Order XI CPC: Discovery, Production and Inspection of Documents

A trial in which each side learns the other's case only in the witness box is a trial by ambush. Order XI of the Code of Civil Procedure, 1908 prevents it by giving each party the means to find out, before trial, what the other knows and what documents he holds: interrogatories for facts, discovery and production for documents, and inspection for the documents themselves. These notes cover the whole Order, the consequences of non-compliance, the limits on the power, and the far stricter regime the Commercial Courts Act, 2015 has installed for commercial suits.

The three devices of Order XI, the sanctions for non-compliance, and the commercial suits regime

1. The Object of Discovery

Discovery serves three purposes that a good answer should name. It enables a party to know the case he has to meet, so that the trial turns on real disputes. It narrows the issues, by extracting admissions that make proof unnecessary. And it saves time and cost, by preventing the adjournments that follow surprise. Two devices operate on facts, the interrogatories, and two on documents, discovery and inspection; the court controls both through the requirement of leave and the limits in Rule 22.

2. Interrogatories: Rules 1 to 11

Leave to deliver interrogatories

Leave of the court is required, and Rule 2 governs its grant: on an application for leave, the particular interrogatories proposed must be submitted, and the court decides within seven days, allowing only those it considers necessary either for disposing fairly of the suit or for saving costs. The court may strike out interrogatories that are prolix, oppressive, unnecessary or scandalous. Rule 6 allows any interrogatory to be set aside on the ground that it has been exhibited unreasonably or vexatiously, or struck out on the ground that it is prolix, oppressive, unnecessary or scandalous.

What may and may not be asked

i. Rule 5: only matters in question. Interrogatories which do not relate to any matter in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.

ii. Facts, not evidence. The settled principle is that a party may interrogate as to facts that support his own case or impeach his opponent's, but not as to the evidence by which his opponent proposes to prove his case, and not to conduct a fishing inquiry into a case he has not pleaded.

iii. Rule 3: corporations. Where a party is a corporation or a body of persons, the court may order that any member or officer be interrogated.

iv. Privilege. Interrogatories relating to privileged matter, such as communications between a party and his legal adviser protected by the Evidence Act, need not be answered, and Rule 6 expressly preserves the right to object.

Answers and objections

Rule 8 requires interrogatories to be answered by affidavit within ten days, or such other time as the court allows, and Rule 9 prescribes the form. Rule 6 allows objection to be taken by the answering party in the affidavit itself, on grounds including privilege, irrelevance, and that the interrogatory is scandalous or exhibited in bad faith, the sufficiency of the objection being decided by the court. Where an answer is insufficient, Rule 11 empowers the court to require a further answer, either by affidavit or by oral examination.

3. Discovery and Production of Documents: Rules 12 to 14

i. Rule 12: discovery of documents. Any party may, without filing any affidavit, apply for an order directing any other party to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question in the suit. The court may refuse or adjourn the application if satisfied that discovery is not necessary at that stage, or make such order, either generally or limited to certain classes of documents, as may be thought fit.

ii. Rule 13: affidavit of documents. The affidavit is to be made in the form prescribed in Appendix C, and it must disclose the documents the party has, those he has had and parted with, and those he objects to producing, with the grounds of objection.

iii. Rule 14: production of documents. The court may, at any time during the pendency of any suit, order the production by any party of such of the documents in his possession or power, relating to any matter in question in the suit, as the court shall think right, and may deal with the documents when produced in such manner as shall appear just.

4. Inspection and Notice to Produce: Rules 15 to 19

i. Rule 15: notice to produce. 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, to produce it for the inspection of the party giving notice and to permit him to take copies.

ii. Rule 16: notice to inspect. The party receiving such notice must, within ten days, deliver a notice stating the time at which the documents may be inspected, and objecting to produce any of them on the grounds stated.

iii. Rule 17: time for inspection. The party giving the notice may inspect the documents at the time and place stated.

iv. Rule 18: order for inspection. Where the party served with notice omits to give notice of a time for inspection, or objects, the court may, on the application of the party desiring inspection, make an order for inspection in such place and manner as it thinks fit, but shall not make such an order where it is not necessary either for disposing fairly of the suit or for saving costs.

v. Rule 19: verified copies. Where inspection of business books is sought, the court may order copies of the relevant entries to be furnished and verified by affidavit, instead of ordering inspection of the books themselves.

5. Non-Compliance and Striking Out: Rule 21

The sanction is the strongest the Code gives for a procedural default, and the courts have accordingly held that it is to be used as a last resort, where the default is wilful or contumacious, and not for a first or excusable failure. The proper course in an ordinary case of delay is to give a further opportunity, with costs; striking out a defence, which puts the defendant in the position of one who never defended, is reserved for deliberate disobedience, because it decides the case without a trial. Note sub-rule (2): a dismissal under this rule, like a dismissal under Order IX Rule 8, bars a fresh suit on the same cause of action.

6. Limits on the Power: Rule 22 and Privilege

i. Necessity. By Rules 2 and 18, and as a general principle, the court makes no order for interrogatories, discovery or inspection unless it is necessary either for disposing fairly of the suit or for saving costs.

ii. Privilege. Documents protected by legal professional privilege, and communications the Evidence Act protects, are not subject to inspection, and the objection is taken in the affidavit of documents.

iii. Documents relating solely to a party's own case. A party need not disclose for inspection documents that relate exclusively to his own title or case, since discovery exists to reveal the opponent's case, not to hand him one.

iv. No fishing inquiry. Discovery may not be used to explore whether a case exists; it presupposes a pleaded case and is confined to the matters in question in the suit, under Rule 5.

v. Public interest. Documents whose production would be injurious to the public interest are protected under Sections 123 and 124 of the Evidence Act, read with Section 162.

7. Electronic Documents and Discovery in Commercial Suits

The Code's definition of a document has long been read to include records in electronic form, an approach reinforced by the Information Technology Act, 2000 and by Section 65B of the Evidence Act on the admissibility of electronic records; discovery and inspection therefore extend to emails, databases and stored files, subject to the same tests of relevance and necessity. The far greater change, however, came from outside the Code.

8. Landmark Points on Order XI

- Order XI Rules 2 and 18. No order for interrogatories or inspection unless necessary either for disposing fairly of the suit or for saving costs.

- Order XI Rule 5. Interrogatories not relating to a matter in question in the suit are deemed irrelevant, however admissible they might be in cross-examination.

- Order XI Rule 21. Dismissal for want of prosecution or striking out of the defence is the sanction for non-compliance, reserved for wilful or contumacious default; a dismissal under it bars a fresh suit.

- M.L. Sethi v. R.P. Kapur, (1972) 2 SCC 427. The scope of discovery under Order XI and the court's control over its exercise, including the principle that discovery is confined to matters in question and is not a means of fishing for a case.

- Commercial Courts Act, 2015, Schedule. The recast Order XI for commercial suits: disclosure on oath with the pleadings, and no reliance on undisclosed documents without leave.

9. Frequently Asked Questions on Order XI

What is the object of discovery under Order XI CPC?

To enable each party to know the case he has to meet, to narrow the issues by extracting admissions, and to save time and cost by preventing surprise at the trial. Order XI achieves this through interrogatories for facts, discovery and production for documents, and inspection of the documents themselves.

Are interrogatories allowed without leave of the court?

No. Order XI Rule 1 requires leave, and under Rule 2 the proposed interrogatories must be submitted with the application; the court allows only those necessary for disposing fairly of the suit or for saving costs, and may strike out interrogatories that are prolix, oppressive, unnecessary or scandalous.

What is the difference between discovery, production and inspection?

Discovery requires a party to disclose on oath what documents he has or has had; production requires those documents to be brought before the court; and inspection allows the other party to see and take copies of them. The three are logically sequential steps in making the documentary record available.

Can a party be interrogated about the evidence of his opponent?

No. Interrogatories may be directed to facts supporting the interrogating party's case or impeaching his opponent's, but not to the evidence by which the opponent proposes to prove his case, and not as a fishing inquiry into a case that has not been pleaded.

What happens if a party does not comply with an order for discovery?

Under Order XI Rule 21 a plaintiff is liable to have his suit dismissed for want of prosecution and a defendant to have his defence struck out, being placed as if he had not defended. The sanction is reserved for wilful or contumacious default, and a dismissal under the rule bars a fresh suit on the same cause of action.

Does Order XI apply to electronic documents?

Yes. A document includes a record in electronic form, and discovery and inspection extend to emails, databases and stored files, subject to relevance, necessity and privilege. Admissibility is governed by Section 65B of the Evidence Act.

How is discovery different in commercial suits?

The Commercial Courts Act, 2015 substitutes a new Order XI under which disclosure is owed rather than sought: each party files with its pleading a list of all documents in its power, possession, control or custody, with copies and a declaration on oath, and an undisclosed document cannot be relied on at trial without the leave of the court.

10. Related Topics in This CPC Series

- Order X: Examination of Parties and Reference to Settlement

- Commercial Courts Act Amendments to the CPC

- Order VII: The Plaint, Return and Rejection

- Order VIII: Written Statement, Set-Off and Counterclaim