1. This rule arises with reference to two applications for discovery under Order 11, Rule 12, Civil P.C., which were filed by the plaintiff in connexion with Suit No. 402 of 1937. Both the applications were rejected by the learned Munsif. As regards the first application, the order of rejection is dated 11th September 1939, and is based on the ground that the list of documents upon which the parties relied had already been filed and that the application was of a vague and general character and should not be allowed at a late stage of the suit. The second order, dated 20th September 1939, is merely to the effect that it was too late to reconsider the matter. The application for discovery was therefore rejected. It appears that the plaintiff had filed two suits against the defendant namely Suits Nos. 402 of 1937 and 83 of 1938. These suits related to two separate plots of land, but the main contentions of the parties appear to have been the same in both the suits. The plaintiff's case was to the effect that the land in suit had belonged to a man named Abdul Hamid and that the plaintiff had purchased the suit land in execution of certain Civil Court decrees against Abdul Hamid's heirs. The defendant's case, on the other hand, was to the effect that the disputed property had originally belonged to Rahim Bux, the father of Abdul Hamid. His contention was that Rahim Bux's estate had been partitioned and that the defendant had purchased the disputed property from the Commissioner in the partition proceedings in connexion with Suit No. 1221 of 1916, which was instituted on the Original Side of this Court. Title Suit No. 402 of 1937 was filed in the Court of the First Munsif of Alipore on 14th December 1937, while Suit No. 83 of 1938 was filed on 27th April 1938.
2. We are not directly concerned in this case with the previous history of Suit No. 83 of 1938 except to this extent, that we find that, on 8th August 1939, an order was recorded by the learned District Judge of the 24-Parganas to the effect that this suit should be tried analogously with Title Suit No. 402 of 1937. In the latter suit the issues were framed as far back as 15th March 1938. On 23rd March 1939, the defendant appears to have filed the documents upon which he intended to rely under the provisions of Order 13, Rule 1, Civil P.C., but the record shows that on the following day, these documents were taken away by the defendant. After the learned District Judge had ordered Suit No. 402 of 1937 to be tried analogously with Suit No. 83 of 1938 we find that, on 18th August 1939, the defendant filed the list of the documents on which he intended to rely in Suit No. 83 of 1938. On 28th August an additional written statement appears to have been filed by the defendant in Title Suit No. 402 of 1937 and, on 31st August, two additional issues were framed by the learned Munsif. These issues were in the following terms:
Issue 9 : Did the suit land pass to the defendant by sale from the Commissioner of partition in Suit No. 1221 of 1916 of the Original Side, High Court?
Issue 10 : Can the defendant claim priority of such sale, if any?
3. On the same day the learned Munsif recorded an order fixing 20th September 1939, for taking such further steps as might be necessary and in particular he directed the parties 'to take all necessary steps including interrogatories, discovery, etc. preparatory to fixing the date for peremptory hearing.' Thereafter two applications for discovery, dated 11th September and 20th September, were filed on behalf of the plaintiff and, as already stated, these applications were rejected. The learned advocate for the petitioner in this case contends that in rejecting these applications the learned Munsif failed to exercise a jurisdiction vested in him by law and acted illegally and with material irregularity. He contends that the provisions in the Civil Procedure Code relating to discovery and inspection and which are contained in Order 11 of the Code have been provided by the Legislature with the express object of enabling the parties to a suit to have knowledge of the documents relating to the matter in issue which may be in the power or possession of the other side before the suit comes on for trial in order that, by a proper observance of these provisions, the parties may not be taken by surprise, that costs and time may be saved and the matters in issue between the parties may be clarified. In my view, there is much force in this contention.
4. This Court has laid particular emphasis in Chap. 8 of their Civil Rules and Orders on the proper observance of the rules relating to discovery, inspection and admission. In para. 153 of these rules it was pointed out that the provisions of Orders 11 and 12, Civil P.C., relating to 'Discovery and Inspection' and 'Admission' (based on the English Rules of Practice) had been introduced into the Code of 1908 to save both time and expense and for the purpose of shortening litigation by the proper preparation of cases before trial. Nevertheless, although these valuable provisions had been in existence for many years, little use had been made of them with the results that suits were protracted beyond all reasonable length and costs were needlessly sacrificed. It was further stated in the sama paragraph that....
5. Presiding Judges should make themselves thoroughly conversant with the rules relating to Discovery, Inspection, etc. and the High Court desire it to be understood that henceforward definite and systematic attempts should be made to apply them in all suitable cases. The Co-operation of the Bar is essential but, if the Bar or the litigants will not appreciate the great advantage of, these provisions, presiding Judges should themselves take the initiative and regard it as a part of their ordinary duty to make use of Section 30, Civil P.C., which gives express and clear power to the Court to make orders in these matters of its own motion.
6. In the case with which we are now dealing it must have been obvious not only to the parties concerned but also to the presiding Judge that the decision of the matter would depend to a very large extent upon documentary evidence and that, therefore, this was essentially a case in which recourse should have been taken to the provisions of Order 11, Civil P.C. It is, therefore, difficult to understand why in the absence of any application to this effect by either of the parties, the learned Munsif did not himself record the requisite orders for this purpose under Section 30, Civil P.C., as enjoined by para. 153 of the Court's Civil Rules and Orders, which has been quoted above. A convenient stage at which such an order might have been made was either before or immediately after the framing of the issues in Suit No. 402 of 1937, namely on 15th March 1938. The learned Munsif appears to have been conscious at a later stage of the proceedings of the necessity of applying the ordinary rules of discovery, as is indicated by his order dated 31st August 1939, but, although he recorded that particular order, he does not appear to have been prepared to allow the parties a reasonable opportunity of giving effect to it, as is shown by his subsequent orders, dated 11th September 1939 and 20th September 1939, by which he rejected the petitioner's applications for discovery.
7. The main contention of the learned Advocate for the opposite party in this case is that, in effect, the petitioner in both of his applications for discovery was applying for the production of documents which related solely to the defendant's title and, this being the case, it is argued that the learned Munsif was justified in refusing to make an order for discovery which might have had the effect of compelling the defendant to produce these documents. The learned Advocate further relies upon the fact that his client had already filed the list of the documents upon which he intended to rely in Title Suit No. 402 of 1937 on 23rd March 1939, and he contends that, inasmuch as these documents had been filed under the provisions of Order 13, Rule 1, Civil P.C., no further order for discovery under the provisions of Order 11 was necessary. The latter argument loses sight of the purport of Order 13, Rule 1 of the Code and of the provisions for discovery which are contained in Order 11. It is true that, under Order 13, Rule 1, Civil P.C., the parties are obliged at the first hearing of the suit to produce
all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court and all documents which the Court has ordered to be produced.
8. Order 11, Rule 12, on the other hand allows any party to a suit to
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.
9. It is to be observed that Rule 12, Order 11 is hoonsiderably wider than that of Order 13, Rule 1 of the Code. It is quite conceivable that a party may only wish to rely on a limited number of documents relating to the matter in dispute and which happen to be in his possession or power and, under the provisions of Order 13, Rule 1 of the Code, he will only be required to produce at the first hearing those documents which he himself may consider requisite for his own purposes, unless the Court has expressly directed the production of any particular document. Under Order 11, Rule 12 of the Code, on the other hand, the parties may apply for the discovery of all documents of any description which have any bearing on the matter in dispute and, if discovery is ordered, the affidavit of documents must contain a complete list of all documents relating to the matter in question, whether a party against whom discovery has been ordered intends to rely on them or not. The intention of the Legislature in enacting these provisions seems to have been to afford facilities to a party to the suit in proper eases to establish his own case by having access to his opponent's documents relating to a case unless such documents are legally exempted from production. In other words, as one party to a suit is permitted to prove his case out of the mouth of his opponent by means of questions put in cross-examination, so also may he seek to establish his ease by the process of discovery, interrogatories and admissions, for which provision is made in Orders 11 and 12, Civil P.C. The right to obtain discovery of an adversary's documents is a very wide one and is not limited merely to those documents which may be held to be admissible in evidence when the suit is ultimately tried. The law on this point was very clearly stated by Brett J. in Compagnei Financiere du Pacifique v. Peruvian Guano Co. (1883) 11 Q.B.D. 55 as follows:
I desire to give as large an interpretation as I can to the words of the rule, 'a document relating to any matter in question in the action.' I think it obvious from the use of these terms that the documents to be produced are not confined to those which would be evidence either to prove or to disprove any matter in question in the action. The doctrine seems to me to go further than that and to go as far as the principle which I am about to lay down. It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose contains information which may, not which must, either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary.
10. As regards his contention that the plaintiff was seeking to obtain discovery of documents which related solely to the defendant's title, the learned advocate for the opposite party in support of his argument places considerable reliance upon a decision of the House of Lords in Lyell v. Kennedy (1883) 8 A.C. 217. That case related to an action for the purpose of recovering certain real estate in England. The defendant pleaded the Statute of Limitation and his main defence seems to have been that at the commencement of the action he had been in continuous possession for more than twelve years. Summonses were served upon defendant and he objected to produce certain documents on the ground that they related solely to the defence of his title. The plaintiff took out a summons for an affidavit in answer to his interrogatories and also a summons for the production of certain documents but both the summonses were dismissed. The main ground upon which the Court of Appeal proceeded in dismissing the summonses appears to have been that an application for discovery cannot be made in an action for ejectment. This contention was however overruled by the House of Lords. The Lord Chancellor in the course of his judgment said:
Reference was also made to a case at law in Horton v. Bott (1857) 2 H & N 249 in which a discovery of matters relevant only to the defendant's title was very properly refused. It does not however appear to me to follow from those principles, or from the case in Horton v. Bott (1857) 2 H & N 249 that a plaintiff in an action of ejectment, suing upon a legal title, ought to be denied that discovery of matters within the defendant's knowledge and. tending to support not the defendant's but the plaintiff's case, to which a plaintiff at law would be entitled in any other kind of action.
11. His Lordship went on to say:
I am therefore of opinion that the general ground on which the judgment appealed from appears to have proceeded, cannot be maintained; and that, unless the whole matters inquired into by the Interrogatories, which the defendant haS not answered, are irrelevant to 'the plaintiff's case about to come on for trial,' in the words of Sir James Wigram's second proposition (Wigram, Discovery, page 15), the defendant must make some sufficient answer to those matters.
12. The Lord Chancellor then referred to the defence which had been put forward by the defendant in the case and in this connexion observed that:
If the plaintiff succeeds in establishing the fact of heirship, it will also be necessary for him, at the trial, to repel the defence of the Statute of Limitation, the action having been brought more than twelve years after Ann Duncan's death. Most of the special averments in the statement of claim, and the interrogatories, founded on them, have for their object to repel that defence Unless their insufficiency is so manifest as to make it certain that they raise no question proper for determination at the trial (whatever the facts may then turn out to be), the plaintiff ought to be at liberty to prove this part of his case by all proper means, discovery included.
13. His Lordship therefore held that the defendant must answer the relevant interrogatories. The concurring judgments were to the same effect and in this connexion, Lord Mtz Gerald observed:
I may be permitted to observe that your Lordships' decision does not in the least trench on the rule or maxim so much relied on in the Court below, that a plaintiff in ejectment must succeed. if at all, on the strength of his own title, and not on the weakness of the title of the defendant in possession, or, in other words, that the plaintiff must prove his title before the defendant can be called on to enter on his defence... The plaintiff does not contest this maxim or seek to escape from it. He admits that he must prove his title, and can only succeed on a proved title. He claims to be permitted to prove that title. He seeks to do so now by the examination of the defendant as to his (the plaintiff's) title, just as he would be entitled to call the defendant as a witness on. the trial and examine him as to the pedigree on which the plaintiff relies, or any other step in his title on which the defendant may be a competent witness.
14. It will be seen from the above quotations that the decision in Lyell v. Kennedy (1883) 8 A.C. 217 does not really support the argument adduced in this connexion by the learned advocate for the opposite party. It is true that in a suitable case a defendant may object to the production of a document on the ground that it relates solely to his title, but if, on the other hand, that document may have some bearing in support of the plaintiff's title, such objection cannot be validly raised. In any case, it must be remembered that there is an essential difference between the discovery and production of documents. If an order for discovery is made under Order 11, Rule 12, Civil P.C., as already pointed out, all the documents relating to the case should be embodied in the affidavit of documents by the person against whom the order for discovery is made. If, however that person objects to the production of any of the documents mentioned in his affidavit, he will be at liberty to raise his objection at the proper time and such objection would in the ordinary course of business be decided on its merits. It must be remembered that the rules contained in Order 11, Civil P.C., are based on the English rules of practice and on this particular point, the law has been summarized in Halsbury's Laws of England in the following passage at page 364,. Edition 2:
The right to have the existence of a document disclosed in the affidavit of documents does not necessarily involve any right to have it produced for inspection. On the other hand, the fact that a document is protected from production for inspection does not afford a sufficient reason for not disclosing its existence.
15. It is also pointed out in Section 461 that 'Some relevant documents, although their existence must be disclosed in the affidavit of documents, are nevertheless, protected from production' and among the grounds mentioned upon which such an objection may be raised is the defence that the dooument sought to be inspected relates solely to the case of a party giving the discovery or solely to the defendant's title. It is also pointed out in para 482 that
another ground upon which production can be refused is that the documents sought to be inspected relate solely to the case of the party giving the discovery. In any action where the deponent can swear that a document relates only to his own case, does not relate to nor tend to prove or support his opponent's case, and does not, to the best of his knowledge, information and belief, contain anything impeaching his own case, and that he objects on these grounds to produce the document thon subject to the exceptions already mentioned, he will not be compelled to produce it, whether the document is or is not admissible in evidence.
16. The general rule in connexion with this matter is very clearly stated by Knight Bruce, V.C, in Combe v. Corporation of London (1842-54) 1 Y & C.C.C. 650 and 651:
To protect a defendant from the discovery or production of a document, relating to the subject of dispute, it is not sufficient that it should be evidence of his title, or contain evidence that he intends and is entitled to use in support of his case. It may also be of a similar character with regard to the plaintiff's case, either in a directly affirmative manner, or by exhibiting matter at. variance with the defence, or tending to impeach it. I do not at present refer to the instances in which a document forms the common title, or is a subject of the mutual and common right of the plaintiff and defendant. If it be with distinctness and positiveness stated in an answer that a document forms or supports the defendant's title, and is intended to be, or may be, used by him in evidence accordingly, and does not contain anything impeaching his defence, or forming or supporting the plaintiff's title or the plaintiff's case, that document is, I conceive, protected from production, unless the Court sees, upon the answer itself, that the defendant erroneously represents or misconceives its nature. But where it in consistent with the answer that the document :may form the plaintiff's title, or part of it may contain matter supporting the plaintiff's title, or the plaintiff's case, or may contain matter impeaching the defence, then I apprehend, the document is not protected; nor, I apprehend is it protected if the character ascribed to it by the defendant is not averred by him with a reasonable and sufficient degree of positiveness and distinctness.
17. It, therefore, follows that the contention of the learned Advocate for the opposite party to the effect that an order for discovery cannot be made against him on the ground that it may compel him to produce documents relating solely to his title cannot be accepted. Having regard to the circumstances of this case generally, it is clear ,that an order for discovery ought to have been made and, if the defendant considers that he is entitled to protection in respect of the production of any particular documents which may be entered in the affidavit under Order 11, Rule 13 of the Code, he will be at liberty to raise such objection at the proper stage of the proceedings if and when he is ordered to produce such documents under Order 11, Rule 14 of the Code or to give inspection of them under Order 11, Rule 18.
18. It is next urged that the learned Munsif in rejecting the two applications for discovery, dated 11th September 1939 and 20th September 1939 merely acted in the reasonable exercise of the discretion vested in him and that, in these circumstances, this Court should not interfere in the exercise of its re visional jurisdiction under Section 115, Civil P.C. I am not prepared to accept this contention. As already pointed out, the learned Munsif, by his order dated 31st August 1939, indicated that he considered that an order for discovery might suitably be made in this particular case. This is not therefore a case in which the Court could refuse to make a discovery order on the ground that the learned Munsif was not satisfied that such discovery was necessary within the meaning of Order 11, Rule 12, Civil P.C. As regards the application dated 9th September 1939, the plaintiff pointed out that much time and labour would be saved by an order for discovery. The request contained in the petition was merely a request for an order under Order 11, Rule 12 of the Code-and in my judgment, the learned Munsif would have exercised a proper discretion in this matter if, instead of rejecting the plaintiff's application, he had recorded an order in the form provided in item 4 of Appx. C (Schedule I) to the Civil P.C.
19. In the second application the plaintiff only refers in express terms to the documents relating to the special contention urged by the defendant to the effect that it had been found in the course of the partition suit in the High Court that 397 odd bighas of land included in the suit land appertained to the estate of Rahim Bux Ostagar. It is contended by the learned advocate for the opposite party that the relevant documents were in fact filed in Court on 23rd March 1939. As already pointed out however the record shows that all the documents which were filed in Court on that date were taken away by the defendant on 24th March, and the reason put forward on behalf of the defendant in this respect does not afford any argument for refusing an ordinary application for discovery in this case. In my view, both the orders dated 11th September 1939 and 20th September 1939, were misconceived. I consider that the learned Munsif acted with material irregularity in making these orders and that he failed to exercise a jurisdiction vested in him by law in connexion with the making of orders for discovery in suits.
20. This rule must, accordingly, be made absolute with costs. The hearing fee is assessed at two gold mohurs. Having regard to the nature of the case I consider it essential that both parties should now be called upon to file affidavits of documents under the provisions of Order 11, Rule 13, Civil P.C. and the learned Munsif should call upon them to do so under the provisions of Section 30, Civil P.C., as soon as possible after the arrival of the record in the lower Court. Let the record be sent down as early as possible. Let an early date be fixed for the hearing.