INTRODUCTION

Discovery is step in pre-trial stage in a lawsuit where each party explores or investigates the facts of a
case, through the rules and principles of civil procedure, by getting important evidences from the other
party by means for discovery devices including requests for answers to interrogatories, requests for
production of documents and things, requests for admissions, and depositions. The basic element of the
Rule of Law is its procedures. There should be equal opportunities given to all the parties of the suit for
Conducting a Reasonable and fair trial and the principles of natural justice should be followed in every
case. The provisions in regard to discovery and inspection are very crucial and cases wherein non
compliance is prevalent have adverse affects thereto. It is seen that after a suit is instituted by the
presentation of a plaint by the plaintiff and written statement by the defendant in a court, both parties
require to know certain facts about each other’s case. Not only the material facts of the opponent party
but also the documents in his possession or power which are relevant to issue in the suit can also be
asked to produce since such facts and documents maybe used to maintain the case or impeach or
destroy the case. There are therefore two kinds of facts in a case which are facto probanda, the ones’
which constitute a party’s case and facto probantia, which form the evidence by proving such facts. Only
facto probanda facts are allowed to be known beforehand to the party. a discovery may be sought by
filing an affidavit or otherwise against a party to the suit but there are two conditions precedent for a
discovery to be ordered by the court that are, firstly that such discovery is necessary for fair disposal of
suit and secondly, such discovery in a way or other saves cost. A discovery cannot be made of privileged
documents and it will not be enough to state an objection in an affidavit as to such documents but it
must be stated that how they are privileged so as to enable the court to decide the claim.

OBJECTS

The purpose of discovery and inspection of document and facts is to enable the parties to ascertain the
facts to be proved. With the leave of the court the plaintiff or defendant may deliver interrogatories in
writing for examination of opposite parties which are required to be answered and which are related to
the matter. The reason for discovery is to make the parties aware of the case, which implies there will
not be any vagueness between parties while the trial is going on. Both the parties will be clear about the
plaint made and issues consequently. The extent of this section is fundamentally dictated by the degree
of discovery that can be made by the parties with the interference of the court. The information which is
gotten during the discovery isn’t should have been admitted in court. According to the prerequisite,
parties can get an order from the court for the revelation of required facts or documents from the
opposite party to comprehend the goal or objective behind the case. Accordingly, the degree of
extensibility of applying this section relies on the idea of the case and material that is asked by the other
party. So it is the discretion of the court to choose whether the application is covered according to the
degree given to the section under the code or not.

CONTENT-STRUCTURED ANALYSIS OF THE TOPIC

The Concept of Discovery is defined under the Civil Procedure Code, 1908 discovery essentially implies a
pre-trial procedural perspective wherein each party is allowed a chance to get proof from the opposite
party. It is a proper process wherein the parties get an opportunity to exchange information concerning
the witnesses and proof which will be introduced before the court during the procedure of trial. The
primary reason for discovery is to make the parties aware of the case, which implies there will not be
any vagueness between parties while the trial is going on. Both the parties will be clear about the plaint
made and issues consequently.

There are different sorts of discovery:-

1) Interrogatories;

2) Requests for production of documents

3) Requests for admissions;

4) Statements;

5) Subpoenas, duces tecum;

6) Physical and mental examinations.

Therefore these are general rules for the discovery of the documents that 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. 
STATUTORY PROVISIONS

POWER TO ORDER DISCOVERY AND THE LIKE.

(Section 30 of Civil Procedure Code, 1908)

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.

The Order XII(11) deal with Discovery and Inspection in Civil Procdure Code, 1973

Rule 1 Order XI of Code of Civil Procedure 1908 "Discovery by interrogatories"

In any suit the plaintiff or defendant by leave of the Court may deliver interrogatories in writing for the
examination of the opposite parties or any one or more of such parties and such interrogatories when
delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons
is required to answer : Provided that no party shall deliver more than one set of interrogatories to the
same party without an order for that purpose : Provided also that interrogatories which do not relate to
any matters in question in the suit be deemed irrelevant, notwithstanding that they might be admissible
on the oral cross-examination of a witness.

Rule 2 Order XI of Code of Civil Procedure 1908 "Particular interrogatories to be submitted"

On an application for leave to deliver interrogatories, the particular interrogatories proposed to be

Rule 3 Order XI of Code of Civil Procedure 1908 "Costs of interrogatories"

In adjusting the costs of the suit inquiry shall at the instance of any party be made into the propriety of
exhibiting such interrogatories, and if it is the opinion of the taxing officer or of the Court, either with or
without an application for inquiry, that such interrogatories have been exhibited unreasonably,
vexatiously, or at improper length, the cost occasioned by the said interrogatories and the answers
thereto shall be paid in any event by the party in fault.
Rule 4 Order XI of Code of Civil Procedure 1908 "Form of interrogatories"

Interrogatories shall be in Form No. 2 in Appendix C, with such variations as circumstances may require.

Rule 5 Order XI of Code of Civil Procedure 1908 "Corporations"

Where any party to a suit is a corporation or a body of persons, whether incorporated or not,
empowered by law to sue or be sued, whether in its own name or in the name of any officer or other
person, any opposite party may apply for an order allowing him to deliver interrogatories to any
member or officer of such corporation or body, and an order may be made accordingly.

Rule 6 Order XI of Code of Civil Procedure 1908 "Objections to interrogatories by answer

Any objection to answering any interrogatory on the ground that it is scandalous or irrelevant or not
exhibited bona fide for the purpose of the suit, or that the matters inquired into are not sufficiently
material at that stage, or on the ground of privilege or any other ground, may be taken in the affidavit in
answer.

Rule 7 Order XI of Code of Civil Procedure 1908 "Setting aside and striking out interrogatories"

Any interrogatories may be set aside on the ground that they have been exhibited unreasonably or
vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary or scandalous; and
any application for this purpose may be made within seven days after service of the interrogatories.

Rule 8 Order XII of Code of Civil Procedure 1908 "Affidavit in answer, filing"

Interrogatories shall be answered by affidavit to be filed within ten days or within such other time as the
Court may allow.

Rule 9 Order XI of Code of Civil Procedure 1908 "Form of affidavit in answer"

An affidavit in answer to interrogatories shall be in Form No. 3 in Appendix C, with such variations as
circumstances may require

Rule 10 Order XI of Code of Civil Procedure 1908 "No exception to be taken"

No exceptions shall be taken to any affidavit in answer, but the sufficiency or otherwise of any such
affidavit objected to as insufficient shall be determined by the Court.

Rule 11 Order XI of Code of Civil Procedure 1908 "Order to answer or answer further"

Where any person interrogated omits to answer, or answer insufficiently, the party interrogating may
apply to the Court for an order requiring him to answer, or to answer further, as the case may be. And
an order may be made requiring him to answer or answer further, either by affidavit or by viva voce
examination as the Court may direct.

Rule 12 Order XI of Code of Civil Procedure 1908 "Application for 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. On the hearing of such application the Court may either
refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that
stage of the suit, or make such order, either generally or limited to certain classes of documents, as may,
in its discretion be thought fit :

Provided that discovery shall not be ordered 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 saying costs.

Rule 13 Order XI of Code of Civil Procedure 1908 "Affidavit of documents"

The affidavit to be made by a party against whom such order as is mentioned in the last preceding rule
has been made, shall specify which (if any) of the documents therein mentioned he objects to produce,
and it shall be in Form No. 5 in Appendix C, with such variations as circumstances may require.

Rule 14 Order XI of Code of Civil Procedure 1908 "Production of documents"

It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by
any party thereto, upon oath of such of the documents in his possession or power, relating to any
matter in question in such suit, as the Court shall think right; and the Court may deal with such
documents, when produced, in such manner as shall appear just.

Rule 15 Order XI of Code of Civil Procedure 1908 "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 which 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 and otherwise as the Court shall think fit.

Rule 16 Order XII of Code of Civil Procedure 1908 "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.

Rule 17 Order XI of Code of Civil Procedure 1908 "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.

Rule 18 Order XI of Code of Civil Procedure 1908 "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.

Rule 19 Order XI of Code of Civil Procedure 1908 "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.
Rule 20 Order XI of Code of Civil Procedure 1908 "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.

Rule 21 Order XI of Code of Civil Procedure 1908 "Non-compliance with order for discovery"

(1) Where any party fails to comply with any owner 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.

Rule 22 Order XI of Code of Civil Procedure 1908 "Using answers to interrogatories at trial"

Any party may, at the trial of a suit, use in evidence any one or more of the answers or any part of an
answer of the opposite party to interrogatories without putting in the others or the whole of such
answer : Provided always that in such case the Court may look at the whole of the answers, and if it shall
be of opinion that any others of them are so connected with those put in that the last-mentioned
answers ought not to be used without them, it may direct them to be put in.

Rule 23 Order XI of Code of Civil Procedure 1908 "Order to apply to minors"

This Order shall apply to minor plaintiffs and defendants, and to the next friends and guardians for the
suit of persons under disability

AMDENDMENT BY KARNATAKA HIGH COURT

In Order XI, after rule 23, insert the following rules, namely-

"24. If where inspection has been Ordered out of Court or is to be given out of Court, it found that a
satisfactory inspection cannot be obtained, or if it is shown that the documents are being or likely to be
tempered with, an application may be made to Court for an Order for the deposit and inspection of the
documents in Court. Such application shall be supported by affidavit. Notice of such application shall be
given to the party effected thereby and Orders passed only after hearing both sides, if they appear on
the date fixed for hearing in the notice, or on any other date to which the hearing of the same may be
adjourned thereafter.
25. A defendant upon whom summons to appear and answer the plaint has been served, shall on
entering, appearance before filing his written statement be entitled along with his pleader, if any, to
inspect all documents to produced with the plaint and lying in the custody of the Court.

26. A plaintiff as well as every defendant on whom summons has been served and who has entered
appearance shall be entitled along with his pleader, if any, to inspect all documents produced into Court
by any party to the suit." (w.e.f. 30-3-1967)

CASELAW WITH CITATION

M.L. SETHI V. R.P. KAPOOR

Citation: 1972 AIR 2379 and (1972) 2 SCC 427

Coram: K K Mathew & Kuttyil Kurien

Facts of the Case:

The Respondent filed a suit in forma Pauperis (in the form of a pauper-poor person) against appellant
and appellant’s wife for recovery of damages for malicious prosecution. Appellant filed objections
stating that the respondent is not a pauper. Appellant then filed an application for discovery of
documents by respondent which supported his contention of being a pauper. When the opposite party
is asked to disclose the documents which are under its possession or power, then that is called as the
discovery of documents. This issue in the present before the Supreme Court and decided. The trial court
ordered respondent to discover some specific documents – pass book and other personal documents
which the court specifically named.The respondent was to file the above mentioned documents which
he did not. The respondent moved an application stating that he wanted to file a revision against the
order of the trial court to file the documents the court had asked and that he required two months time
for the same. The court rejected the application for time  on the ground that the application for
permission to sue in forma pauperis was pending for the last seven years and that the respondent
had ample time to file the documents if he was diligent in the matter. The respondent challenged the
order directing discovery of documents in revision before the High Court. However, High court set aside
both the orders saying that trial court acted with material irregularity.

ISSUES

1. Whether the order of the trial court for the discovery of the documents bad in law and lacked
Juridiction?

2. And whether the High Court was justified in interfering with it?

RATIO DECIDENDI

“difference between jurisdictional error and error of law was reduced to a vanishing point”
HELD:

1. The apex court held that the trial court had jurisdiction to pass the order for discovery and the
court also did not find any jurisdictional error in the rejection of application for time and the
consequent dismissal of the petition for permission to sue in forma pauperis. The court in this
case appreciated the expanded meaning of Jurisdiction by referring to a famous UK case
– Anisminic Ltd v. Foreign Compensation Comission and stated that “the practical effect of the
decision in Anisminic case is that any error of law can be reckoned as jurisdictional.”

2. The court also stated that the effect comes closely to saying that –  there is jurisdiction if the
decision is right in law but there is no jurisdiction if the decision is wrong.

3. Till now the error of law was not considered to be the error in the exercising of Jurisdiction but
after the UK case-‘difference between jurisdictional error and error of law was reduced to a
vanishing point’.

4. And it would be only the opinion of court which would decide the magnitude of error in law so
as to constitute Jurisdictional error in the case.

5. In order to decide “whether there is excess of jurisdiction or merely error within jurisdiction can
be determined only by construing (interpreting) the empowering statute, which will give little
guidance.”

RAJESH BHATIA AND ORS. VS G. PARIMALA AND ANR.

Citation: 2006 (3) ALT 129

Coram: T C Rao

FACTS OF THE CASE

The plaintiffs filed the suit for recovery of an amount of Rs. 3,83,0007- from the defendants 1 and 2. The
case of the plaintiffs was that on the request of the first defendant the plaintiffs handed over the
original sale deed dated 30-08-1993 and the fixed deposit receipts worth Rs. 3,83,0007- to her and her
husband C.S. Sudhir Kumar. Plaintiffs used to receive interest amount of Rs. 3,5007- from the second
defendant-bank on the above fixed deposits till May, 2001. However, without any reason whatsoever
the second defendant-bank stopped suddenly from the month of June 2001 the payment of interest. On
enquiry, the plaintiffs came to know that these fixed deposit receipts were given to the bank on
hypothecation by the first defendant, who availed credit facilities and bank guarantee. When the bank
guarantee was revoked by Andhra Bank, the second defendant-bank closed the above said F.D. Rs.
prematurely without giving any notice to the plaintiffs and adjusted the amounts covered by those
receipts against the revocation of bank guarantee taken by the first defendant. Questioning the high-
handed act of both the defendants, the plaintiffs filed the suit for realization of the amounts covered by
the fixed deposits.
ISSUE

Plaintiff filed suit for recovery of amount and direct defendant to submit income tax returns and other
documents. Judge dismissed petition partly insofar as the income tax returns are concerned and
directed the first defendant to produce the bank statements. Hence, this Petition

RATIO DECIDENDI

“If documents are public documents and are in custody and possession of public servants then it can
be obtained by applying certified copy to the Authority.”

HELD

If documents were public documents and were in custody and possession of public servants who were
only empowered to grant certified copies. It should be endeavor of party who required them to obtain
certified copies in first instance. The Petitioner could not produce those documents since they were in
custody of Court. Insofar as income tax returns of were concerned, there had been a prohibition
contained in Income Tax Act for producing those documents by the Department. The proper procedure
was to be to issue notice to defendant to file income tax returns. If he failed, plaintiffs could either lead
secondary evidence by obtaining the certified copies from Department. Therefore, it was not case of any
discovery as regards existence of documents and need to inspect those documents so as to shorten
litigation. It was a matter where trial process was on and had been going on. Hence, application under
said order could not be allowed. Petition allowed.

CONCULSION

The provisions of Order XI of the Code are intended to curtail evidence thereby expediting trial of the
suit, saving court's time and costs of litigation to the parties. The said order gives the right to obtain
information to acquire an admission from the opponent which is material and relevant to the issue
raised on the pleadings and gives a right to interrogate. The provision related to interrogatories also
narrows the point in issue and saves the party from time-consuming process of obtaining information
from his opponent. Such a right under Order XI shall not be used to abuse the interest of the opponent
party. The parties shall also take due care of the fact that they need to follow the procedures provided
within the time frame, so that the case may be disposed-off quickly and effectively.

BIBLOGRAPHY

1. C K Takwani, J, CIVIL PROCEDURE CODE with LIMITATION ACT, 1963 159 (Eastern Book Company,
Lucknow, 7th ed., 2013).

2. A R Lakshmanan, J (ed.), WHARTON’S LAW LEXICON 1663 (Universal Law Publishing Co. Pvt. Ltd., New
Delhi, 15th ed., 2009); Gulab Bai v. Panphool Bai, AIR 1962 SC 214; Patel Roadways Ltd. v. Birla Yamaha
Ltd., (2000) 4 SCC 91.
3. The Code Of Civil Procedure, 1908 Universal Bare Act New Delhi 2019

4.Dictionary:

a) Black’s Law Dictionary (10th edn, 2014).

b) WHARTON’S LAW LEXICON (15th edn, 2009).