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Discovery of Documents in CPC

Updated: May 5

Discovery of Documents in CPC


There are two types of discovery:

(i) discovery through interrogatories, and

(ii) discovery of documents.

As a general rule, a party has the right to inspect all documents that aren't exclusively considered the other party's evidence for their case or title.

If one party wishes to inspect documents held by the opposing party, they cannot do so unless those documents are produced by the other party. Therefore, the party seeking inspection must request the opposite party to produce the documents.

But how can a party make such a request if they are unaware of the documents in the possession or control of the opposing party?

In simpler terms, if the party seeking discovery doesn't know which documents the opposing party holds that could shed light on the disputed matter, how can they request the discovery of specific documents?

Rule 12 of Order XI, therefore, allows a party to apply to the court, without submitting an affidavit, to compel their opponent to disclose the documents in their possession or control pertaining to any relevant matter in question.

If the court issues an order for discovery, the opposing party is obligated to provide an affidavit of documents.

Failure to do so may result in penalties as specified in Rule 21 of Order XI. An affidavit of documents must detail all the documents that are or have been in the party's possession or control concerning the matter under consideration in the proceedings.

Furthermore, regarding documents that were previously in their possession or control but are no longer, the party must disclose their whereabouts and who currently holds them.

This enables the opposing party to request production from those individuals who now possess the documents.

Object of Discovery of Document

The purpose of this procedure is twofold:

(i) firstly, to ensure, to the extent possible, the sworn disclosure of all relevant documents in the possession or control of the opposing party, under the threat of penalties for making a false oath; and

(ii) secondly, to prevent what could otherwise lead to a prolonged investigation into the relevant documents actually held by the opposing party.

Consequently, this procedure

(a) obtains admissions;

(b) avoids the need for extensive evidence presentation; and

(c) speeds up the trial of cases, thereby aiding courts in the administration of justice.


Who may seek discovery?

Any party involved in a suit has the right to request discovery. They can do so by applying to the court for an order of discovery, either by submitting an affidavit or through other means.

If the court grants the request for discovery, the opposing party must then provide an affidavit detailing all the documents that are or have been in their possession, custody, or control.

Who may be ordered?

Discovery may be ordered against any individual who is a party to the suit. In cases where a suit is initiated by a nominal plaintiff, such as a benamidar, the actual person or persons with vested interest may also be directed to provide discovery.



A court may order discovery of documents if the following conditions are met:

(i) It is necessary for the fair resolution of the suit, or 

(ii) It is for the purpose of saving costs.

Objection as to Discovery

Objection to discovery can be raised on the basis that it is either unnecessary or untimely in the course of the suit. Such objections or reasons against discovery should be clearly and explicitly stated in the affidavit.

Merely asserting that the documents are privileged is insufficient. It is also necessary to specify how they are privileged in order to allow the court to make a determination regarding the claim.

Privileged Document

English law acknowledges "Crown Privilege," which stems from the fundamental principle that "public welfare is the highest law" (salus populi est suprema lex).

While public interest mandates the pursuit of justice, it also necessitates the withholding of documents under specific circumstances.

However, it is important to note that in cases where privilege is claimed, the court retains the authority to examine the document to determine the validity of the claim. Mere assertion by the opposing party is not conclusive.

Oppressive Discovery

Opposition to discovery can also be based on the assertion that it is "unduly oppressive" to the party required to provide discovery. When considering this matter, the court weighs two competing factors:

i) the significance of the discovery to the party requesting it, and

(ii) the burden placed on the opposing party in providing the discovery. The determination of whether the discovery is oppressive or not is a factual question that relies on the specific circumstances of each case.

Premature Discovery

Rule 20 of Order XI grants the court the authority to defer premature discovery or inspection. Discovery is deemed premature when the entitlement to discovery hinges upon the resolution of any contested issue or question, or for any other reason it is deemed preferable for a disputed issue or question in a lawsuit to be settled prior to determining the right to discovery.

In such instances, the court may direct that the issue or question be resolved first and postpone the decision regarding discovery until afterward. The purpose of this provision is to enable the court to adjudicate on an issue within a lawsuit, distinct from the lawsuit itself.

However, it's important to note that this rule does not apply when discovery is deemed necessary for resolving such an issue or question.


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