Comparative Study of the Provisions for Discovery and

Inspection of Documents in civil Proceedings:

Submitted by

Sneha Mukherjee

Group:C; PRN: 20010223139; Batch: 2020-2025; Programme: B.A. LL.B.

Symbiosis Law School, Noida

Symbiosis International (Deemed University), Pune

In

July, 2023

Under the guidance of

Mr. Shamik Narayan (Course in charge)

Introduction:
In every judicial system, civil suits are the most common forms of disputes that arise among
individuals or business entities 1(Rule 5 Order XI). This is where the personal rights of one
person are harmed by the actions of another. In such a situation, the principles of justice
entitle both parties to get a fair chance of trial where both can present their arguments before
the adjudicator. This requires that those papers that are necessary for the suit must be
available with both parties. After the plaintiff has filed his plaint and the written statement has
also been produced by the defendant, if it is felt that relevant documents have still not been
presented in the suit, either parties can demand the relevant documents that are serving facts
of the suit. Facts may be of two types:
1. Facto Probanda- Facts constituting the case of a party
2. Facto Probantia- Facts to be taken as evidence if they are proven.

1
The Code of Civil Procedure 1908
2
Generally, Facto Probanda is relevant to be discovered. In this article, a comparison has been
made to understand the difference between the discovery and inspection of the documents
along with explanation of the orders and rules under the Code of Civil Procedure 1908 as
well as case laws.

Order 11- Discovery of Documents:

This is a procedural aspect pre-trial in nature which gives every party the opportunity to
gather the information in terms of evidence from the opposing party. The types of discovery
are:
1. Interrogatories
2. Requests for producing documents and the inspection of the same
3. Requests made for the admission of the facts
4. Making Depositions
5. Subpoenas Duces Tecum
6. Mental and Physical examinations
This section elaborates on the extent of inspection that a party can make on the evidences
with the intervention of the court. this is not mandatorily to be made admissible in front of the
court. The main purpose of this order is to oblige a party to produce all the factual documents
which can serve as evidence. 3If this is done through questions, it is called “interrogatories”
but when a request is made for production of documents, it is termed as “discovery”

Interrogatories:
S. 30 Order XI, Rule 1, 11,21 and 22 of the CPC talks about the interrogatories. These are
questions of facts not taken to be legal conclusions. 4The party against whom there are
interrogatories, is obliged to give a written reply under oath. This discloses the affidavit along
with the nature of the suit. After the defendant has filed his written statementent, when the

2
RETHINKING THEORETICAL FOUNDATIONS OF THE CODE OF CIVIL PROCEDURE: PROSPECT AND RETROSPECT
J.K. Das
Journal of the Indian Law Institute
Vol. 53, No. 1 (January-March 2011), pp. 1-31 (31 pages)
Published By: Indian Law Institute

3
Reviewed Work: CIVIL PROCEDURE C.K. Takwani

Review by: V. S. Deshpande

Journal of the Indian Law Institute
Vol. 26, No. 4 (October-December 1984), pp. 597-599 (3 pages)
Published By: Indian Law Institute

4
The fundamental principles of the law of civil procedure
WJ Habscheid
The Comparative and International Law Journal of Southern Africa
Vol. 17, No. 1 (MARCH 1984), pp. 1-31 (31 pages)
Published By: Institute of Foreign and Comparative Law
summon is made for both the parties and the hearing is about to begin, if there is found to be
a lacuna in the facts, the documents can be sought by applying under this section.
For this the party must apply for leave to the court. According to Rule 2, within 7 days, the
court shall decide on such application.
In deciding so, the court shall consider interrogation of the party against whom such an
application is made, whether the documents are relevant and whether it is important to
dispose the suit for saving costs. Interrogatories are not allowed when the case is at its
premature stage.
The party is obligated to give an answer within 10 days subsequent the service. On failing to
do due compliance with the orders given by the court, it can strike off the entire defense if the
fault is on the defendant side or dismiss the case if the plaintiff is the defaulter.

Rules as the interrogatories:

The filing is according to Appendix C Form No. 2 CPC and the reply is according to
Appendix C Form No. 3 CPC.
Rule 22 Order XI states the answers given to the interrogatories can be used as evidence with
the court’s consideration.
Rule 6 gives the parties right to object partly within a period of 7 days of the interrogatories
being served, the filing of which shall be per Rule 7 Order XI CPC.

Discovery:
Rule 12-14 of Order XI CPC compels the adversary party to disclose the documents.
5
However, it must be considered that the process is necessary for fair trial and saves cost. This
is open to objection by the opposing party. However, it is up to the court’s discretion to
decide its validity. The admissibility of these documents has been dealt with in these cases:
In Govinda Mohun v Magnerum Banngur and Co., the court propounded that "Rule 12
Order no. 11 is broader than Order no. 13, Rule 1”. A defendant can object to disclosing a
document based on its relevance to their title. However, if the document is relevant to the
plaintiff's title, the objection is invalid. If there is issued an order for the discovery under Rule
12 Order no. 11, every document relevant must be included as a part of the affidavit.
However, if it is believed by the defendant that certain documents in the affidavit under Order
no. 11, Rule 13 should be protected, they can raise such an objection when the order to
produce is given under Order 11, Rule 14 or mandate them to be inspected as in accordance
with Order no. 11, Rule 18.

5
CIVIL JUSTICE SYSTEM: ITS DELAYS AND SOLUTIONS

Priyabrata Ghosh
Journal of the Indian Law Institute
Vol. 41, No. 2 (April-June 1999), pp. 264-271 (8 pages)
Published By: Indian Law Institute
The HC of Calcutta differentiated the ruling of the A.P. High Court in P. Vaaralakshmamma
v. P. Bala Subaramanyam 1958. The court pronounced that at any point during the lawsuit
the production of a document under Order no. 11, Rule 14, can be ordered. Rule 14 does not
necessitate the production to be granted only after a discovery order under Order no. 11, Rule
12.

Inspection:
Order XI Rule 12-21 outlines the inspection of discovery. Rule 12 compels other parties to
produce documents pertaining to any relevant matter related to the lawsuit, without the need
to file an affidavit for application to the court. These documents do not have to be made
admissible to the court unless there is a matter of controversy.
Order XI Rule 15-19 categorizes two types of material for inspecting:
 Such documents which are mentioned as a part in the affidavit.
 Such documents that are not a part of the pleadings but are within the power or
possession of the contending parties.
The parties can get an access to the documents only in the first category but not to the ones in
the second part.

Documents of Priviledge:
Privileged documents encompass:
 Public records.
 Documents used for confidential communications.
 Such documents that particularly involve the parties' title.
These are safeguarded from being produced. However, if the court needs to verify the validity
of claims that rendered these documents privileged, it can order the parties to submit them for
inspection. This ensures the benefit of the privilege while preventing unnecessary duplication
of information.

Premature Discovery:
Under Rule 20, a discovery is considered as premature in two situations:
 When the right to obtain the discovery order in entangled in a matter or question of
contention.
 When, because of any particular reason, it is deemed appropriate to determine any
issue or question in the lawsuit before addressing the right to discovery.

Procedure in case of non-compliance with order for inspection or

discovery:
Under Rule 21, the court's order carries a binding force, and failure to comply may result in
penalties. The legislature's intent behind this statutory rule is twofold:
 To make the contending entities truthfully and under an oath, reveal all the important
documents.
 To prohibit the contenders from producing any new fact or data once the trial begins.
The judicial body is in position to exercise its discretion in deciding premature inspections or
discoveries. In such cases, the court first determines the disputed issue or question and then
proceeds with the discovery. The rationale behind this provision is to differentiate between
resolving an issue in the lawsuit and deciding the lawsuit itself. However, it is crucial to note
that this provision cannot be applied when the disclosure or discovery is itself of utmost
importance to solve the matter at hand.
The importance of this proviso is evident in its consequences for non-compliance. If the
defendant fails to comply, their defense may be struck off, effectively restoring them to a
position as if they had not defended the case. On the other hand, if the plaintiff fails to
comply, it may result in adverse effects, disentitling the plaintiff from filing a new case on the
similar reason for action and the principle of “res judicata” will apply. Therefore, lack of
compliance can significantly affect the case in an unfavorable manner.

Conclusion:
After analyzing the requirements, procedure, and compliances of the orders for both
discovery and inspection, it is understood that the complexity of civil suits must be simplified
with the help of rules and orders enlisted in the Civil Procedure Code. The elaborate rules
also leave room for the discretion of the judge to make sure that the disclosure is only for the
purpose of fair trial and does not violate the fundamental right to privacy of the parties.
While disclosure requires only the production of the relevant documents for the sake of
information, inspection goes deeper into the interrogation and understanding of the
importance of the document as evidence. Both these methods seek strict compliance which
may often make the process of litigation cumbersome. However, it must be kept in mind that
the sole purpose is the disposal of the civil disputes with utmost objectivity and faith in
justice.