Whether court can refuse to order production of document by applying test of comparative hardship between parties?

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. The Court also has been given power to deal with the documents when produced in such manner as shall appear just. Therefore, the power to order production of documents is coupled with discretion to examine the expediency, justness and the relevancy of the documents to the matter in question. These are relevant considerations which the Court shall have to advert to and weigh before deciding to summoning the documents in possession of the party to the election petition.

8. Without applying any of these tests, the court below allowed the respondent's application holding that refusal of application would otherwise cause a very valuable piece of evidence in favour of the respondent to be shut out. The objection of the petitioner that passport is in his current use and parting of it would result in putting an end to his stay in Abu Dhabi was not accepted by the court below as if it did not merit any consideration under law. It is a common knowledge that a resident will not be permitted to stay in a foreign country unless he holds original passport in his possession since its production could be insisted by the authorities whenever necessary. Therefore the order of the court for production of the original for comparison by a handwriting expert would only deprive petitioner's right to stay abroad. However, the position would have been different had the direction of the court been limited to production of the passport solely for the inspection of the respondent.

9. The court below while taking care of the respondent's concern and interest in the suit, however, failed to consider the hardship exposed to the petitioner while ordering production of original passport. The extent or degree of comparative hardship likely to be suffered by the petitioner in this respect did not engage the attention of the court below. The test of comparative hardship between parties is also one of the tests to be applied by the courts in deserving cases of this nature when parties to suit apply for production of document invoking Order XI Rule 14 of the Code.

10. Order XI Rule 14 of the Code does not attach to a party an absolute right to insist for production of a document in the possession of the adverse party in support of proof of his case. The right of the applicant is liable to be determined by the court in the light of the test of expediency, justness and relevancy as held by the Hon'ble Supreme Court in the aforesaid decision. Any direction to produce the original passport of the petitioner in court affecting his right to stay abroad will only place him comparably in great hardship than the respondent who relies on the document and seeks to prove his case. Applying the test in Sasanagouda's case, I am satisfied that the impugned order dated 5.10.2017 does not accord with the interest of expediency or justness and therefore it is liable to be set aside as being illegal.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP (C) No. 492 of 2018

Decided On: 05.02.2019

Thundiyil Abdurahiman  Vs.  Asharaf Kalapeedikayil

Hon'ble Judges/Coram:

T.V. Anilkumar, J.

Citation: AIR 2020 (NOC) 208 Kerala

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Whether S 163 of Evidence Act is applicable to documents produced before court under O 11 R 14 of CPC?

Section 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.

19. The rationale behind the Section seems to be that it would be manifestly unjust and unfair to permit one to gain an undue advantage by looking into the documents of his opponent without being obliged to use it as evidence for both of them. Under the pretext of a desire to use in evidence, a party might call for documents the contents of which were not known to him and finding that they did not suit his purpose or went against him, he might wriggle out of the situation by discarding them. It maybe urged that such a rule is not consistent with the party's right to obtain discovery and inspection. Section 163does not refer to documents produced in obedience to the order of Court under Order 11 Rule 14 of the Code.

Andhra High Court

Rajesh Bhatia And Ors. vs G. Parimala And Anr. on 30 November, 2005

Equivalent citations: 2006 (3) ALD 415, 2006 (3) ALT 129

Bench: T C Rao

Read full judgment here: Click here

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Whether court can dismiss suit or strike out defence for non-compliance of order under Or. 11 R. 14 CPC?

These cases clearly establish the principle that the noncompliance
with an order under O. 11 R. 14 does not and cannot
warrant the dismissal of the suit of a plaintiff or the striking off
of the defence of the party which is guilty of the noncompliance
of the order as such non-compliance does not fall
within the ambit of the three grounds which are stated in the
rule and which only would justify the striking off of the
defence. It may further be pointed out in this connection that
where a party fails to produce certain documents under O. 11
R. 14, the Court would be entitled to raise an adverse
presumption against the party on account of the non-production
of the documents required, but that would not justify its
dismissing a suit in the case of a plaintiff or striking off of the
defence in the case of a defendant. It has to be emphasised in
this connection, and I would do so even at the risk of repetition,
that the provisions of this rule are of a very drastic nature, and it
is only in rare cases that the penalty contemplated under the
rule should be resorted to. Bearing these principles in mind, I
have no hesitation in coming to the conclusion that the order
passed by the Court of first instance dismissing the suit of the 
plaintiff was wholly without justification and that in passing
that order the Court exercised jurisdiction which did not vest in
it in accordance with law. ……….”
(underlining supplied)
21. The consistent view taken by various High Courts across the country
for a considerably long period of time i.e. nearly over 90 years is that an
order under 11 order rule 14 is merely an order to produce documents. Non
compliance of the said order may have several consequences, but the set of
consequences as stipulated by order 11 rule 21 is not one of them. The court
is not given discretion under rule 21 to dismiss the suit for non prosecution
or strike out the defence in case of non compliance of the order of
production. Various other measures may be available/consequences
provided for dealing with a failure to comply with an order of production
under order 11 rule 14, however, we are not in the present case called upon
to deal with the said issue.
22. The impugned order is an order made under Order 11, Rule 14, The
non-compliance of that order does not warrant the striking out of the defence
of the appellant. The grounds upon which the discretion is given to a Court
to strike out the defence of a defendant are given in Rule 21 of Order 11
CPC. According to the said rule, there are three grounds only upon which a
Court is justified in striking out the defence of a defendant or in dismissing
the suit of a plaintiff, namely, (1) the refusal to answer interrogatories, (2)
the refusal to make discovery of documents, (3) refusal to permit inspection
of documents. Rule 14 of Order 11 CPC does not relate either to the
answering of interrogatories or the discovery or inspection of documents. 
The rule relating to discovery is embodied in Rule 12 of Order 11 and the
rule relating to the inspection of documents is to be found in Rule 18 of
order 11. In the present case the learned Judge has not passed any order
either under Rule 12 or Rule 18 of Order 11 CPC. An order under Rule 14 is
clearly not covered within the ambit of rule 21.
23. Further, an order for production under order 11 rule 14 CPC does not
decide or affect any vital and valuable rights of the parties or decide matters
of moment. In any event, prior to passing any order under order 11 rule 21,
the court is to put the defaulting party to notice and give him an opportunity
of being heard. The impugned order does not satisfy the test as laid down in
Shah Babulal Khimji (Supra) and as such the present appeal is not
maintainable.
 IN THE HIGH COURT OF DELHI AT NEW DELHI


Judgment delivered on: 19th January, 2016
FAO(OS) 458/2015 & CM No. 15177/2015
MAJ RETD SUKESH BEHL & ANR ..... Appellants
versus
KONINKLIJKE PHILIPS ELECTRONICS N V ..... Respondent

CORAM:-
HON’BLE MR JUSTICE BADAR DURREZ AHMED
HON’BLE MR JUSTICE SANJEEV SACHDEVA

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Whether one party should seek production of public documents from opposite party?

If the documents are public documents and are in the custody and possession of the public servants who are empowered to grant certified copies thereof, it shall be the endeavour of the party who require them to obtain certified copies whereof in the first instance and produce the same before the Court. If for any reason, certified copies could not be issued, it is open to the party to approach the Court and request it to send for those documents from the possession of the public servant. Rule 128 and 129 of the Civil Rules of Practice clearly envisage the practice in such cases. When that be the procedure to be followed, filing an application under Order 11, Rule 14 of the Code seeking a direction to be issued to the adversary for production of such documents is not the correct approach. Obviously, the application in this case has been filed under Order 11, Rule 14 and the Court below directed the first defendant to produce some of the documents while dismissing the application filed by the plaintiff in respect of the other documents. Such a direction is not required as can be seen from the practice prevailing before the Courts of law and the legal position as discussed hereinabove.

Andhra High Court

Rajesh Bhatia And Ors. vs G. Parimala And Anr. on 30 November, 2005

Equivalent citations: 2006 (3) ALD 415, 2006 (3) ALT 129

Bench: T C Rao

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