The Law and Practice of Notice to Produce Documents in Indian Civil Litigation

The Law and Practice of Notice to Produce Documents in Indian Civil Litigation

Introduction

The edifice of a fair and efficacious judicial process in India, particularly in civil litigation, rests significantly on the principles of transparency and adequate disclosure between contesting parties. The mechanism of 'notice to produce documents' is a cornerstone of this procedural framework, enabling parties to access documentary evidence in the possession or power of the opposing side. This procedural tool is pivotal for the discovery of truth, ensuring that parties are not taken by surprise at trial, and facilitating a more focused and efficient adjudication of disputes. The legal regime governing notice to produce documents is primarily enshrined in the Code of Civil Procedure, 1908 (CPC) and the Indian Evidence Act, 1872 (Evidence Act). This article undertakes a comprehensive analysis of the law and practice surrounding notice to produce documents in Indian civil litigation, drawing upon statutory provisions and judicial pronouncements.

Understanding Notice to Produce: Nature and Purpose

A notice to produce documents is a formal request made by one party to another in a legal proceeding, requiring the latter to produce specified documents for inspection or for use as evidence in court. The nature and purpose of such notices can vary depending on the stage of litigation and the specific legal provision under which they are issued.

The Andhra Pradesh High Court in Rajesh Bhatia And Others v. G. Parimala And Another (2005 SCC ONLINE AP 970), quoting Halsbury's Laws of England, articulated the function of discovery of documents (which includes notice to produce) as providing "the parties with the relevant documentary material before the trial so as to assist them in appraising the strength or weakness of their respective cases, and thus to provide the basis for the fair disposal of the proceedings before or at the trial." This sentiment was echoed in M. Sivasamy v. Vestergaard Frandsen A/S & Ors. (Delhi High Court, 2009), emphasizing that discovery enables parties to use relevant material to support or rebut cases, eliminate surprise, and reduce litigation costs.

Broadly, notices to produce serve distinct but often interrelated purposes:

  • To enable a party to inspect documents in the possession of the adversary that are relevant to the matters in question (primarily under Order XI CPC).
  • To compel the production of original documents at the hearing, failing which the party issuing the notice may be permitted to adduce secondary evidence of their contents (under Order XII Rule 8 CPC and Section 66 Evidence Act).
  • To ensure that all relevant documentary evidence is brought before the court for a just determination of the dispute.

The Allahabad High Court in Union Of India v. Firm Vishudh Ghee Vyopar Mandal (1953 SCC ONLINE ALL 81) distinguished between a notice to produce documents for inspection before the hearing (under Order XI CPC) and a notice to produce documents at the time of hearing so that secondary evidence may be given if they are not produced (under Order XII Rule 8 CPC).

Statutory Framework in India

The procedural and evidentiary aspects of notice to produce documents are governed by a combination of provisions within the CPC and the Evidence Act.

The Code of Civil Procedure, 1908

The CPC lays down the procedural mechanics for seeking production and inspection of documents.

  • Order V, Rule 7; Order VII, Rule 14; Order VIII, Rule 1A: These provisions impose initial obligations on parties to produce documents relied upon at the outset of the suit. As noted in Aktiebolaget Volvo v. R. Venkatachalam (Delhi High Court, 2009), Order VII Rule 14 requires a plaintiff to produce documents in his possession when the plaint is presented, and Order VIII Rule 1A places a corresponding obligation on the defendant.
  • Order XI (Discovery and Inspection):
    • Rule 14 (Order for production of documents): Empowers the court to, at any time during the pendency of the suit, order any party to produce documents in their possession or power relating to any matter in question in the suit (Aktiebolaget Volvo v. R. Venkatachalam, Delhi High Court, 2009; Rajesh Bhatia And Others v. G. Parimala And Another, Andhra Pradesh High Court, 2005). The Supreme Court in Shri M.L Sethi v. Shri R.P Kapur (1972 SCC 2 427) upheld the court's power to order discovery, emphasizing its necessity.
    • Rule 15 (Inspection of documents referred to in pleadings or affidavits): Allows a party to give notice to any other party, in whose pleadings or affidavits reference is made to any document, to produce such document for inspection (Aktiebolaget Volvo v. R. Venkatachalam, Delhi High Court, 2009).
    • Rule 16 (Notice to produce for inspection): Specifies the form of notice for inspection of documents referred to in pleadings or affidavits (Rajesh Bhatia And Others v. G. Parimala And Another, Andhra Pradesh High Court, 2005).
    • Rule 21 (Consequences of non-compliance with order for discovery, etc.): Provides for penal consequences, such as dismissal of suit or striking out of defence, if a party fails to comply with an order to answer interrogatories, or for discovery or inspection of documents. However, the Supreme Court in Babbar Sewing Machine Company v. Trilok Nath Mahajan (1978 SCC 4 188) cautioned that this is a highly penal provision and should be invoked only in extreme cases of wilful non-compliance or contumacious behaviour, not for minor or inadvertent delays.
  • Order XII, Rule 8 (Notice to produce documents): Allows a party to call upon another party to produce documents at the hearing. If such notice is given and the documents are not produced, the party calling for them may give secondary evidence (Union Of India v. Firm Vishudh Ghee Vyopar Mandal, Allahabad High Court, 1953; M/S.ROHINI TRADERS v. M/S.J.K.LAKSHMI CEMENT LTD., Supreme Court Of India, 2014).
  • Order XIII, Rule 1 (Production of documents at first hearing): Mandates parties to produce all documentary evidence in their possession or power on which they intend to rely at the first hearing of the suit (Ashoka Marketing Ltd. v. Rothas Kumar, Calcutta High Court, 1966).
  • Order XVI, Rule 6 (Summons to produce document from a stranger): Provides the mechanism for seeking production of documents from persons who are not parties to the suit (Rajesh Bhatia And Others v. G. Parimala And Another, Andhra Pradesh High Court, 2005).

The Indian Evidence Act, 1872

The Evidence Act complements the CPC by laying down rules regarding the admissibility of documents, including secondary evidence when originals are not produced after notice.

  • Section 65 (Cases in which secondary evidence relating to documents may be given): Clause (a) permits secondary evidence of the contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it. The Supreme Court in J. Yashoda v. K. Shobha Rani (2007 SCC 5 730) affirmed that photocopies could not be received as secondary evidence if the requirements of Section 65(a), including the notice under Section 66, were not fulfilled.
  • Section 66 (Rules as to notice to produce): This is a crucial provision, stipulating that secondary evidence of documents referred to in Section 65(a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is (or to his attorney or pleader) such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable. The Supreme Court in Jagmail Singh And Another v. Karamjit Singh And Others (Supreme Court Of India, 2020) reiterated these rules. The proviso to Section 66 lists exceptions where such notice is not required (e.g., when the document to be proved is itself a notice, or when the adverse party must know from the nature of the case that he will be required to produce it).
  • Section 162 (Production of documents; Court's power to inspect): A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection to its production or admissibility. The validity of any such objection shall be decided by the Court. The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility. This was discussed in State Of U.P v. Raj Narain And Others (1975 SCC 4 428) in the context of claims of privilege.
  • Section 163 (Giving, as evidence, of document called for and produced on notice): When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so (Union Of India v. Firm Vishudh Ghee Vyopar Mandal, Allahabad High Court, 1953; Rajesh Bhatia And Others v. G. Parimala And Another, Andhra Pradesh High Court, 2005).
  • Section 164 (Using, as evidence, of document production of which was refused on notice): When a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court.
  • Section 114, Illustration (g) (Adverse inference from withholding evidence): The Court may presume that evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it. The Supreme Court in Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Others (1968 SCC 0 1413) held that if a party is in possession of relevant documents and fails to produce them, an adverse inference can be drawn against them. This principle is also applicable in arbitration, as noted in Silor Associates Sa v. Bharat Heavy Electrical Limited (Delhi High Court, 2014).

Judicial Interpretation and Key Principles

Courts in India have, through numerous pronouncements, clarified and elaborated upon the principles governing notice to produce documents.

Necessity and Form of Notice

For leading secondary evidence under Section 65(a) of the Evidence Act, a notice under Section 66 is generally a prerequisite, unless covered by the exceptions in the proviso to Section 66 (J. Yashoda v. K. Shobha Rani, 2007 SCC 5 730; DR. MRS. SUDHA W/O NARESHCHANDRA SUTARIA v. BANWARILAL PUROHIT, Bombay High Court, 2010). The notice must be such as the Court considers reasonable under the circumstances if no specific form is prescribed by law (Section 66, Evidence Act; Rajesh Bhatia And Others v. G. Parimala And Another, Andhra Pradesh High Court, 2005).

Pre-requisites for Issuing Notice

A fundamental pre-requisite for a notice to produce under Section 66 of the Evidence Act is that the document must be in the possession or power of the party to whom the notice is addressed (Rajesh Bhatia And Others v. G. Parimala And Another, Andhra Pradesh High Court, 2005). Furthermore, the documents sought must be relevant to the matters in question in the suit. As observed in Shri M.L Sethi v. Shri R.P Kapur (1972 SCC 2 427), documents sought for discovery need to be relevant, though not necessarily admissible in evidence at that stage.

Consequences of Non-Production

Failure to produce documents after a valid notice or court order can lead to several consequences:

  • Admissibility of Secondary Evidence: The primary consequence of non-production after notice under Section 66 of the Evidence Act is that the party calling for the document becomes entitled to adduce secondary evidence of its contents under Section 65(a) (J. Yashoda v. K. Shobha Rani, 2007 SCC 5 730).
  • Adverse Inference: The court may draw an adverse inference against the party failing to produce relevant documents in its possession (Section 114, Illustration (g), Evidence Act; Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Others, 1968 SCC 0 1413; M/S.ROHINI TRADERS v. M/S.J.K.LAKSHMI CEMENT LTD., Supreme Court Of India, 2014).
  • Penal Consequences under CPC: Non-compliance with a court order for production can lead to severe penalties under Order XI Rule 21 CPC, such as striking out pleadings or dismissal of the suit. However, these are to be applied judiciously and only in cases of wilful default (Babbar Sewing Machine Company v. Trilok Nath Mahajan, 1978 SCC 4 188).
  • Inability to Use Document Later: A party refusing to produce a document after notice cannot subsequently use it as evidence without the consent of the other party or a court order (Section 164, Evidence Act).

Documents Produced on Notice

If a party calls for a document through a notice to produce, and the document is produced and inspected by the party calling for it, the calling party is then obligated to tender that document in evidence if the party producing it so requires (Section 163, Evidence Act; Union Of India v. Firm Vishudh Ghee Vyopar Mandal, Allahabad High Court, 1953).

Objections to Production and Privilege

A party may object to the production of documents on various grounds, including irrelevance, or that the documents are privileged. The claim of privilege concerning unpublished official records relating to affairs of State is governed by Section 123 of the Evidence Act. The Supreme Court in State Of U.P v. Raj Narain And Others (1975 SCC 4 428) emphasized that such a claim must be made through an affidavit by the head of the department concerned, and the court retains power under Section 162 of the Evidence Act to determine the validity of the privilege claim, including inspecting the document if necessary (unless it refers to matters of State).

It is also crucial that objections to the admissibility or mode of proof of documents are raised at the appropriate stage. The Supreme Court in Dayamathi Bai (Smt) v. K.M Shaffi (2004 SCC 7 107) held that objections as to the mode of proof of a document (e.g., admitting a certified copy without proper foundation) must be taken at the trial before the document is marked as an exhibit; failure to do so would be considered a waiver of such objection.

Court's Role and Discretion

The court plays an active role in the process of production of documents. It has the power to order production under Order XI Rule 14 CPC (Aktiebolaget Volvo v. R. Venkatachalam, Delhi High Court, 2009) and to decide on objections to production (Section 162, Evidence Act). The court also has discretion under the proviso to Section 66 of the Evidence Act to dispense with the requirement of notice to produce in certain circumstances. The judiciary strives to balance procedural compliance with the overarching goal of substantive justice, ensuring that technicalities do not thwart the fair adjudication of rights (drawing an analogy from the principle in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, 1964 AIR SC 1545, regarding procedural defects in election petitions).

Practical Aspects and Procedural Considerations

Effective utilization of the notice to produce mechanism requires careful attention to practical and procedural details:

  • Drafting the Notice: The notice should be clear, specific, and unambiguous in describing the documents sought. Vague or overly broad notices may be challenged.
  • Service of Notice: Proper service of the notice on the opposing party or their pleader is essential to make it effective.
  • Timing of Notice and Production: Notices for inspection under Order XI CPC are typically pre-trial. Notices under Order XII Rule 8 CPC are for production at the hearing. Documents relied upon by parties should ideally be produced at the first hearing (Order XIII Rule 1 CPC, Ashoka Marketing Ltd. v. Rothas Kumar, Calcutta High Court, 1966). Belated attempts to produce documents can be problematic, as highlighted in Chitra Kumari (Smt) v. Union Of India And Others (2001 SCC 3 208), where the Supreme Court deprecated the practice of annexing irrelevant documents or trying to rely on them for the first time on appeal.
  • Notice to Party v. Summons to Stranger: A notice to produce is directed to a party to the suit. If documents are in the possession of a stranger (non-party), the procedure is to issue summons under Order XVI Rule 6 CPC (Rajesh Bhatia And Others v. G. Parimala And Another, Andhra Pradesh High Court, 2005).

Conclusion

The provisions relating to notice to produce documents are integral to the adversarial system of civil justice in India. They promote fairness by enabling parties to access relevant information, prevent trial by ambush, and assist the court in arriving at a just decision based on a comprehensive understanding of the facts as evidenced by documents. While the CPC and the Evidence Act provide a robust framework, its effective implementation depends on the diligence of legal practitioners in utilizing these tools appropriately and the judiciary's sagacity in interpreting and applying these provisions to uphold the principles of natural justice and procedural fairness. A thorough understanding and meticulous application of the law governing notice to produce documents are indispensable for the efficient and equitable administration of civil justice in India, ensuring that procedural rules serve as handmaidens to justice, not its impediment.