BMM ADV LH GTH PAGINATION Bapoo M. Malcolm Advocate, High Court Block ‘B’, Jaiphal Terrace, 2nd. Floor, 31, K.V.N. Naik Path, Mumbai 400-036, INDIA Phone & FAX: +91-(22)-2386-1776, Mobile: +91-98696-06978 e mail:
A note on Order 11, Rule 21, of the Code of Civil Procedure, 1908. This important provision of the CPC, 1908 relates to the discovery (submission/presentation) of relevant documents and the answering of rogatories (questions) by all the sides to a civil dispute brought before any court of jurisprudence where the rights of the parties are in dispute and need to be adjudicated upon. A few premises need to be stressed before we go further. They deal mainly with the misconception on the part of the litigants. The normal belief is that inconvenient evidence can and must be hidden.
Secondly, non-production of the same will lead to delays and the guilty party is the major beneficiary of protracted proceedings, thereby its reluctance to produce documents and answer rogatories. Again, one must understand the true reason for the establishment of the judicial system. Even though our system is adversarial, the basic function of the court is not to pass judgements, give orders nor issue decrees. It is to FIND THE TRUTH. This may sound incredible, but that is the fact. Without determining the truth, no adjudication is worth the paper it is written on. Then again, the courts look for two things; a) to adjudicate as quickly as possible and b) to bring finality to litigation. Here we find that practice seems divorced from the intent and common perception. This is where the O11/R21 of the CPC, 1908 is of paramount importance. Litigation begins with a party aggrieved, honestly or with ulterior motives. It moves the court with the intention of determining right/s. The Defendant, i.e. the other party, either submits to the Plaintiffâ€™s claims or disputes them, either in part or in toto. One then has to prove oneâ€™s case. The best form of evidence is documentary, followed by secondary evidence, witnessâ€™/esâ€™ depositions and discovery. The requirement is that all possible evidence must be presented to the court and that too at the first instance.
This means that the Plaintiff must submit all relevant evidence in his possession with the plaint. And this includes evidence that may be adverse to his claims. Similarly when the Defendant files his written statement, he too must present, at first instance, all the evidence in his possession, including that which is not in his interest. Unfortunately, this home truth is lost on both the litigants and their advisors. To speed up the process and reach finality of litigation, there is also the provision of each party asking the other/s a set of questions (rogatories), dealing with the matter on hand. A request to the court, which is the final arbiter, to ask the other side to answer questions allows the questioner to determine those points of conflict and those of commonality. The process narrows down the areas of dispute and the framing of issues.
IT ALLOWS THE COURT TO DETERMINE THE TRUTH FASTER.
There is some doubt on the matter of rogatories and production of documents. Texts say that a notice to either the advocate or solicitor is sufficient to elicit response. One must understand that this exercise is not the same that most advocates resort to when they check the veracity of copies against the originals. This effort is different in the sense that the opponent questioner seeks information about concealed documents and misinformation or non-information that would prove the questionerâ€™s case. Much against common belief, the compulsion of demanding production is a legitimate and important right of the litigants. To hide documents, to destroy inconvenient proofs or obfuscate, are illegal activities. The next argument is what the process should be if the opposite side refuses. The simplest way is to convince the court of the need for answering the rogatories and the production of documents. An order of the court needs be obeyed. Refusal to heed the order is to invite the wrath of the court under O11/R21 of the CPC. Order11/Rule 21 is succinctly clear. It deals with both the Plaintiff and the Defendant and their respective truculence. Non-compliance allows the court to draw adverse inferences. The plaintiff is defeated in his suit with dismissal of the same. He is not allowed to appeal the dismissal nor can he file another suit in the same cause of action.
The court, in this case, finds for the Defendant in permanence. On the other hand the intransigent Defendant loses his right to defend his case. The court proceeds as if the Defendant has presented no defence and is considered ex-parte. His defence, if presented, is struck off and the suit determined without any partaking by the Defendant. He is not allowed to examine the witness/es nor argue the matter. It is as if the defendant did not exist. The courts have been advised to come down on the litigants with great care and caution and not to wield O11/R21 without due application of mind and patience. The ingredients are A) Wilful disobedience B) Capacity to produce and knowledge of the same C) Perjury D) Acts with intent to thwart the process of the court and interference/obstruction of justice. In short, one cannot hide evidence, howsoever inconvenient it may be. From the above, one will understand that the search for the truth is the paramount duty of every court. It allows excellent adjudication, shortens the time of litigation and brings finality to the matter.