Report No. 54

Chapter 11

Discovery and Inspection

Introductory

11.1. Discovery and inspection are dealt with in Order 11, which, unfortunately, is one of the least used Orders in the Code. The object of what is called "discovery" is to secure, if possible, an admission of facts in aid of proof, to supply the want of it and to avoid expense.1 Discovery of facts is obtained usually by interrogatories. But discovery is not confined to facts, but extends to documents, and could be supplemented by orders for the inspection and production of documents.

1. Wigram's Points in the Law of Discovery, para. 2, cited in Stokes' Anglo-Indian Codes, Vol. 2, p. 401.

11.2. Non-compliance with an order to answer interrogatories or to discover facts, or an order for the discovery and inspection of documents, can be visited with fatal consequences under rule 11. If the order for discovery has been complied with, naturally answers given by the party in response to the interrogatories can be used in evidence and if the discovery relates to documents, the documents disclosed if proved, should be valuable as evidence. It may be noted, that the ultimate source of the practice of putting interrogatories is civil law1.

1. Story, Pleadings, para. 39, cited in Stoke's Anglo-Indian Codes, Vol. 2, p. 403.

Order 11, rule 14

11.3. Order 11, rule 14 provides that it shall be lawful for the court at any time during the pendency of any suit to order the production by any party, upon oath, of all documents in his possession, etc. One small question was considered in the earlier Report1 with reference to this rule. The Commission examined the question whether an order under this rule can be passed before an application for discovery is made under Order 11, rule 12. The majority view2-3-4, the Commission noted, was, that it can be ordered. This view is based on the words 'at any time' which occur in this rule. But a contrary view, that Commission noted, also seems to have been taken in one case5. In view of the majority opinion, the previous Commission thought that a change was not needed.

1. 27th Report, note on Order 11, rule 14.

2. Ram Hari v. Niranjan, 50 CWN 845.

3. Sriniwas v. Election Tribunal, Lucknow, AIP 1955 All 251.

4. P. Veralkshamamma v. P. Bala, AIR 1958 AP 157.

5. Baidyanath v. Bholanath, AIR 1923 Pat 337 (338).

11.4. In this context, we have considered the question of adding an Explanation to Order 11, rule 14, as follows:

"Explanation-An order under this rule may be passed before any application of discovery is made under rule 12 of this Order."

11.5. However, we have ultimately come to the conclusion that no such change is needed, as the present language is sufficiently wide and clear to cover the point.

Order 11, rule 14

11.6. With reference to Order 11, rule 14, two points were considered in the earlier Report1; but, after an examination of the position, the Commission considered an amendment unnecessary. We agree with the view taken in the earlier Report.

1. 27th Report, note on Order 11, rule 14.

Order 11, rule 21

11.7. Under Order 11, rule 21, where 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. The rule further provides that a 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.

11.8. We are of the view that a fresh suit should be barred when a suit is dismissed under this rule1.

1. Compare Order 9, rule 9.

11.9. It is also desirable to provide that an order under this rule can be made only after hearing the other side.

Recommendation

11.10. Accordingly, we recommend that Order 11, rule 21 should be revised as follows:-

"21. (1) Where 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,

(2) Where an order under sub-rule (1) is passed dismissing the suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action."

Order 12, rule 2A (New).

11.11. The earlier Report1 noted that a recommendation had been made in the Fourteenth Report2 to empower the Court to award penal costs against a party unreasonably neglecting or refusing to admit documents (Such costs will be in addition to the costs awarded at present under this rule). After some consideration, however, it was decided by the previous Commission not to make this change, as the Commission felt that the existing provision is adequate.

1. 27th Report, note on Order 12, rule 2.

2. 14th Report, Vol. I, para 32.

11.12. We, however, think that such a provision is desirable. Further, we think that if a document is not denied, it should be taken as admitted, unless the Court otherwise directs.

Recommendation

11.13. Accordingly, we recommend the insertion of the following new rule in Order 12-

"2A (1) Every document which a party is called upon to admit, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of that party or in its reply to the notice to admit documents, shall be taken to be admitted, except as against a person under disability.

Provided that the Court may in its discretion and for reasons to be recorded require any document so admitted to be proved otherwise than by such admission.

(2) Where a party unreasonably neglects or refuses to admit a document, the Court may also award against him penal costs, to be paid to the opposite party".