Can the court reject an application for the production of documents because documents are not between plaintiff and defendant?

 The trial Court has also rejected the plaintiff's application on the ground that the documents in question are not between the plaintiff and the defendant, but they are documents between the officials of the defendant. I have no doubt that this observation of the trial Court is merely an obfuscation inasmuch as the correspondence between the officers of the defendant can certainly be relied upon by the plaintiff if according to the plaintiff the same may prove or support the plaintiff's case. It is obvious that the Order 11 Rule 12 does not in any way limit the discovery of documents, in the case of letters to the letters exchanged only by the parties to the suit. The requirements of this provision are limited only to the fact that the documents should be or should have been in the possession or power of a party to the suit, and that the same should relate to any matter in question in the suit. Clearly the letters in question satisfy these requirements and, therefore, the order for discovery thereof cannot be refused on the ground that the letters are not directly between the parties to the suit. {Para 7}

 IN THE HIGH COURT OF GUJARAT

Civil Revn. Appln. No. 1254 of 1985

Decided On: 14.06.1991

 Kamalia Brothers and Co. Vs. State of Gujarat

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Can the court reject an application for the production of documents because documents are confidential?

The trial Court has upheld the contention of the defendant in respect of a simple plea that the letters are confidential letters and confidential letters cannot be produced and discovery in respect thereof cannot be granted. The trial Court has not assigned any cogent and or logical reason for upholding this bare plea. It must be borne in mind that the trial Court was conscious of the petitioner's plea that merely by labelling the letters in question as "Confidential Letters" the same cannot be excluded from the purview of Order 11, Rule 12 of Civil Procedure Code. The trial Court was also aware that the petitioner had specifically contended that no specific or particular privilege in respect of the letters in question had been claimed by the defendant, and that there was no claim and or contention on the part of the defendant that disclosure would be prejudicial to public interest and or to national security and or' opposed to public policy and or detrimental to the interest of the defendant in any other manner. In fact there is no reason (for the confidentiality) disclosed by the defendant nor any explanation and or clarification offered in respect of the nature of confidential letters. {Para 5}

6. Under the circumstances it is clear that the bare plea that the letters are It is, therefore, obvious that the letters" cannot be upheld.

 IN THE HIGH COURT OF GUJARAT

Civil Revn. Appln. No. 1254 of 1985

Decided On: 14.06.1991

 Kamalia Brothers and Co. Vs. State of Gujarat

Hon'ble Judges/Coram:

Y.B. Bhatt, J.

Citation : AIR 1992 Guj 138, MANU/GJ/0147/1992

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Whether court should direct discovery and production of entire sale deed in defamation suit?

The Coordinate Bench of this court in the case of DSIIDC v. Shiv Kumar, 2013 SCC Online Delhi 3773, has held that before making an order under the provisions of Order XI, the following principles have to be considered by the Court:

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

(ii) The documents have to be in the possession and power of the person against whom discovery and production is 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 is necessary for fairly disposing of 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.

13. The aforesaid principles clearly apply to the facts of this case as noted above. Further the order directing the production of document does not by itself effect any vital and valuable rights of the parties and does not decide the matter. In so far as the judgment relied upon by Mr. Sindhwani in the case of Vipul Gupta (Supra) is concerned, this court has held (1) The court has to be satisfied that the documents in question are relevant for proper adjudication of the matter involved in the suit; (2) if a party pleads ‘truth’ as a defence, then the party has to show that when the statement was made, it was on the basis of facts and circumstances in the knowledge of party, by which party was aware that the statement which the party was making was true or there was a reasonable belief based on material and information then available, that whatever being stated was true.

14. There cannot be any dispute on the propositions of law laid down in the said judgment. But in this case, the plaintiff relied upon / produced only a part of the Sale Deed and not the complete one with the site plan for the reasons best known. The Sale Deed along with site plan having been executed in the year 2005 was in existence when the interview / statement was given in the year 2018 and it is also the case of the defendant No.2 in the application for discovery and production of documents that on a perusal of the Sale Deed, more particularly Schedules annexed thereto, it is revealed that the property is measuring 4.54 acres. It is also his case that the plaintiff grabbed, much more area than 4.54 acres, of the Gaon Sabha, Village Azadpur. Therefore, defendant No.2 is imputing his knowledge to the Sale Deed and schedules annexed thereto which includes the site plan of the land. 

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: May 26, 2020

 CS(OS) 245/2018, I.As. 9856/2018,

M/S NEGOLICE INDIA LIMITED Vs  PRABHAT BHASKAR / PRABHATBHASKAR.COM

CORAM:

HON'BLE MR. JUSTICE V. KAMESWAR RAO

O.A. 114/2018

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Whether admissibility of document in evidence is necessary for discovery of document?

 Nor do we think that the High Court was right in holding that the documents ordered to be discovered were not relevant to the injury. The documents sought to be discovered need not be admissible in evidence in the enquiry or proceedings. It is sufficient if the documents would be relevant for. the purpose of throwing light on the matter in controversy. Every document which will throw any light on the case is a document relating to a matter in dispute in the proceedings, though it might not be admissible in evidence. In other words, a document might be inadmissible in evidence yet it may contain information which may either directly or indirectly enable the party seeking discovery either to advance his case or damage the adversary's case or which may lead to a trail of enquiry which may have either of these two consequences. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 665(N) of 1972

Decided On: 19.07.1972

Shri M.L. Sethi Vs. Shri R.P. Kapur

Hon'ble Judges/Coram:

K.K. Mathew and P. Jaganmohan Reddy, JJ.

Citations: 1972 AIR 2379, 1973 SCR (1) 697

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Procedure to be followed by court if order of discovery of documents is not complied

 Even assuming that in certain circumstances the provisions of Order XI, Rule 21 must be strictly enforced, it does not follow that a suit can be lightly thrown out or a defence struck out, without adequate reasons. The test laid down is whether the default is wilful. In the case of a plaintiff, it entails in the dismissal of the suit and, therefore, an order for dismissal ought not be made under Order XI, Rule 21, unless the court is satisfied that the plaintiff was wilfully withholding information by refusing to answer interrogatories or by withholding the documents which he sought to discover. In such an event, the plaintiff must take the consequence of having his claim dismissed due to his default, i.e. by suppression of information which he was bound to give : Denvillier v. Myers. (1883) WN 58. In the case of the defendant, he is visited with the penalty that his defence is liable to be struck out and to be placed in the same position as if he had not defended the suit. The power for dismissal of a suit or striking out of the defence under Order XI, Rule 21, should be exercised only where the defaulting party fails to attend the hearing or is guilty of prolonged or inordinate and inexcusable delay which may cause substantial or serious prejudice to the opposite party.

16. It is well settled that the stringent provisions of Order XI, Rule 21 should be applied only in extreme cases, where there is contumacy on the part of the defendant or a wilful attempt to disregard the order of the court is established.

17. An order striking out the defence under Order XI, Rule 21 of the Code should, therefore, not be made unless there has been obstinacy or contumacy on the part of the defendant or wilful attempt to disregard the order of the court. The rule must be worked with caution, and may be made use of as a last resort .

 It was further contended that the High Court was in error in observing that 'in view of the clear language of Order XI, Rule 21' the defendant has no right to cross-examine the plaintiff's witnesses. A perusal of Order XI, Rule 21 shows that where a defence is to be struck off in the circumstances mentioned therein, the order would be that the defendant 'be placed in the same position as if he has not defended'. This indicates that once the defence is struck off under Order XI, Rule 21, the position would be as if the defendant had not defended and accordingly the suit would proceed ex-parte. In Sangram Singh v. Election Tribunal MANU/SC/0044/1955 : [1955]2SCR1 it was held that if the court proceeds ex-parte against the defendant under Order IX, Rule 6(a), the defendant is still entitled to cross-examine the witnesses examined by the plaintiff. If the plaintiff makes out a prima facie case the court may pass a decree for the plaintiff. If the plaintiff fails to make out a prima facie case, the court may dismiss the plaintiff's suit. Every Judge in dealing with an ex-parte case has to take care that the plaintiff's case is, at least, prima facie proved.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2126 of 1978

Decided On: 07.08.1978

Babbar Sewing Machine Company Vs. Trilok Nath Mahajan

Hon'ble Judges/Coram:

A.N. Sen, D.A. Desai and Jaswant Singh, JJ.

citations: 1978 AIR 1436, 1979 SCR (1) 57

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Whether suit is liable to be dismissed if there is non compliance of order of court?

Order XI, rule 21 of the Code of Civil Procedure reads: "21. Where any party fails to comply with any order to answer interrogatories, or for discovery of 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 accordingly."

Section 136 of the Code of Civil Procedure, 1882, corresponding to order XI, rule 21 of the C.P.C. 1908, was based upon order XXXI, rule 20, now replaced by order XXIV, rule 16 framed under the Judi-

cature Act. The practice of the English Courts is, and it has always A been, to make the order a conditional one, and to grant a little further time for compliance. In practice this provision is virtually obsolete(l).

Even assuming that in certain circumstances the provisions of order Xl, rule 21 must be strictly enforced, it does not follow that a Suit can be lightly thrown out or a defence struck out, without adequate reasons. The test laid down is whether the default is wilful. In the case of a plaintiff, it entails in the dismissal of the suit and, therefore, an order for dismissal ought not be made under order XT, rule 21, unless the court is satisfied that the plaintiff was willfully withholding information by refusing to answer interrogatories or by withholding the documents which he sought to discover. In such an event, the plaintiff must take the consequence of having his claim dismissed due to his default, i.e. by suppression of information which he was bound to give: 

Supreme Court of India

Babbar Sewing Machine Co vs Trilok Nath Mahajan on 7 August, 1978

Equivalent citations: 1978 AIR 1436, 1979 SCR (1) 57

Hon'ble Judges/Coram:

A.N. Sen, D.A. Desai and Jaswant Singh, JJ.

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Whether order of discovery of document becomes invalid on the ground that documents sought to be discovered are not specified?

We think that the High Court was wrong in holding that since the application for discovery did not specify the documents sought to be discovered, the lower Court acted illegally in the exercise of its jurisdiction in ordering discovery. Generally speaking, a party is entitled to inspection of all documents which do not themselves constitute exclusively the other party's evidence of his case or title. If a party wants inspection of documents in the possession of the opposite party, he cannot inspect them unless the other party produces them. The party wanting inspection must, therefore, call upon the opposite party to produce the document. And how can a party do this unless he knows what documents are in the possession or power of the opposite party ? In other words, unless the party seeking discovery knows what are the documents in the possession or custody of the opposite party which would throw light upon the question in controversy, how is it possible for him to ask for dis- covery of specific documents ? 

Supreme Court of India

M. L. Sethi vs R. P. Kapur on 19 July, 1972

Equivalent citations: 1972 AIR 2379, 1973 SCR (1) 697

Bench: Mathew, Kuttyil Kurien

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Whether it is permissible to Strike of defence for non-compliance of order of discovery?

Order XI, rule 21 of the Code of Civil Procedure reads: "21. Where any party fails to comply with any order to answer interrogatories, or for discovery of 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 accordingly."

It is well settled that the stringent provisions of order XI, rule 21 should be applied only in extreme cases, where there is contumacy on the part of the defendant or a wilful attempt to disregard the order of the court is established.

An order striking out the defence under order XI, rule 21 of the Code should, therefore, not be made unless there has been obstinacy or contumacy on the part of the defendant or wilful attempt to disregard the order of the court. The rule must be worked with caution, and may be made use of as a last resort:

 The principle governing the court's exercise of its discretion under Order XI, Rule 21, as already stated, is that it is only when the default is wilful and as a last resort that the court should dismiss the suit or strike out the defence, when the party is guilty of such contumacious conduct or there is a wilful attempt to disregard the order of the court that the trial of the suit is arrested. Applying this test, it is quite clear that there was no wilful default on the part of the defendant of the court's order under Order XI, Rule 18(2) for the production of documents for inspection, and consequently, the order passed by the trial court on 23 May, 1967, striking out the defence of the defendant must be vacated, and the trial must proceed afresh from the stage where the defendant was not permitted to participate.

Supreme Court of India

Babbar Sewing Machine Co vs Trilok Nath Mahajan on 7 August, 1978

Equivalent citations: 1978 AIR 1436, 1979 SCR (1) 57

Hon'ble Judges/Coram:

A.N. Sen, D.A. Desai and Jaswant Singh, JJ.

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Use of technology for discovery and disclosure in court

How you can meet your discovery and disclosure deadlines?

Despite the varying discovery and disclosure laws/ practices in different countries, with the internationalisation of business and tighter government oversight, one trend is clear: corporations and outside counsel will be challenged to collect and review increasing volumes of potentially relevant evidence for investigations or litigation. The electronic nature of the vast majority of the documents makes this a daunting task. Email and instant messaging have become primary modes of communication; even phone and fax systems are often integrated into a corporation’s network. Each potential witness or document custodian may be dealing with hundreds of email messages and other electronic documents on a daily basis. There is little that is not created, edited or saved on a user’s hard drive, on a network, or on backup systems. Virtually everything is retrievable, and is often readily available in enormous quantities.

Attorneys who specialise in large scale commercial litigation and FCPA investigations are aware of the costs and options relating to collecting and processing the documents, often referred to as ‘e-discovery’. Many attorneys however are not aware that the time and expense of reviewing the documents for relevance usually outweighs the other discovery and disclosure components. Millions of documents can be collected in a few days from just a modest number of custodians. Even with 100 dedicated reviewers, it may be impossible for counsel to review all of the potentially relevant documents quickly enough to meet the deadlines imposed by the courts or investigatory agencies. Because of the role attorneys must play in analysing documents, the review component will remain more labour intensive until computers are intelligent enough to analyse documents in the same way trained attorneys do.

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Production of electronic document in which formatt can be asked?

The Plaintiff brought a motion for the production of Word documents in native file format. The Producing Party had produced the files as non-searchable PDF’s. The Plaintiff argued the PDF’s lacked the metadata that showed who created the Word documents, revisions and when the files were printed. Crissen v. Gupta, 2013 U.S. Dist. LEXIS 159534, at *20 (S.D. Ind. Nov. 7, 2013).

The Producing Party countered that the Plaintiff did not state the form of production in their request and that they did not have to produce ESI in more than one form pursuant to Federal Rule of Civil Procedure 34(b)(2)(E)(iii).  Crissen at *20-21.

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Whether authorities under payment of Wages Act has jurisdiction to order discovery of document?

 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". These provisions would therefore squarely fall within the ambit of the words used in Section 18 of the Payment of Wages Act, viz., "all the powers of a Civil Court under the Code of Civil Procedure, 1908, for the purpose of .....compelling the production of documents." Inspection is only a step-in-aid of the final production of the documents. Upon this view, therefore, the authority under the Payment of Wages Act had the jurisdiction to order the petitioner to make discovery of the documents in his possession.

Bombay High Court

Manager, Ramkrishna Ramnath Bidi ... vs First Civil J. First Class, Nagpur ... on 9 July, 1958

Equivalent citations: AIR 1959 Bom 181, (1959) 61 BOMLR 39, ILR 1959 Bom 850

Bench: J Mudholkar, S Kotwal

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