Examination of Parties, Interrogatories, Discovery, Inspection and Admissions

Order XI: interrogatories

Rule 1: in any suit the plaintiff or defendant by leave of the Court may deliver interrogatories in writing for the examination of the opposite parties, with a note at the foot stating which of them each person must answer.

Two provisos matter. No party may deliver more than one set of interrogatories to the same party without an order for that purpose. And interrogatories which do not relate to any matter in question in the suit are deemed irrelevant, even though they might be admissible in oral cross-examination. That second proviso is the one to quote: interrogatories are not cross-examination in advance, and the test of relevance is narrower.

Rule 2: the particular interrogatories proposed must be submitted to the Court, which shall decide within seven days of the filing of the application. In deciding, the Court takes into account any offer by the party sought to be interrogated to deliver particulars, make admissions or produce documents. Leave is given only as to such interrogatories as the Court considers necessary either for disposing fairly of the suit or for saving costs.

Rule 8 requires interrogatories to be answered by affidavit within the time the Court allows. Rule 11 allows the Court to require a further answer where an answer is insufficient. Rule 21 is the sanction: where a party fails to comply with an order to answer interrogatories, the plaintiff's suit may be dismissed for want of prosecution, or the defendant's defence struck out and he placed in the same position as if he had not defended.

Order XI: discovery and inspection of documents

Rule 12: 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, or not necessary at that stage, or make such order, generally or limited to classes of documents, as it thinks fit. The proviso is the governing test: discovery shall not be ordered where the Court is of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.

That test, "fairly disposing of the suit or saving costs", appears in both halves of Order XI and is the answer to any question about the limits of discovery.

Rule 13: the discovery is made by an affidavit of documents.

Rules 14, 15 and 18 deal with inspection: the Court may order production of documents in a party's possession, a party may give notice requiring inspection of documents referred to in the other side's pleadings or affidavits, and the Court may order inspection where the other party refuses.

Rule 22: any party may at the trial use in evidence any one or more of the answers of the opposite party to interrogatories, without putting in the others.

Order XII: admissions

Admissions are the cheapest form of proof, and Order XII is built to encourage them.

Rule 1: any party may give notice, by his pleading or otherwise in writing, that he admits the truth of the whole or any part of the case of the other party.

Rule 2: either party may call on the other to admit any document, saving all just exceptions; and a party who refuses or neglects to admit after such notice shall pay the costs of proving that document, whatever the result of the suit, unless the Court otherwise directs. Rule 2A provides that a document is deemed admitted if not denied in the pleadings or by an express refusal within the time fixed.

Rule 4: a party may by notice call on any other party to admit any specific fact, and a party refusing or neglecting to admit within six days or such further time as the Court allows bears the costs of proving that fact, unless the Court otherwise directs.

Rule 6, and this is the one worth remembering: where admissions of fact have been made, either in the pleadings or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion, and without waiting for any other question between the parties to be determined, make such order or give such judgment as it may think fit having regard to those admissions. A judgment so pronounced is followed by a decree.

That rule allows a case to end at once where the defendant has admitted enough to decide it, and it does not require the rest of the case to be tried first.

Order XIII: production, impounding and return of documents

That heading is MU's own phrase. It has set "Production, impounding and return of documents" as a full essay question at least three times, so treat the three words as the three parts of the answer.

Rule 1, production: the parties or their pleaders shall produce, at or before the settlement of issues, all documentary evidence in original where the copies have been filed along with the plaint or written statement. Documents not produced then shall not be received in evidence on behalf of that party at the hearing, without the leave of the Court.

Rule 3: the Court may reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds.

Rule 4: every document admitted in evidence shall be endorsed with the suit number, the name of the party producing it, the date on which it was produced, and the signature or initials of the Judge.

Rule 8, impounding, and this is the middle word of the essay: notwithstanding anything contained in Rule 5 or Rule 7 of this Order or in Rule 17 of Order VII, the Court may, if it sees sufficient cause, direct any document or book produced before it in any suit to be impounded and kept in the custody of an officer of the Court, for such period and subject to such conditions as the Court thinks fit.

To impound is to take a document out of the parties' hands and hold it. The commonest reason is that the document appears to be insufficiently stamped or forged, so that it must be preserved as it stands rather than returned to the person who might alter or destroy it. Note the opening words: the power operates notwithstanding the rules that would otherwise govern the return or rejection of documents.

Rule 9, return: any person, whether a party to the suit or not, who wants back a document he produced and which was placed on the record is entitled to receive it back, unless the document is impounded under Rule 8: where no appeal is allowed, when the suit has been disposed of; and where an appeal is allowed, when the Court is satisfied that the time for appealing has elapsed and no appeal was preferred, or, if one was preferred, when the appeal has been disposed of.

So Rule 8 and Rule 9 lock together: impounding is precisely the exception to the right of return, which is why the examiner asks the three together.

Rule 10 gives the Court power to send for the record of any suit or proceeding from its own records or from another Court.

Section 30 of the Code is the source of all of this, empowering the Court to make such orders as may be necessary or reasonable in all matters relating to the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence. See [Affidavits and Exemption from Personal Appearance], where the rest of section 30 is set out.

A worked example

Manish sues Nandini on a contract, alleging delivery and non-payment. Her written statement denies the contract in general terms and says nothing about a letter she is known to have written.

At the first hearing the Court under Order X Rule 1 asks her, in terms, whether she admits or denies the delivery, and records her answer. Under Rules 1A to 1C it then directs the parties to opt for a mode of settlement under section 89 and fixes a date before that forum.

Manish wants her account of the meeting on oath, before trial. He applies under Order XI Rule 1 for leave to deliver interrogatories, submitting the proposed questions under Rule 2; the Court decides within seven days, and grants leave only as to those it considers necessary for fairly disposing of the suit or saving costs. Questions that do not relate to a matter in question in the suit are deemed irrelevant even though he could have asked them in cross-examination.

He also wants her letter. He applies under Rule 12, without any affidavit, for discovery on oath of documents in her possession or power. She answers by an affidavit of documents under Rule 13. He may then seek inspection under Rules 15 and 18.

She does not comply with the order to answer. Rule 21: her defence may be struck out and she may be placed in the same position as if she had not defended.

He serves a notice to admit the letter and she ignores it. Under Order XII Rule 2 she must pay the costs of proving it, whatever the result of the suit.

Her affidavit in answer admits she received the goods and did not pay, but says she is entitled to set off another claim. Manish applies under Order XII Rule 6. The Court may, without waiting for the set-off to be tried, give such judgment as it thinks fit on those admissions.

At the trial he tries to produce an invoice he never filed. Order XIII Rule 1 shuts it out, because documentary evidence had to be produced at or before the settlement of issues, and it can be received now only with the leave of the Court.

What it does not mean

Interrogatories are not cross-examination in advance. The proviso to Order XI Rule 1 makes questions not relating to a matter in question in the suit irrelevant, even if they would be admissible in cross-examination.

Discovery is not automatic. The test is whether it is necessary for fairly disposing of the suit or for saving costs.

Refusing to admit is not free. Under Order XII Rules 2 and 4 it costs the refusing party the expense of proving the document or fact, whatever the outcome.

Order XII Rule 6 does not require the rest of the case to be decided first. The Court may act on admissions at any stage, of its own motion, without waiting.

A document not produced by the settlement of issues is not automatically admissible later. Order XIII Rule 1 requires the Court's leave.

Quick revision

Order X: at the first hearing the Court ascertains and records admissions and denials on what the pleadings left open, Rule 1; then directs the parties to opt for a section 89 mode of settlement, Rules 1A to 1C; may orally examine any party, Rule 2, the substance being reduced to writing, Rule 3; and may pronounce judgment against a party who refuses or is unable to answer a material question, Rule 4.

Order XI, interrogatories: by leave of the Court, Rule 1; only one set without an order; questions not relating to matters in question are irrelevant even if admissible in cross-examination; leave decided within seven days, and only for what is necessary for fairly disposing of the suit or saving costs, Rule 2; answered by affidavit, Rule 8; non-compliance may mean the suit dismissed or the defence struck out, Rule 21.

Order XI, discovery: application without affidavit, Rule 12; ordered only where necessary for fairly disposing of the suit or saving costs; made by an affidavit of documents, Rule 13; inspection under Rules 15 and 18.

Order XII, admissions: notice admitting the case, Rule 1; notice to admit documents, and the cost of proving falls on the party who refuses, Rule 2; notice to admit facts, Rule 4; and Rule 6, judgment on admissions at any stage, on application or of the Court's own motion, without waiting for other questions.

Order XIII, production, impounding and return: documentary evidence produced at or before the settlement of issues, or not received without leave, Rule 1; irrelevant or inadmissible documents rejected with reasons, Rule 3; admitted documents endorsed, Rule 4; Rule 8, the Court may for sufficient cause impound any document or book produced, to be kept in the custody of an officer of the Court for such period and on such conditions as it thinks fit, notwithstanding Rules 5 and 7 and Order VII Rule 17; Rule 9, any person, party or not, is entitled to the return of a document he produced, unless it is impounded under Rule 8, after disposal of the suit or, where an appeal lies, after the time for appealing has passed or the appeal has been disposed of; Rule 10, the Court may send for records.

Test yourself

1. What does the Court do at the first hearing under Order X? It ascertains from each party or his pleader whether he admits or denies such allegations of fact in the opposite party's pleading as are not expressly or by necessary implication admitted or denied, and records those admissions and denials. It then directs the parties to opt for a mode of settlement outside the court under section 89.

2. What are interrogatories, and can a party deliver them as of right? Interrogatories are written questions delivered for the examination of the opposite party, answered on affidavit. They may be delivered only by leave of the Court under Order XI Rule 1, the proposed questions being submitted under Rule 2, and leave is given only as to those the Court considers necessary for disposing fairly of the suit or for saving costs.

3. May a party ask by interrogatory anything he could ask in cross-examination? No. The second proviso to Order XI Rule 1 provides that 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.

4. What is the test for ordering discovery of documents? The proviso to Order XI Rule 12: discovery shall not be ordered when and so far as the Court is of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.

5. What happens if a party fails to answer interrogatories as ordered? Under Order XI Rule 21 the Court may dismiss the plaintiff's suit for want of prosecution, or strike out the defendant's defence and place him in the same position as if he had not defended.

6. What is the effect of an admission of fact? Under Order XII Rule 6 the Court may, at any stage of the suit, either on the application of any party or of its own motion, and without waiting for the determination of any other question between the parties, make such order or give such judgment as it thinks fit having regard to the admissions, and a decree follows that judgment.

7. When must documentary evidence be produced? At or before the settlement of issues, under Order XIII Rule 1. Documents not so produced shall not be received in evidence on behalf of that party at the hearing without the leave of the Court.