trials in the Order XIII CPC, it requires parties to produce their original
documents as per their claim founded during the time of presentation of the plaint or filing of the written statement.
And because of this, the interrogatories are given under Order XI of the Code. And held that the defendant failed to
file the application on time, thereby the order of the trial court was right and the writ petition was dismissed.
DISCOVERY OF DOCUMENTS: RULE 12-14
● When the adversary party is simply compelled to disclose the documents which are
under its possession or power, then that is called as the discovery of documents.
The discovery of documents is covered under the Rule 12-14 Order XI of the code.
● Discovery is of two kinds, discovery by interrogatories and discovery of documents.
● Rule 12 enables a party without filing an affidavit to apply to the court for the
purpose of compelling his opponent to disclose the documents in the possession or
power, relating to any matter in question in the suit.
● If the court makes an order for discovery the opposite party is bound to make an
affidavit of documents and if he fails to do so he will be penalise specified under
Rule 21.
● Any party to a suit under oath may apply for an order from the court for the
discovery of documents which are related to the matter in question of the suit from
the adversary party may seek discovery.
● The document which is related to the evidence of the adverse party can not
be ordered by the court. Such orders can be detrimental to the administered
party which is restricted under the code.
● Privileged documents are covered under “crown privilege” which is based on
the doctrine of “public welfare is the highest law”. However, even if this
doctrine is given the importance, it does not mean that justice shall not be
paramount. Thereby when parties use it as an umbrella of defence, then
under such circumstances, the court has the right to verify the admissibility of
such defence. After checking the document, the court can decide on the
matter. Mere assertion by the party will not be entertained or accepted by the
court.
 GENERAL RULES FOR THE DISCOVERY OF
DOCUMENTS
The general rules for the discovery of the documents are as follows:

1. Any party can get an order from the court for the discovery of the documents or for inspection of documents.
2. It is the discretion of the court to pass such an order.
3. The court can use its power any time during the suit, either suo moto or by the application of the party.
4. The court shall not pass an order for the discovery, inspection or production until the written statement has
been filed by the defendant.
5. No such order shall be passed if the application is made by the defendant until he has not filed a written
statement.
6. Discovery of the document shall not be made if the court is not of the opinion that this order will lead to fair
disposal of the suit or useful for saving cost.
7. A party to whom an order of discovery of documents has been passed, as a general rule, shall produce all
the documents which are under his possession related to the suit.
8. If the parties are taking any legal protection under the privileges provided under the code, then the court
shall verify such documents and give the protection.
9. Failure to comply or default from the side of the parties to the order for discovery, production or inspection,
can lead to adverse inference on the party.
● While the discovery of documents is being asked, two conditions need to be
taken care of by the court:-
1. The discovery ordered is necessary for the fair disposal of the suit.
2. The discovery will save costs.
● The party can raise an objection if the documents required to submit comes
under the purview of the privileged documents.
● However, objecting by filing an affidavit would not be enough, the party who is
objecting also needs to give proper reasoning behind such objection. The
proper reasoning will enable the court to decide the objection raised by the
party. It is open to the court to inspect the documents and check the viability
of the objection raised by the party. Another objection which can be filed is
that discovery is not necessary at this stage of the suit.
ADMISSIBILITY OF DOCUMENT
● The documents which are asked under the discovery of documents are not always
admissible in court. The documents may be admissible in the case if they are relevant to
the case and which may have some impact on the issues dealt under the case.
● In Gobinda Mohun v. Magneram Bangur & Co, it was held that:
● “Rule 12 of Order 11 is considerably wider than Order 13, Rule 1 of the Code. The right to
obtain discovery of an adversary’s documents is a very wide one and is not limited merely
to those documents which may be held to be admissible in evidence when the suit is
ultimately tried.
● If an order for discovery is made under Rule 12 of Order 11 all the documents relating to
the case should be embodied in the affidavit of documents by the person against whom the
order for discovery is made. If however, the defendant considers that he is entitled to
protection in respect of the production of any particular documents which may be entered in
the affidavit under Order 11, Rule 13 of the Code, he will be at liberty to raise such objection
at the proper stage of the proceedings if and when he is ordered to produce such
documents under Order 11, Rule 14 or to give inspection of them under Order 11, Rule 18.
● The Calcutta High Court sought to distinguish the Judgment of the A.P. High
Court in P. Varalakshmamma v. P. Bala Subramanyam 1958 wherein it was
held that:
● It is lawful for the Court, under Order 11, Rule 14, Civil P.C., at any time
during the pendency of any suit to order the production of a document. The
words “at any time” are very significant and important. Rule 14 does not
require that the order for production should be made only after an order of
discovery is obtained under Order 11 Rule 12 C.P.C.”.
● Documents disclosing evidence - The document which is related to the
evidence of the adverse party can not be ordered by the court. Such orders
can be detrimental to the administered party which is restricted under the
code.
● Privileged documents- Privileged documents are covered under “crown
privilege” which is based on the doctrine of “public welfare is the highest law”.
However, even if this doctrine is given the importance, it does not mean that
justice shall not be paramount. Thereby when parties use it as an umbrella of
defence, then under such circumstances, the court has the right to verify the
admissibility of such defence. After checking the document, the court can
decide on the matter. Mere assertion by the party will not be entertained or
accepted by the court.
● Oppressive discovery - While ordering the discovery of the documents it
shall not be an oppressive order by the court. The court while using its
discretion power shall consider two questions:
1. Whether it is important to order such discovery;
2. Whether it is impossible for the administered party to give the documents
ordered under discovery.
INSPECTION OF DOCUMENTS- RULE 15-18
● Under Order XI Rule 12-21 of the CPC, the rule for the inspection of discovery is
provided. As per Rule 12 of the code the party can compel other parties to produce
the documents without filing an affidavit to apply to the court, relating to any matter
of question-related to the suit. However, such documents need not be admissible in
court unless they give out some connection in a matter of controversy.
● As per the Rule 15-19 of Order XI of the code, the inspection of documents can be
divided into two categories:
1. The documents which are referred to in the affidavits or pleadings of the parties.
2. The documents which are not referred to in the pleadings of the party but are in the
power or possession of the parties.
And the parties are allowed to get the inspection of the former category documents, not
the latter one.
Premature discovery

● As per Rule 20, a discovery is termed as premature discovery or inspection:

● 1) When the right to discovery is based on the determination of any issue or
question in dispute; or
● 2) For any reason, it is desirable that any issue or question in a suit should be
determined before deciding upon the right of discovery.
Non-compliance with order of discovery or inspection

As per Rule 21, the order of the court is binding in nature, and the parties who do not comply shall be liable to pay the
penalty. Hereby, we can understand that the intent of the legislature to provide such provision is:

1. To compel the parties to disclose all the material documents and facts on oath.
2. To restrict the parties from coming up with new documents which are actually in power or possession of the
party during the trial.

The court has the discretion to postpone a premature inspection or discovery. Under such circumstances the first
thing court shall do is to determine that question or issue and afterwards, deal with the discovery. The main logic of
this provision is to enable the court to distinguish between the difference of deciding an issue in suit from deciding the
suit itself. However, it needs to be kept in mind that this provision will not work if the discovery in itself is necessary for
solving the issue or question.

The importance of such provision is that if the defendant denies complying with the provision it will be deemed that
the defense from the defendant’s side will be struck off and that will restore the position of the defendant to where he
had been as if he has not defended. In the case, if the plaintiff does not comply to the provisions then it will lead to an
adverse effect that means the plaintiff will disentitle to file a case as a fresh suit on the same cause of action and res
judicata will be applicable. Therefore, non-compliance will impact the case adversely.
CASE LAWS
● In the case of G. Sudhaker Reddy vs. M. Pullaiah, the Andhra High Court
clarified that when marking a document during trial, the court primarily
considers whether the document is relevant to the facts of the case and
helpful for effective adjudication 3. The court does not delve into the merits of
the document at that stage.
● National Assn. of Operative Plasters v. Smithies 1906 AC 434
It establishes that parties cannot object to discovery solely based on potential
incrimination. The court’s approach prioritized transparency and the pursuit of
relevant evidence