India: Discovery Of Documents And Interrogatories: An Analysis

INTRODUCTION

One of the tenets of natural justice is to run a fair trial and to provide absolute justice as equal opportunities must be given to both the parties to access the documents related to the case. It is outrightly true that one of the vital elements of the rule of law is its procedures enshrined under the Code of Civil Procedure, 1908, for proper adjudication of the civil suits. One of the most crucial provisions to ensure the same is Order XI, wherein the parties get a chance to exchange information regarding the witnesses and evidence presented before the court during the trial.

It is important to mention here that every civil suit consists of two types of facts. First is, facto probanda which constitutes a party's case, and second is facto probantia, wherein the facts will be considered as evidence if proven. This article will further deal with facto probanda. A procedure under which the opposite party requests for certain undiscovered documents is known as Discovery of Documents and if any particulars regarding the case are asked by the way of questions, then it is termed as Discovery by Interrogatories. The same is further delineated below:

DISCLOSURE AND DISCOVERY OF DOCUMENTS

The procedure through which the adversary party is compelled to disclose the vital documents which are under the possession or power of such party is termed as 'Discovery of Documents'. Discovery of Documents is defined under Order XI Rule 12-14 of the Code of Civil Procedure,1908, and Order XI Rule 1 of the Commercial Court Act, 2015.

Any party to a suit under oath may apply for an order from the court for the discovery of documents that are related to the matter in question of the suit from the adversary party. However, the documents or information which reveal evidence of the party, document, or information shall not be ordered to be produced. The ratio behind such exception is that the party shall not come to court after knowing how his opponent is going to prove his case.

The purpose of discovery of documents is to: (i) to elicit admissions, (ii) to obviate the necessity to produce lengthy evidence, and (iii) to expedite disposal.¹

Discovery of documents can only happen when both parties are getting affected by the same cause of action. No discovery of documents can take place if the exclusive right of only one party is getting affected. It is well settled in law that if documents produced by one party is related to the case of both the parties, then the party producing them cannot claim exemption from inspection². Discovery of documents must be related to the pleadings and documents asked to produce must come under the category of relevant documents. Documents must be in possession and the power of the person against whom discovery and production are being sought.

It is important to note here that while the discovery of documents is being asked, the court must be satisfied with two conditions. Firstly, the discovery order is necessary for the fair disposal of the suit, and secondly that, such discovery of documents is saving costs. No defendant can be compelled to produce any documents or to give inspection of the same to facilitate cross-examination, or for enabling the plaintiff to understand the genuineness of purport of the documents relied upon by the defendants for proving his case³. There also exist certain objections on which Discovery of Documents cannot be asked by any party such as (i) disclosing other party's evidence; (ii) doctrine of legal professional privilege; (iii) injurious to public interest.

Simply, it can be explained that a document may be inadmissible in evidence, yet it may contain information that may directly or indirectly enable the party seeking discovery either to advance his case or damage his adversary's case or which may lead to a trial of inquiry which may have either of these two consequences⁴. Thus, before making an order under the provisions of Discovery of Documents, the following principles are to be considered by the courts⁵:-

(i) The documents sought to be discovered and produced must be relevant to the matter in controversy viz. matters in question.

(ii) The documents must be in the possession and power of the person against whom discovery and production are sought.

(iii) Discovery and production of the documents which are sought for are necessary at that stage of the suit.

(iv) The discovery and production are necessary for fairly disposing-off the suit or for saving costs.

(v) The discovery and production may be general or limited to certain classes of documents as the court in its discretion deems fit and the production will only be ordered if the court considers it just.

DISCOVERY BY INTERROGATORIES

In the civil suit, after filing of the written statement by the defendant and summons being sent to both the parties for the first hearing, the process leads to the settlement of issues. But there are certain questions that come into existence, after the settlement of issues due to some information received by one party which might not be known to the other party. In such circumstances, the concept of Interrogatories plays a crucial role. Interrogatories may be defined as formal written questions that require an answer by the direction of the court. The process of Interrogatories is to be encouraged as it is a way of obtaining admissions of parties and is used profusely whenever it could shorten the litigation and serve the interest of justice⁶.

Discovery by Interrogatories is defined under Order XI Rule 1 to 11, 21, and 22 of the Code of Civil Procedure, 1908, and is defined under Order XI Rule 2 under the Commercial Court Act, 2015.

The party to whom interrogatories are administered must answer them in writing and on oath. The party to whom interrogatories are administered, discovers or discloses by his affidavit, in answer to the interrogatories, the nature of its case. This is called Discovery by Interrogatories. Interrogatories shall be confined to the facts, it shall not be conclusions of law, construction of words or documents, or inference from facts⁷.

The set of questions shall be the 'question of fact' rather than the 'question of law'. The willing party to deliver interrogatories shall apply for leave to the court and shall submit the proposed interrogatories to the court. As per Order XI Rule 2, the court shall decide the matter within 7 days of filing the application by the party. Further, the Civil Procedure Code, 1908, has given the prescribed format in which the interrogatories must be filed which is provided in form number 1 and 2 of Appendix C and the affidavit should be in form number 3 of Appendix C. The affidavit to answer the interrogatories shall be filed within ten days after the service of interrogatories.

The objective of interrogatories is to: (i) determine the nature of the case when it is not clear from the suit filed; (ii) to make own case stronger by securing admission from the other party; (iii) to destroy the case of the opponent⁸; (iv) maintain his case and destroy the case of the adversary; and (v) to seek admission of a party on the matter in dispute so that the issues can be accordingly framed, minimizing the contentious issues or disputes left for the adjudication of the court, with the ultimate object of facilitating early and expeditious disposal of the suit⁹.

Interrogatories asked must have some bearing on the issues involved in the case and those which do not relate to any matters in question in the suit shall be deemed irrelevant. Interrogatories are the way of admission of any fact and can be allowed to any party which is part of the suit which can be Corporation, or Body of Persons as stated in Order XI Rule 5.

Objections to the interrogatories can be raised by the parties on the ground wherein one party feels that the questions asked are scandalous, irrelevant, prolix, oppressive, unnecessary, not exhibited bona fide, and are on the ground of privilege. Questions of interrogatories in the form of fishing or roving are also not allowed. It is an important part to consider that interrogatories in respect of foreign law are also not permissible.

Interrogatories aid in narrowing down the point in issue by saving the parties from extra expenses by enabling them to obtain all information related to material facts of the case. The special power provided to the parties must be handled with due precaution by the court to counter scandalous, mala fide, or immaterial interrogatories.

DIFFERENCE BETWEEN INTERROGATORIES AND CROSS-EXAMINATION

(i) Interrogatories can never be asked to check the credibility of the person. However, the same can happen during the cross-examination.

(ii) Interrogatories can only take place with the parties involved in the case. However, cross-examination can take place with both parties as well as the witness involved in the case.

(iii) In interrogatories, one party can only ask questions related to any matter/issues involved in the case whereas, in cross-examination, you can ask anything as relevant to the parties involved in the case.

(iv) Interrogatories has a narrower scope whereas cross-examination has a broader scope.

CONCLUSION

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 parties¹⁰. 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.

Footnotes

1. Rajnarain v. Indira Gandhi, AIR 1972 All 41

2. Bagyalakshmi Ammal and Ors Vs Srinivasa Reddiar (MANU/TN/0146/1960)

3. Bagyalakshmi Ammal and Ors Vs Srinivasa Reddiar (MANU/TN/0146/1960)

4. M.L. Sethi v. RP Kapur, (IR 1972 SC 2379)

5. DSIIDC vs Shiv Kumar (MANU/DE/3646/2013)

6. Smt. Sharda Dhir v. Sh. Ashok Kumar Makhija and Ors. (MANU/ DE/1021/2002)

7. P. Balan v. Central Bank of India, Calicut (AIR 2000 Ker 24)

8. Plymouth Mutual Co-op. Society v. Traders Publishing Association [(1906) 1 LJ 415]

9. Govind Narayan & Ors Vs Nagenra Nagda & Ors (MANU/RH/0832/2017)

10. Transport Corporation of India Ltd Vs Reserve Bank of India and Ors [243 (2017) DLT 168]

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.