In a Case before it, the Hon’ble Apex
Court had the occasion to reiterate that:
“Truth is the foundation of Justice. The
entire judicial system has been created only to discern and find out the real
truth. Judges at all levels have to seriously engage themselves in the journey
of discovering the truth. That is their mandate, obligation and bounden duty”.
(AIR 2012 SC 1727)
Notwithstanding, holy pronouncements such as above, Parties to the litigation play tricks, invent false and fabricated Cause of action, makes evasive and ambiguous replies, distort and suppress facts and documents that are prejudicial to their Case.
Nevertheless, the Law has answer to every trick. The Civil Procedure Code, that is, the CPC, provides a fascinating tool to discover the Truth of the matter.
The CPC, under Order XI, provides for Discovery of “Truth” by production of documents and Discovery by putting up Interrogatories.
Discovery means the act of revealing or disclosing any matter by a Defendant in his answer to a suit filed against him in the Court of law. The Defendant may also take the aid of Discovery, to destroy the Case of the Plaintiffs.
Interrogatories are specific questions in writing, demanding Answer on Affidavit from the Adversary.
Under these two means of Discovery, the Plaintiff may call upon the Defendant, or the Defendant may call upon the Plaintiff, to produce such documents for Inspection, and / or may call upon to Answer certain Questions, on Affidavit.
The Plaintiff may call for such documents and may put up such questions to Defendants which will aid the Plaintiff in establishing his Case. Similarly, the Defendant may call for such documents and may put up such questions to Plaintiff which will aid the Defendant in destroying the Case of the Plaintiff.
The scope of Discovery by production of documents and by administering Interrogatories, can best be appreciated by studying Case laws, wherein the Courts have liberally permitted these means of Discovery, to discover the Truth of the matter.
In an interesting Matrimonial dispute before Hon’ble Bombay High Court, the Hon’ble Court allowed the Discovery by Ordering production of certain documents and Discovery by Interrogatories, thereby directing the Defendant to Answer certain Questions on Affidavit. (AIR 1998 Bom 302)
In the above Case, the Hon’ble Court permitted the Plaintiff to seek Discovery by these two means, immediately after filing of the Suit and even before filing of Written Statement by the Defendant.
The Defendant raised the objection to such “Discovery” contending that: (a) Defendant has not relied upon those Documents for which production and Inspection is demanded; (b) This “Discovery” Application is premature because Defendant has not even filed his Written Statement; (c) The “Discovery” Application are making “fishing” enquiries.
The Hon’ble Court outright rejected all the objections of the Defendant. The Hon’ble Court reasoned that:
(a) The Documents that are demanded for Inspections, are in the exclusive control and possession of Defendant;
(b) The documents and the questions that have been put up in the Interrogatory, are extremely relevant for the issue which is to be decided in the Suit, and has direct nexus with the Reliefs claimed by the Plaintiff;
(c) The plaintiff under Order XI, Rule 1 of C.P. Code can deliver relevant interrogatories to the defendant even before the filing of the Written Statement. In fact, the defendant, as a rule, is not allowed to deliver interrogatories to the plaintiff before he has filed Written Statement;
(d) It is also a settled legal position that as a general rule, interrogatories are to be allowed, whenever the answer to them will serve either to maintain the case of the party administering them or to destroy the case of the adversary;
(e) Discovery by production of documents or the Discovery by Interrogatories should be permitted liberally, whenever it can shorten litigation and serve the interest of justice;
(f) By permitting “Discovery”, it will help the Plaintiff in proving / establishing her Case.
In yet another significant Case, the
Hon’ble Calcutta High Court permitted the Discovery by Interrogatory. (AIR 1960
Cal 536)
It was a kind of commercial dispute. The Plaintiffs and Defendants have entered into certain transaction of purchase and Sale. One of the terms of business was that the Plaintiff would advance monies to on account of the defendants at the request of the defendant by way of temporary accommodation repayable on demand. The Plaintiff claimed to have advanced monies for and on behalf of Defendants, which the Defendants denied, forcing the Plaintiff to file the Suit for certain monies. The Defendants in their WS denied of any such term of the business.
In this backdrop, the Plaintiff took out Application for leave to Administer / deliver Interrogatories. The Defendants took strong objection. The Defendants contended:
(a) The interrogatories asked for are matters of evidence to be gone into at the hearing or when accounts are to be taken;
(b) The answers to the interrogatories are best known to the plaintiff;
(c) Interrogatories should not be allowed because the plaintiff has to prove his case and unless he has discharged the onus, the defendant is not liable to answer any question.
(d) The plaintiff should possess evidence in support of his case and he could not obtain proof of his case by extracting interrogatories.
The Hon’ble Court rejected all the
aforesaid objections. The Hon’ble Court reasoned that:
(a) Interrogatories asked for are relevant and arise on the issues and will shorten the trial and may also show that the defence which is set up is unfounded. The interrogatories should, therefore be allowed.
(b) The Hon’ble Court further relied upon an English Ruling wherein the House of Lords observed to say that: “It is no sufficient objection that the plaintiff may have, and to some extent (on his own showing) has, other means of proving the facts enquired after. Admissions of facts by the defendant might simplify the proof and materially diminish the expense of trial.”
(c) The Hon’ble Court ruled that such Questions may be allowed in the Interrogatory that may elicit Admission of such facts which are essential for the Interrogator to prove, in order to establish his Case.
The Hon’ble Court held that: It is not a
good objection to allowing interrogatories, that the party interrogating has
other means of proving the facts in question since one legitimate purpose of
interrogatories is to obtain admission.
The Hon’ble Court cited another English Ruling. It said, in the case of Nash v. Layton, (1911) 2 Ch. 71, the defendant pleaded that the plaintiff was a money lender and the defendant was held entitled to interrogate the plaintiff as to what other loans he had transacted during a reasonable period before the Inan in question and as to what security and at what rate of interest. Where an account is claimed or questions of account arise, interrogatories as to details of the accounts may be allowed.
The Hon’ble Court cited another English Ruling. It said, in the case of Saunders v. Jones, (1877) 7 Ch. D 435, the defendant employed the plaintiff as manager of his business under a written agreement at a salary and a commission on the gross! amount of sales. Disputes arose; the defendant dismissed the plaintiff.
The plaintiff commenced an action for wrongful dismissal. The plaintiff exhibited 4 interrogatories, of which the substance was to ask the defendant to specify the acts of misconduct and a fifth interrogatory asking for the total amount of the gross proceeds of sales during the period for which the plaintiff claimed remuneration.
The defendant refused to answer the first four interrogatories, on the ground that they related to the case of the defendant and not of the plaintiff, and the fifth interrogatory, on the ground that the right to action was disputed and the defendant was not bound to give such amount at that stage of the action. In the present case it was also contended that the defendant having denied that monies were paid the plaintiff was not entitled to interrogatories.
James, L. J. at p. 449 of the report said: “If the plaintiff succeeds in his contention that he is entitled to a fixed commission upon the amount, his having that amount admitted would enable him at the trial, without any further enquiry or litigation, to obtain a decree for the payment of that which is due to him.”
To summarize the above discussion:
1. The Law positively comes to the aid of Plaintiff and empowers the Plaintiff to even secure evidences from the Defendant, to prove and establish his Case;
2. The Application for Discovery by production of certain documents and / or Discovery by Interrogatories, may be permitted even before filing of Written Statement by Defendant; and can be made at the stage before leading of Evidence by any of the parties;
3. The documents under Discovery and the Questions that have been put up in the Interrogatory, must have a direct bearing to the controversy that have arisen in the matter / Suit; and such documents or Questions have direct nexus with the Reliefs claimed in the Suit;
4. The subject documents demanded for production and Inspection, must be in the exclusive control and possession of the adversary;
5. The Application, for Discovery by means of production of certain documents or by the means of Interrogatories must be permitted, (a) To enable the party to prove and establish his Case, or (b) To destroy the Case of the Adversary, or (c) To elicit Admission of material facts;
And therefore there is no illegality if the Plaintiff (by adopting means of Discovery) seeks to gather material from the Defendants, to prove his Case; and similarly, there is no illegality, if the Defendant seeks to gather material from the Plaintiff, to destroy the Case of the Plaintiff;
6. Where an account is claimed or questions of account arise, interrogatories as to details of the accounts may be allowed;
7. The Arguments in opposition to “Discovery” that: (a) the interrogatories asked for are matters of evidence to be gone into at the hearing or when accounts are to be taken; (b) The answers to the interrogatories are best known to the plaintiff; (c) Interrogatories should not be allowed because the plaintiff has to prove his case and unless he has discharged the onus the defendant is not liable to answer any question; (d) The plaintiff should possess evidence in support of his case and he could not obtain proof of his case by extracting interrogatories, (e) Defendant has not relied upon those Documents for which production and Inspection is demanded; (f) “Discovery” Application is premature because Defendant has not even filed his Written Statement; (c) The “Discovery” Application are making “fishing” enquiries; deserves to be rejected at the outset.
8. The very purpose of “Discovery” by ordering production of documents or by ordering Answer to Interrogatories, is to reach to the Truth of the matter.
9. Therefore, in every Case: (a) Where the Plaintiff who has a legitimate Claim against the Defendant, but does not have in his possession all the Evidences to prove his Case, and where such Material / Evidence is in the possession of the Defendant, the Plaintiff may approach the Court for discovery of such Material / Evidence, either by calling for production of relevant documents, or by putting up relevant specific questions / Interrogatories; (b) Where the Defendant evades to answer specific plea of the Plaint, or the Defendant suppresses any document in the Written Statement, the disclosure of which will expose the defense of the Defendant, the Plaintiff may take the aid of “Discovery”; (c) Where the Plaintiff, with the interplay of words, invent a false and fabricated Cause of action, the Defendant may take the aid of “Discovery” to expose the Case of the Plaintiff; (d) And either of the parties to the Litigation may take recourse to Discovery, to elicit “Admission of such facts” from the adversary, to establish their Case, or to destroy the Case of the adversary;
10. Effective application of Discovery by production of documents and/ or by putting up Questions thru Interrogatories may be an effective medium to seek redressal against Public Authorities;
11. Where Information sought under Right to Information Act, 2005, is unlawfully denied, any such information and documents may be obtained thru Interrogatories, of course by filing Suit.
Whereas the tool of “Discovery” is essentially available in Suit proceedings, the powers of Discovery may be exercised by Statutory Tribunals, depending upon the nature of powers conferred upon them in the subject Statute.
Apart from this provision, Section 165 of Indian Evidence Act, 1872, recognizes the inherent powers of the Court to find out and reach to the truth of the matter.
Section 165 of Indian Evidence Act, 1872, empowers every Judge, so as to discover or to obtain proper proof of relevant facts, to ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, however, subject to mandate of Sections 121 to 131 of Indian Evidence Act, 1872 Act, and of course subject to protection afforded to Accused persons from Self-Incrimination and other protection afforded under Article 20 of the Constitution of India.
Another fascinating aspect of Section 165 is that, this Section can be applied at any stage of the legal proceedings, be it Original, Appellate, Revisional or Review; and can be applied across jurisdictions, whether Civil, Criminal, or Revenue or any jurisdiction having attributes of judicial proceeding.
In a Case before it, the Hon’ble Apex Court observed to say that: …if the lapse or omission is committed by the investigative agency or because of negligence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of the Courts getting at the truth by having recourse to Secs. 311 and 391 of the Code and Sec. 165 of the Evidence Act at the appropriate and relevant stages and evaluating the entire evidence; otherwise the designed mischief would be perpetuated with a premium to the offenders and justice would not only denied to the complainant party but also made an ultimate casuality. [AIR 2004 SC 3114]
In a very recent ruling, the Hon’ble Apex Court had the opportunity to lay emphasis upon the mandate of Section 165 of the Evidence Act. The Hon’ble Court said: We say this for the reasons that under Section 165 of the Act, a trial judge has tremendous powers to “ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant”. It is in fact the duty of the Trial Judge to do so if it is felt that some important and crucial question was left from being asked from a witness. The purpose of the trial is after all to reach to the truth of the matter. [Criminal Appeal No: 530 of 2022; May 04, 2023]
Therefore, the Courts and Tribunals may be persuaded to exercise their powers. It is said that when a power is conferred, and whence it is shown that the circumstances exist for the due exercise of those powers, then such powers must be exercised, failing which it may be argued that the Courts / Authority have failed to exercise the jurisdiction vested in it. Therefore, Application may be taken out under the provisions of Discovery or u/s 165 of Evidence Act, requesting the Court / Tribunal to exercise their powers / jurisdiction, thereby compelling the adversary to answer such questions, or to produce such things or documents, that are extremely relevant for the truthful decision of the Case.
Sandeep Jalan
Advocate
https://www.litigationplatform.com/
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