Monday, 20 June 2022

Discovery and Inspection in a Civil Suit

 Discovery and Inspection in a Civil Suit 


Documents:

  • Every party is entitled to know the nature of the opponent’s case, so at the time of hearing, one is prepared. 

  • One is entitled to obtain admissions and facilitate the proof one his own. 

  • Rules while conducting discovery and inspection:

  • One can ask for inspection and the other party is bound to disclose all material facts which constitute the case but not evidential facts. 

  • One can ask for inspection for all documents in possession of the party which relate to the matter in question in the suit irrespective of whether they are for or against the case. 

  • Discovery can be made through interrogates. 

    • Interrogatories are question that one party administers to another in writing and they are administered only by leave of court. 

    • Interrogatories are not for cross examination, they are to substantiate the facts to fill in the gaps. 

    • The other party is bound to answer the interrogatories by way of affidavits unless they raise objections on the ground of irrelevance, self incrimination, scandalous questions etc. 

    • The question can be obliterated only by a court order. 

    • All interrogatories are to be answered within 10 days of service and if there are further objections, they are to be raised within 7 days of service.

  • After the interrogatory stage is over, the court may call upon the parties to file their affidavit  of documents i.e. the documents upon which one relies (Order XI Rule 13). Once affidavit  of documents is filed, the other party is entitled to go in for an inspection of the documents listed in the affidavit.

  • Inspection of affidavit  of documents is important:

  • To ascertain what documents’ existence can be denied or admitted. 

  • Gives the opportunity to go through the content of the documents that the other side is relying on. 

  • To ascertain the relevancy of the documents. 

  • Next step is to prepare a statement of admission and denial where one tells the court which documents are admitted and which ones are denied. 

  • One gives a notice to his adversary to admit certain facts or documents which he wants to rely upon.  However, if no such admission is made by the adversary where it ought to have been made, he will be liable to pay the costs for proving the document (Order XII Rule 2-5).  This refers to those common document which both the parties are relying upon.

  • One can call upon the adversary by making an application before the court for production of documents which are in his possession. For production of documents, witnesses etc. one relied upon Order 11, 12 and 16.

  • Documents which are commonly admitted are not put to try. Whereas, documents which are not admitted are put to trial and are required to be proved. 


Witnesses:

  • A list of witnesses one wants to summon is submitted to the court and a notice is also to be sent to the witnesses informing them about the date, time, court they are required to be present at to give their evidence. 

  • Affidavit of statement in chief is required to be filed for each witness.  

  • A witness ideally has to come before the court on the date of cross examination. If the witness fails, absconds or denies to do so, then court can call upon the witness to be present to give his evidence. If the witness does not answer the summon either, then the court will issue a proclamation requiring him to attend and at the same time, the court may also issue a warrant of his arrest or attachment of property (exemptions mentioned in Sec. 60 of CPC).

  • If the witness does not come until the warrant is issued, on appearing he has to satisfy the court that there was sufficient cause for him to not be in a position to answer the summons and come earlier. 

  • The court may order for property to be released from attachment once he appears and if he does not, the court may impose fine and order the attached property to be sold for payment of the fine. 

  • Costs with regard to issue of summons is to be borne by the party calling the witness. 

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