Malabar Produce Export Company and others vs M/s. Nedungadi Bank Ltd.

K. Sukumaran, J.—In the infancy of my professional career I used to hear Justice Vaidialingam sitting in the very court where I now sit, exhorting to the members of the Bar the necessity and desirability of pressing into service the provisions of Order 11 of the CPC relating to discovery and inspection and serving of interrogatories with a view to shorten the life of the litigation and to have effective adjudication of the issues arising in a suit. Perhaps, the learned Judge was drawing on his rich experience at the Bar in the Madras High Court with its original side jurisdiction and where those provisions had been usefully employed by (the members of the Bar, particularly in the commercial litigations. In so doing, the learned Judge was really echoing the sentiments expressed about a century back by the Judges of the English High Court about this "equitable de: vice employed in the Court of Chancery for obtaining the disclosure and inspection of relevant documents as well as the disclosure and admissions of relevant facts." (See Halsbury''s Laws of England, Fourth Edition, Volume 13, page 3) Tomlin, J. expressed the usefulness of interragatories in forceful language in Duke of Sutherland v. British Dominions Land Settlement Corporation Ltd. (1926) 1 Ch. 746 at page 753 in the following words:

Interrogatories have very often a more useful function in an action than is always appreciated. I think there has been some variation from time to time in the practice of the Court with regard to the facility with which interrogatories have been allowed or have been disallowed. I doubt myself whether interrogatories are administered as often as it is desirable; and although I should desire to keep interrogatories strictly within the legitimate limits within which they are permissible, the administering of interrogatories seems to me to be, speaking generally a step which is more often desirable than undesirable and to be encouraged rather than to be discouraged, because they not infrequently bring an action to an end at an earlier stage than otherwise would be the case, to the advantage of all parties concerned.

It is not necessary for the purpose of this case to trace the history of that equitable doctrine. The fundamental principles of discovery, have been stated in Sir J. Wigram''s treatise on Discovery. The second proposition stated at page 15 of the second edition of that book is to the following effect:

It is the right, as a general rule, of a plaintiff in equity to exact from the defendant a discovery upon oath as to all matters of facts which, being Well pleaded in the bill, are material to the plaintiffs case about to come on for trial, and which the defendant does not by his form of pleading admit

See Kennedy v. Dodson (1895) 1 Ch. 334 at p. 340. The contents of the expression "matters of fact which being well-pleaded in the bill are (material to the plaintiff''s case" has been elucidated by Lindley, L.J. in Kennedy v. Dodson (1895) 1 Ch. 334 at p. 340 in the following words:

It ought to contain a statement of those facts, and those facts only, which, if proved, will entitle the plaintiff to relief. It ought not to contain the evidence of those facts. Of course, it is in some cases difficult to draw the line between those facts which are properly contained in the bill and those which are not; but in case of doubt it has always been the practice of the court to find out whether the facts as to which information is required are so material as to render discovery reasonable.

(emphasis supplied)

Sir. J. Wigram at page 165 of the Book has dealt with the guidelines for the exercise of discretion by the court. The proposition is stated in the following words:

In determining whether particular discovery is material or not, the Court will exercise a discretion in refusing to enforce it, where it is remote in its bearings upon the real point in issue, and would be an oppressive inquisition.

(emphasis supplied)

Almost, a hundred years back Cotton, L.J. dealth with ''discovery'' after adverting to Order XXXI, Rule 2 of the Rules of Court, 1875 in the following words:

...but the right to discovery remains the same, that is to say, a party has a right to interrogate with a view to obtaining an admission from his opponent of everything which is material and relevant to the issue raised on the pleadings. It was said in argument that it is not discovery where the plaintiff himself already knows the fact, but that is a mere play on the word ''discovery''. Discovery is not limited to giving the plaintiff a knowledge of that which he does not already know, but includes the getting an admission of anything which he has to prove on any issue which is raised between him and the defendant. To say that the pleadings have raised the issues, and that therefore the interrogatories should not be allowed is an entire fallacy.

See (1881-82) 20 Ch. D. 519 at page 528. The learned Judge had, however, sketched the reasonable limits of the resort to that legal device. He observed:

I may add that nothing I have said must be taken to encourage in any way the going back to the old practice of interrogating as a matter of course to every single allegation in the statement of claim without regard to the question whether it is reasonable or not that discovery should be asked for as to those facts. That is checked by Order XXXI, rule 2 , and probably will hereafter be checked in a more efficacious way.

(emphasis supplied)

As regards these provisions, too, apposite are the words of Voltaire: "Use, do not abuse."

The legal provisions in this regard in our country are now governed by order 11 of the Code of Civil Procedure. This revision petition concerns an application made for discovery under the provisions of Order 11 Rule 12 , C.P.C. It is desirable to extract that provision for facilitating easy reference:

Application for discovery of documents: Any party may, without filing any affidavit, apply to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion, be thought fit: provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.

The Supreme Court of India had considered the import of these provisions in Shri M.L. Sethi Vs. Shri R.P. Kapur, . Mathew, J. speaking for the court observed as follows:

Generally speaking, a party is entitled to inspection of all documents which do not themselves constitute exclusively the other party''s evidence of his case or title. If a party wants inspection of documents in the possession of the opposite party, he cannot inspect them unless the other party produces them. The party wanting inspection must, therefore, call upon the opposite party to produce the document. And how can a party do this unless he knows what documents are in the possession or power of the opposite party? In other words, unless the party seeking discovery knows what are the documents in the possession or custody of the opposite party which would throw light upon the question in controversy, how is it possible for him to ask for discovery of specific documents?

After referring to order 11 Rule 12 , the learned Judge proceeded to state:

When the court makes an order for discovery under the rule, the opposite party is bound to make an affidavit of documents and if he fails to do so, he will be subject to the penalties specified in Rule 21 of Order 11. An affidavit of documents shall set forth all the documents which are, or have been in his possession or power relating to the matter in question in the proceedings. And as to the documents which are not, but have been in his possession or power, he must state what has become of them and in whose possession they are, in order that the opposite party may be enabled to get production from the persons who have possession of them (see Form No. 5 in Appendix C of the Civil Procedure Code). After he has disclosed the documents by the affidavit, he may be required to produce for inspection such of the documents as he is in possession of and as are relevant.

These observations of the Supreme Court, are, however to be applied in the light of other well settled principles relating to the circumstances under which and the purposes for which they could be legitimately invoked.

The question which arises in this revision petition is whether the dismissal of the application I.A. No. 4584 of 1980 made by the defendants in the suit for discovery of documents was so vitiated in law as to be interfered with in revision u/s 115 , C.P.C. The suit filed by the Nedungadi Bank Ltd., was for recovery of the balance amount due to the Bank from the defendants, customers of the Bank. The plaintiff claimed that the transactions between the Bank and the defendants commenced in and continued from the year 1975. The defence raised various contentions. That the plaintiff had not credited certain amounts paid by the defendants was one such contention. An excessive levy of interest by the Bank was yet another. Other contentions are not relevant for the purpose of this revision petition.

The court below has referred to the prayer in the petition for discovery as "to direct the plaintiff to make discovery on oath of all documents which are or have been in the possession or power relating to all matters in question in the suit." Thereafter it has dealt with the various contentions in the written statement and the admissibility of the prayer for discovery. The relevant extract from the short order of the court below is to the following effect:

One of the contentions raised in the written statement is regarding interest. It is submitted by the plaintiff''s counsel that the agreement regarding interest can be seen in the document already produced by him. This is not denied by the defendants'' counsel.

The other contention is that the entire amount paid by the defendants is not credited by the plaintiff. Nothing is stated in the written statement regarding the amount or date of payment that were not credited by the plaintiff. Another contention raised by the defendant is that the accounts kept by the plaintiff are wrong.

It is submitted by the respondent''s counsel that the plaintiff has already produced all the relevant ledgers. That is not disputed by the other side.

So, all the documents relevant in this suit are produced.

(emphasis supplied)

It is obvious from a reference to Order 11, Rule 12 that the court has got the power to refuse the application, if it is satisfied that discovery is not necessary. A discovery shall not be ordered when and so far as the court is of the ''opinion that it is not necessary either for disposing fairly of the suit or for saving costs. If, therefore, as the court below has observed, in respect of the contentions relating to interest, the documents already produced evidence the agreement and if the defendants'' counsel has not chosen to deny it, the rejection of the prayer for discovery in that background is perfectly justified.

As regards the contention about the omission to credit some of the payments and about the accounts kept by the Bank being wrong, all relevant ledgers had been produced by the plaintiff. That fact also was not disputed by the defendants. With a view to avoid any possible prejudice to the defendants in this matter, I directed counsel to specify whether any specific ledger or document is necessary for establishing any of the defence pleas. A statement was filed by counsel, detailing the documents which, according to the defendants "were absolutely necessary" for the disposal of the case. They read:

Certified copy of the cash-credit account in the name of the 1st defendant firm from 1-12-1938 to 30-4-1975.

Certified extracts from the daily account in the name of 1st defendant from 30-4-1975 to 15-2-1978.

Register kept by the plaintiff-bank regarding go down inspection report of the 1st defendant firm from 30-4-1975 to 15-2-1978.

The Register showing the actual incidental charges debited in the account of the 1st defendant from 30-4-1975 to 15-2-1978.

The Register showing the actual calculation of the interest shown in account in the name of the 1st defendant firm from 30-4-1975 to 15-2-1978.

Counsel for the respondent informed me that the registers and ledgers already produced, cover items Nos. 2, 4 and 5. I am satisfied that, having regard to the contentions raised:, they are sufficient for the purpose of this case, particularly in the light of the admissions of the defendants an recorded in the order of the court below. A certified copy of the cash-credit account from 1-12-1938 to 30-4-1975, apart from being extremely remote and unnecessary having regard to commencement of the transactions as referred to in the plaint, appears to be put forward without any bona fides whatever. It really constitutes an oppressive inquisition by the defendants. Equally irrelevant and unnecessary is the register, relating to the go down inspection reports. Counsel for the Revision petitioner could not satisfy me about their bearing on the issue or relevance in the suit. The plaintiff appears to have produced before the court below all documents in its possession which are relevant and necessary for the purpose of the suit. The application for discovery, in the above circumstance, is devoid of merit, and without ground having regard to the circumstances indicated in the order of the court below and the admission of the counsel of the defendants in that behalf. In the above circumstances, the court below was perfectly correct in thinking that the discovery of the documents was not necessary for a fair disposal of the suit. The satisfaction of the court that such discovery is not necessary, rightly entails a dismissal of the application. The decisions noted above and the principles under-; lining the provision, do empower a court to determine whether a particular discovery is material or not. It is equally clear that when the discovery is remote in its bearing upon the real point in issue and would be an oppressive inquisition the court will be justified in declining a prayer in that behalf. This is in essence what had been done by the court below. There is no error whatever in the order of the court below, much less any error of jurisdiction. It therefore follows that the order of the court below is not amenable to correction in a revision petition filed u/s 115 , C.P.C.

In the light of the aforesaid discussion the revision petition fails and is dismissed with costs.