Production of Documents in Court: Order XI, Rule 14 CPC is Not Independent from Rule 12

Saji Koduvath, Advocate, Kottayam.

A puzzling question: Is ‘discovery’, under Rule 12 of Order XI, CPC, an inevitable ‘pre-step’ to order ‘production’ under Rule 14 of Order XI?

Answer: Yes.

The probe is surfaced for it is not specifically stated either in Rule 12 or in Rule 14 that the ‘discovery’ under Rule 12 is a ‘condition precedent’ for ordering ‘production’ under Rule 14; though obviously there is a nexus between ‘discovery’ and ‘production’. The sequence in which these provisions are arrayed also gives us cue to answer this problem.

Order XI Rules 12 & 14: And the apparent anomalies that seek explanations

O. 11 R. 12 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 saving costs.	Rule 12 deals with (i) filing application for ‘discovery’ and (ii) passing order thereon. It does not say specifically as to ordering ‘production‘ of documents after the discovery. (‘Production’ of documents is governed by Rule 14.)
O. 11 R. 13 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.	It is not made clear in Rule 12 – whether ‘discovery of the documents’ partake ‘production’ also. But, rule 13 says – opposite party may make ‘objection’ to “produce” documents. (No such provision for ‘objecting‘ in Rule 14.)
O. 11 R. 14 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 12 allows any party to ‘apply to the Court for an order’ for discovery. (No such provision for ‘applying‘ in Rule 14.)
O. 11 R. 21 Non-compliance with order for discovery: (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 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.	Effect of ‘nonproduction’ under Rule 14 is not indicated in R. 21. (Only the effect of non-compliance of ‘discovery’ [Rule 12] is provided — in Rule 21.)

Resolutions and Propositions

Analysis of Rule 12 and 14 impeccably establishes complementarity between these provisions, and unerringly settles that ‘Discovery’ of documents under Rule 12 of Order XI is an inevitable condition precedent for ‘Production’ of documents under Rule 14, as shown under:

Rule 12 (for discovery) expressly allows a party to the suit to apply the Court for an order directing any other party to make ‘discovery on oath’.
The party against whom discovery (on oath) is applied for is required, to file affidavit (under Rule 13). Rule 13 further requires him to place his ‘objections to produce’.
Rule 12 directs that the documents sought for must relate to matters in question; that on the hearing of such application the Court may either refuse or adjourn the same; and that if the court is satisfied that such discovery is not necessary, make such order, as the court thinks fit.
- Though ‘production’ under Rule 14 is the serious matter when compared to ‘discovery’ under Rule 12, there is no provision in Rule 14 (as in Rule 12) for –
  - (i) applying for production;
  - (ii) placing objections or filing affidavit;
  - (iii) directing hearing by court, and passing an order as the court thinks fit.
Failure to produce affidavit under Rule 12 invites stringent actions under Rule 21 (suit dismissed, defence struck out, etc.).
- (i) Effect of non-production of documents under Rule 14 is not specified in R. 21;
- (ii) court can, in such an eventuality, take adverse presumption only, (under Sec. 114, Illus.- g of the Evidence Act).

We see significant and severe actions as regards ‘discovery of documents’ under Rule 12 (that is, filing affidavit and objection, hearing, dismissal of suit, striking out defence, etc.). And, no such significant actions are attached to Rule 14. Why?

The only answer is that the legislature took Rule 12 and 14 as concomitant provisions. That is, ‘production’ of a document under Rule 14 comes into consideration only if it is ‘discovered’ under Rule 14.

Legislative Intention – Concordance Between ‘Discovery’ and ‘Production’

The indisputable reciprocity between ‘discovery’ and ‘production’, and the sequence in which the they are arrayed in Rule 12 and 14, ensure that compliance of Rule 12 is a necessary pre-condition for ordering ‘production’ under Rule 14. Therefore, it is definite that discovery under Rule 12 partakes its ‘production’ (as the next step, under Rule 14).

The afore-stated propositions are fortified by the following:

Ordering production, under Rule 14, is purely a discretionary matter with court.
- Rule 14 reads – “It shall be lawful for the Court … to order the production … of such of the documents in his possession or power … ”.
- Import of these words are obvious in itself. That is, wide-open discretion is given to the court for ordering production under rule 14.
It is unquestionable that a party to the suit has no vested right to seek ‘production’ of any document under rule 14-
- even after ‘discovery’ of the same under rule 12.
Similarly, the party to the suit has no vested right to seek production of ‘all documents‘ discovered under Rule 12.

Documents Admitted in Pleadings – Can Production be Ordered under Rule 14?

Now, a question may reasonably and logically arise – Assume, it is admitted in pleadings or affidavit by a party that certain relevant documents are in his custody; can’t the court order production of those documents (directly) under Rule 14, on application of the other party?

No – because of the specific provisions of the CPC as to inspection (and to take copies) of documents referred to in pleadings or affidavits in Order XI rule 15.*
- ^*^{Note: The rule is that general provisions should yield to specific provisions (J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. State of U.P., (1961) 3 SCR 185; U.P. SEB v. Hari Shankar Jain, (1978) 4 SCC 16; Commercial Tax Officer, Rajasthan v. M/S Binani Cement Ltd., (2014) 3 SCR 1).}
It goes without saying that the permission for taking copies is provided for ‘exhibiting’ the same by the party concerned, as part of his evidence.
Rule 15 Order XI CPC reads as under:
- “15. 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 with 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 an otherwise as the Court shall think fit.”
See blog: Notice to Produce Documents in Civil Cases
Proof of Documents & Objections To Admissibility – How & When?

Do the words “at any time” in Rule 14 indicate – it is independent from Rule 12?

No.

Rule 14 reads as under:

“It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto ….. “

It is definite – the words “at any time during the pendency of any suit,” only emphasise-

that a party to the suit has no vested right to seek ‘production’ under rule 14, soon after a document is discovered under rule 12; and
that wide-open discretion is given to the court for ordering production under rule 14, at any time.

Does Sec. 30 CPC, Give an Independent Right to Order Production of Documents

Does Sec. 30 CPC (the substantive provision) give an independent right, is another question that may arise in this matter. The beginning portion of the section itself makes it clear that the section is “subject to such conditions and limitations as may be prescribed”. Therefore, it is clear that the power of the court to order production of document, under Sec. 30, is subject to the provisions in O. XI r. 12 and 14.

Sec. 30 CPC reads as under:

“Sec. 30 – Power to Order Discovery and the like.

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.”

Order XVI Rule 21, CPC (Madras & Kerala Amendment)

Yet another provision to be looked into in this matter is Order XVI Rule 21 CPC (Madras & Kerala Amendment). It reads as under:

“Rule 21 – Rules in case of parties appearing as Witnesses: (1) When a party to a suit is required by any other party thereto to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as applicable.
(2) When a party to a suit gives evidence on his own behalf the Court may, in its discretion, permit him to include as costs in the suit a sum of money equal to the amount payable for travelling and other expenses to other witnesses in the case of similar standing….”

It is plain – Order XVI deals with ‘Summoning and Attendance of Witnesses’; and that the Madras and Kerala amendment on Order XVI Rule 21 CPC does not deal with the power of the court to Oder ‘Production of Documents’.

Can a Party Seek Discovery and Production in One Petition?

Technically it may not be illegal, altogether. But, it will be improper if the court passes orders on both prayers simultaneously, especially since the court has to order production .

The ‘Scheme’ of CPC

The ‘scheme’ of the CPC is also germane.

We can compare the provisions in the CPC as to production of documents with calling for the opposite party as a witness.
- There is no specific provision in the CPC that allows a party to the suit to summon the opposite party as a witness – though court has discretion (Order 16 rule 14 CPC), to ‘examine any person, including a party to the suit’ after 1976 Amendment of the CPC.
(See: Kishori Lal v. Chunni Lal, ILR 31 All. 116, Narayana Pillai v. Kalyani Ammal, 1963 KLT 537, Muhammed Kunji v. Shahabudeen, 1969 KLT 170.)
See blog: Can a Party to Suit Examine Opposite Party, as of Right?

It is clear, the scheme of the CPC is-

(i) not to initiate coercive steps, against a party who does not examine himself as a witness, or withholds a document;
(ii) but to take adverse presumption under Sec. 114 Evidence Act.

Notice and Summons to Produce Documents in other Provisions of the CPC

Besides the powers of the court under Sec. 165 of Evidence Act, no doubt, the provisions of Order XVI rule 14 (summons to witness to produce documents) and Order XI rule 15 and Order XII rule 8 (notice to the other party to produce documents) provide for production of documents independent of O. XI r. 12 and O. XI r. 14. These enabling provisions do not bestow a vehicle to the court to ignore the provisions under O. XI r. 12 and O. XI r. 14; for, the judicial principle – the general provisions should yield to specific provisions.

Order XVI r. 14

“Court may of its own accord summon as witnesses strangers to suit: Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it necessary [to examine any person, including a party to the suit], and not called as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession on a day to be appointed, and may examine him as a witness or require him to produce such document.”
- But, the words “of its own accord“, “subject to the provisions of this Code … and to any law” and “the Court may” make it clear that this provision is not intended to use openhandedly.
Order XI rule 15 and Order XII rule 8 are the provisions in the CPC to give notice to the other party to produce documents (for ‘inspection’ and ‘show court’, respectively).

Discovery is Made to Aid the Production of Documents

The proposition, ‘production of a document under Rule 14 comes into consideration only if it is ‘discovered’ under Rule 12′ can be fully supported by the decision of the Bombay High Court, in Manager, Ramkrishna Ramnath Bidi v. First Civil J. First Class, Nagpur, AIR 1959 Bom 181 (J Mudholkar and S Kotwal, JJ).

Referring O. 11 of the CPC, it is held in this decision as under:

“In its first eleven rules, Order 11 deals with the delivery of interrogatories …. Then it makes provision for the discovery of documents in rules 12 and 13. After discovery is provided for, it deals with the subject of production of documents in Rule 14. Then provision is made for the inspection of the documents produced in Rules 15, 17 and 18 of the Order.
Reading the Order as a whole, it seems to us clear that the provisions made in the Order for discovery and inspection are only provisions made in order to aid the production of documents before the Court, particularly the provisions regarding ‘discovery’.”

Views of the Apex Court

The decision, M. L. Sethi v. R. P. Kapur, AIR 1972 SC 2379, emphasises that it is not necessary for an applicant under Order XI rule 12 to specify in detail the documents sought to be discovered when they are in the hands of the other side; and that the claim of privilege can be considered only after discovery, when the stage of production is reached. It is also made clear that if the document is relevant for the purpose of throwing light on the matter in dispute, though it might not be admissible in evidence, it can be put to discovery under rule 12.

It is true, our Apex Court, did not give effect to the proposition that compliance (discovery) of Rule 12 is a condition precedent to order production under Rule 14 in Basanagouda v. SB Amarkhed, AIR 1992 SC 1163, when it proceeded as under:

“The Court, therefore, is clearly empowered and it shall be lawful for it to Order the production, by any party to the suit, such documents in his possession or power relate to any matter in question in the suit provided the Court shall think right that the production of the documents are necessary to decide the matter in question.”
- Note: Whether ‘discovery under Rule 12 is a condition precedent for ordering production of documents under Rule 14’ was not considered in this case.

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End Notes

Section 130 Evidence Act

Sec. 130 stipulates that no witness who is not a party to a suit shall be compelled to produce
- (i) his title-deeds to any property, or
- (ii) any document in virtue of which he holds any property as pledge or mortgagee.

It will be interesting to consider whether the court has jurisdiction to compel a party to produce his title deeds to any property – applying the converse analogy on the negative assertion in Section 130 (otherwise than ‘discovery’ under Rule 12).

The answer is – No.

In Dolagovinda Pradhan v. Bhartruhari Mahatab, 1993 CIVCC 394, 1993-3 LJR 506, 1991-2 Ori LR395, 1991-3 CurCC 519, it is observed (obiter) that under Order XI, Rule 14, CPC, it would be lawful for the Court to require, the party to the suit, to produce such documents in his possession relating to any matter in question in the suit subject to its lawful objections. The High Court pointed out the converse analogy on the negative assertion in Section 130 Evidence Act (which provides that no witness who is not a party to a suit shall be compelled to produce his title-deeds to any property). Though the High Court merely referred to “lawful” authority of the court to require production of the document from a party, it clear that the postulation laid down is that the court has the “power” to order production, because the court placed the proposition in converse to the direction in Sec. 130 of the Evidence Act. It does not appear to be a correct proposition in the light of ML Sethi v. RP Kapur (supra).

Sec. 66 of the Evidence Act reads as under:

66. Rules as to notice to produce.—Secondary evidence of the contents of the documents referred to in section 65, clause (a) , shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, [or to his attorney or pleader,] such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case.
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:—
(1) when the document to be proved is itself a notice;
(2) when, from the nature of the case, the adverse party must know that he will be required to produce it;
(3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
(4) when the adverse party or his agent has the original in Court;
(5) when the adverse party or his agent has admitted the loss of the document;
(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.

See blog: Notice to Produce Documents in Civil Cases

Courts to admit documents Without Proof

Section 163 of the Evidence Act, reads as under:

163. Giving, as evidence, of document called for and produced on notice: When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.

In Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, and R v. Makhan, AIR 1940 Cal 167 it was observed that Section 163 of the Evidence Act applies to Criminal Proceedings also. It is observed in Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, with respect to a document used under Sec. 163, as under:

“The further contention is that if they are to be admitted, they cannot be put in or at any rate used without proof. But the section itself says that the party calling for it is bound to give it as evidence if required to do so, and that certainly means that it goes in as a record of the particular proceeding and that it can be looked at to see what it includes or omits.”

Read Blog: How to Prove Whatsapp Chats, Facebook Messages and Website Information in Courts?

Court’s Jurisdiction to Require to Prove an Admitted Document

In any case, besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts (Evidence Act, CPC and CrPC) shows that the court has jurisdiction to require the party concerned to prove that document. We can rely on Sec. 58 of Evidence Act and Order XII, Rule 2A Proviso of the CPC and Sec. 294 of the CrPC to see the scheme of the procedural laws.

Section 294 of Code of Criminal Procedure reads as follows:

“294. No formal proof of certain documents. (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:
Provided that the Court may, in its discretion, require such signature to be proved.”

See Blog: PRODUCTION, ADMISSIBILITY & PROOF OF DOCUMENTS

Can a Commissioner be Appointed for Seizing Account Books

Can a Commissioner be appointed for seizing the books of account of a party to the suit in the exercise of its inherent powers?

No.
In Padam Sen v. The State of Uttar Pradesh, AIR 1961 SC 218, it was held that ‘the Munsif had no jurisdiction to appoint a Commissioner for seizing the account books of the plaintiff, which is passed by the Court is null and void’.

Read in this cluster (Click/touch on the topic):

Book No. 1

Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws/ Transfer of Property Act

Book No. 2

Evidence Act – General

Book No. 3

Contract Act

Easement

Stamp Act

Will

Book No. 4: A Handbook on Constitutional Issues

Book No. 5: Common Law of CLUBS and SOCIETIES in India

Book No. 6: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
- Suits By or Against Trusts and Trustees
- Remedies Under Sec. 92 CPC
Law on Hindu Religious Endowments
- Philosophy of Idol Worship
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General

1 Comment

Bhagat singh says:

October 4, 2022 at 4:14 pm

An outstanding expression which is very very useful for all engaged in the legal service. I am very impressed upon reading the article and other material on board

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Production of Documents in Court: Order XI, Rule 14 CPC is Not Independent from Rule 12

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