H.L. Sethi vs R.P. Kapur
decided on 19.07.72 by Supreme Court of India, Judges – K.K. Mathew & P.
Jaganmohan Reddy, Case No : 665(n) of 19721
Citations -
1972 (2) SCC 427 : 1973 (1) SCR 697 : 1972 AIR(SC) 2379 : 1972 Legal Eagle 320
DRT Solutions
Citation – DLS-010-Sethi
vs Kapur-SC-1972
(We have now numbered the Judgments published on this web site as DLS-00.)
Accordingly all the judgments published so far have been numbered. The judgment
on this page is numbered as DLS-010.
Comments by DRT Solutions
An Important Supreme Court Judgment relating to Discovery, Production and
Inspection of the Documents
(a)
The full text of the
judgment is given below with important portion marked in Red.
(b)
This is one of the most
important SC Judgments relating to the documents.
(c)
All the bank litigations
are based on documents. Hence discovery of all the material documents is most
essential pre-requisite of the bank litigations. In this connection the
following extract from this judgment are quite relevant.
(d)
Extract from Para 5:-
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.
(e)
Another extract from Para
5:-
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.
(f)
Extract from Para 5:-
The
documents sought to be discovered need not be admissible in evidence in the
enquiry or proceedings. It is sufficient if the documents would be relevant for
the purpose of throwing light on the matter in controversy. Every document which
will throw any light on the case is a document relating to a matter in dispute
in the proceedings, though it might not be admissible in evidence. In other
words, a document might be inadmissible in evidence yet it may contain
information which may either directly or indirectly enable the party seeking
discovery either to advance his case or damage the adversary's case or which may
lead to a trial of enquiry which may have either of these two consequences
(g)
If the advocate of the
borrower has proper knowledge and adequate experience of trial and is well
versed with material facts relating to the banking, industry and finance and
perfect pleadings of the counter-claim has been made, no bank can win its
recovery case as there are lot of wrong doings committed by the banks. Under
such facts and circumstances, this particular judgment will be immensely useful.
IN THE
SUPREME COURT OF INDIA
Equivalent
Citations: 1972 Legal Eagle 320 : 1972 (2) SCC 427 : 1973 (1) SCR 697 : 1972
AIR(SC) 2379
Judges :
K.K.Mathew : P.Jaganmohan Reddy
H.L.Sethi
Versus
R.P.Kapur
Case No. :
665(n) of 19721
Date of
Decision : 19-Jul-1972
Advocates
Appeared:
Singh
Hardev : Tarkunde V.M.
JUDGMENT/ORDER:
Mathew,
J.:—
This
appeal, by special leave, is from the order of the High Court of Allahabad
allowing an application for revision of orders passed by the Civil Judge,
Saharanpur, directing discovery of documents by the respondent and dismissing an
application by him for permission to sue in forma pauperis.
2. The
respondent filed a suit in forma pauperis on April 20, 1962, against the
appellant and his wife for recovery of damages to the tune of Rs.7,48,000/- for
malicious prosecution. Notice of the petition to sue in forma pauperis was given
to the State Government and the appellant under Order 33, Rule 6 of the Civil
Procedure Code. Both the Government and the appellant filed objections stating
that the respondent is not a pauper. The appellant thereafter filed an
application for discovery of documents from the respondent for proving that the
respondent is not a pauper. The Court passed an order on February 23, 1970,
directing the respondent to discover on affidavit, the documents relating to the
bank accounts of the respondent, namely, pass books, cheque books, counterfoils,
etc., from March 1, 1963, to the date of filing the affidavit of discovery, as
also the documents in respect of the properties held by him and the personal
accounts maintained by him. The respondent was to file the affidavit of
discovery on March 8, 1970. It was specifically stated that no extension of time
will be allowed for filing the affidavit and that the discovery should be made
within the time. The respondent did not file the affidavit in pursuance to the
order. On March 31, 1970, he moved an application stating that he wants to file
a revision against the order dated February 23, 1970, before the High Court and
that two months time may be allowed for the purpose. The Court rejected the
application for time on April 4, 1970, on the ground that the application for
permission to sue in forma pauperis was pending for the last seven years and
that the respondent had ample time for filing the revision if he was diligent in
the matter. The respondent's counsel then moved another application on the same
day stating that the respondent wants to adduce evidence and that since he had
not come to Court in the expectation that his earlier application dated March
31, 1970, for adjournment would be allowed, the case may be adjourned. This
application was also rejected by the Court. And as counsel for the respondent
reported no instruction and as there was no evidence to show that the respondent
was a pauper, the Court dismissed the application for permission to sue in forma
pauperis and directed the respondent to pay the court fee within 15 days.
3. The
respondent challenged the order directing discovery of documents passed on
February 23, 1970, and that dismissing his application for permission to sue in
forma pauperis passed on April 4, 1970, in revision before the High Court.
The High
Court held that since the proceedings under rules 6 and 7 of Order 33 are
summary in character, the "sophisticated procedure" for discovery should not
have been resorted to by the appellant, that the documents of which discovery
was sought were not specified in the application of the appellant and,
therefore, the application for discovery was bad, that the enquiry under Rules 6
and 7 of Order 33 was primarily a matter between the respondent and the State
Government and that the trial Court should not have adopted the procedure for
discovery and inspection at the instance of a private party like the appellant.
The Court further held that the trial Court acted with material irregularly as
it did not consider the question of the necessity for discovery of the documents
or the relevancy of the documents of which discovery was sought and also for the
reason that, in ordering discovery of the documents relating to personal
accounts, and pass books, it overlooked the right of the respondent to claim
privilege. And as regards the order passed on April 4, 1970, dismissing the
application for permission to sue in forma pauperis after rejecting the
application for adjournment, the Court said that the trial Court betrayed an
anxiety to get rid of an application to add to the figures of its disposal. The
Court, therefore, set aside the order for discovery as well as the order
dismissing the application for permission to sue in forma pauperis.
4. The
respondent submitted that the procedure for discovery of documents is not
permissible in proceedings under Order 33 and that it is not salutary to adopt
the procedure even if permissible. In Vijay Pratap Singh v. Dukh Haran Nath
Singh, (1962) Supp 2 SCR 675 = (AIR 1962 SC 941), this Court has held that "the
suit commences from the moment an appellation for permission to sue in forma
pauperis as required by Order 33 is presented". If that be so, the provisions of
Rule 12 of Order 11 relating to discovery would in terms apply to proceedings
under Order 33. There is also no reason why, if the provisions of Order 1, rule
10 relating to additions of parties, of Order 9 dealing with appearance of
parties and consequence of non-appearance, and of Order 39 relating to temporary
injunctions would apply to proceeding under Order 33, the provisions in Order 11
dealing with discovery of documents should not apply to such proceedings.
In England,
discovery is ordered in any 'cause' or 'matter' in the Supreme Court to which
the rules of the Supreme Court apply. And 'cause' includes any action, suit or
other original proceeding between a plaintiff and defendant. Generally speaking,
discovery is granted there in all proceedings except purely criminal proceedings,
and civil proceedings where the action is brought merely to establish a
forfeiture or enforce a penalty. Halsbury's Laws of England, Vol. 12, p. 2.
There is no reason to hold, if costs could be saved, that it is not salutary to
resort to the procedure in proceedings under Order 33.
5. We
think that the High Court was wrong in holding that since the application for
discovery did not specify the documents sought to be discovered, the lower Court
acted illegally in the exercise of its jurisdiction in ordering discovery.
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 ? Order 11 rule 12 provides :
"12. 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 the 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 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.
6. The
High Court was equally wrong in thinking that in passing the order for
discovery, the trial Court acted illegally in the exercise of its jurisdiction
as it deprived the respondent of his right to claim privileges for
non-production of his pass book and personal accounts, because the stage for
claiming privilege had not yet been reached. That would be reached only when the
affidavit of discovery is made. Order 11, Rule 13 provides that every affidavit
of documents should specify which of the documents therein set forth the party
objects to produce for inspection of the opposite party together with the
grounds of objection.
Nor do
we think that the High Court was right in holding that the documents ordered to
be discovered were not relevant to the inquiry.
The documents
sought to be discovered need not be admissible in evidence in the enquiry or
proceedings. It is sufficient if the documents would be relevant for the purpose
of throwing light on the matter in controversy. Every document which will throw
any light on the case is a document relating to a matter in dispute in the
proceedings, though it might not be admissible in evidence. In other words, a
document might be inadmissible in evidence yet it may contain information which
may either directly or indirectly enable the party seeking discovery either to
advance his case or damage the adversary's case or which may lead to a trial of
enquiry which may have either of these two consequences.
The word 'document' in this context includes anything that is written or
printed, no matter what the material may be upon which the writing or printing
is inserted or imprinted. We think that the documents of which the discovery was
sought, would throw light on the means of the respondent to pay court fee and
hence relevant.
7. We
venture to think that the High Court was labouring under a mistake when it said
that the enquiry into the question whether the respondent was a pauper was
exclusively a matter between him and the State Government and that the appellant
was not interested in establishing that the respondent was not a pauper. Order
33, Rule 6 provides that if the Court does not reject the application under R.5,
the Court shall fix a day of which at least 10 days' notice shall be given to
the opposite party and the Government pleader for receiving such evidence as the
applicant may adduce in proof of pauperism and for hearing any evidence in
disproof thereof. Under O.33, Rule 9, it is open to the Court on the application
of the defendant to disappear the plaintiff on the grounds specified therein,
one of them being that his means are such that he ought not be continue to sue
as a pauper. An immunity from a litigation unless the requisite court fee is
paid by the plaintiff is a valuable right for the defendant. And does it not
follow as a corollary that the proceedings to establish that the
applicant-plaintiff is a pauper, which will take away that immunity, is a
proceeding in which the defendant is vitally interested ? To what purpose does
Order 33, Rule 6 confer the right on the opposite party to participate in the
enquiry into the pauperism and adduce evidence to establish that the applicant
is not a pauper unless the opposite party is interested in the question and
entitled to avail himself of all the normal procedure to establish it ? We can
think of no reason why if the procedure for discovery is applicable to
proceeding under Order 33, the appellant should not be entitled to avail himself
of it.
We also
do not think that there is any point in the criticism of the High Court that the
order for discovery was vague. The first item in the order was in respect of the
documents relating to the bank accounts of the respondent from March 1, 1963, to
the date of the affidavit. The second item related to documents in respect of
the immovable properties held by him during the same period and the third item
was in respect of documents relating to the personal accounts maintained by him
for the same period. The order was as specific as it could be.
8.
Counsel for the appellant contended that even if the order for discovery of
documents was bad in law, the High Court was not justified in interfering with
it. And as regards the order dated April 4, 1970, dismissing the application for
permission to sue in forma pauperis after rejecting the application for time, he
said, the High Court was really interfering with the discretion of the trial
Court in the matter of adjournment. The jurisdiction of the High Court under
Section 115 of the C.P.C. is a limited one. As long ago as 1884, in Rajah Amir
Hassan Khan v. Sheo Baksh Singh, (1884) 11 Ind App 237 (PC), the Privy Council
made the following observation on S.622 of the former Code of Civil Procedure,
which was replaced by S.115 of the Code of 1908 :
"The
question then is, did the judges of the lower Courts in this case, in the
exercise of their jurisdiction, act illegally or with material irregularity. It
appears that they had perfect jurisdiction to decide the question which was
before them, and they did decide it. Whether they decided rightly or wrongly,
they had jurisdiction to decide the case; and even if they decided wrongly, they
did not exercise their jurisdiction illegally or with material irregularity".
In
Balakrishna Udayar v. Vasudeva Aiyar, 44 Ind App 261 = (AIR 1917 PC 71), the
Board observed :
"It will
be observed that the section applies to jurisdiction alone, the irregular
exercise or non-exercise of it, or the illegal assumption of it. The section is
not directed against conclusions of law or fact in which the question of
jurisdiction is not involved".
In N. S.
Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras, (1949) 76 Ind
App 67 = (AIR 1949 PC 156), the Judicial Committee said that Section 115
empowers the High Court to satisfy itself on three matters, (a) that the order
of the subordinate court is within its jurisdiction; (b) that the case is one in
which the Court ought to exercise jurisdiction; and (c) that in exercising
jurisdiction the Court has not acted illegally, that is, in breach of some
provision of law, or with material irregularity, that is, by committing some
error of procedure in the course of the trial which is material in that it may
have affected the ultimate decision. And if the High Court is satisfied on those
three matters, it has no power to interfere because it differs from the
conclusions of the subordinate court on questions of fact or law.
9. This
Court, in Mahindra Land and Building Corporation Ltd. v. Bhutnath Banerjee, AIR
1964 SC 1336 and Abbasbhai v. Gulamnabi, AIR 1964 SC 1341 has held that a
distinction must be drawn between the errors committed by subordinate courts in
deciding questions of law which have relation to, or are concerned with,
questions of jurisdiction of the said Court, and errors of law which have no
such relation or connection. In Pandurang Dhondi v. Maruti Hari Jadhav, (1966) 1
SCR 102 = (AIR 1966 SC 153), this Court said :
"The
provisions of S.115 of the Code have been examined by judicial decisions on
several occasions. While exercising its jurisdiction under S.115, it is not
competent to the High Court to correct errors of fact however gross they may be,
or even errors of law, unless the said errors have relation to the jurisdiction
of the Court to try the dispute itself. As clauses (a) (b) and (c) of S.115
indicate, it is only in cases where the subordinate Court has exercised a
jurisdiction not vested in it by law, or has failed to exercise a jurisdiction
so vested, or has acted in the exercise of its jurisdiction illegally or with
material irregularity that the revision jurisdiction of the High Court can be
property invoked. It is conceivable that points of law may arise in proceedings
instituted before subordinate courts which are related to questions of
jurisdiction. It is well settled that a plea of limitation or a plea of res
jurdicata is a plea of law which concerns the jurisdiction of the court which
tries the proceedings. A finding on these pleas in favour of the party raising
them would oust the jurisdiction of the court and so an erroneous decision on
these pleas can be said to be concerned with questions of jurisdiction which
fall within the purview of S.115 of the Code. But an erroneous decision on a
question of law reached by the subordinate court which has no relation to
questions of jurisdiction of that court, cannot be corrected by the High Court
under S.115".
10. The
word "jurisdiction" is a verbal cast of many colours. Jurisdiction originally
seems to have had the meaning which Lord Baid ascribed to it in Anisminic Ltd.
v. Foreign Compensation Commission (1969) 2 AC 147, namely, the entitlement "to
enter upon the enquiry in question". If there was an entitlement to enter upon
an inquiry into the question, then any subsequent error could only be regarded
as an error within the jurisdiction. The best known formulation of this theory
is that made by Lord Denman in R. v. Bolton (1841) 1 QB 66. He said that the
question of jurisdiction is determinable at the commencement, not at the
conclusion of the enquiry. In Anisminde Ltd., (1969) 2 AC 147 Lord Reid said :
"But
there are many cases where, although the tribunal had jurisdiction to enter on
the enquiry, it has done or failed to do something in the course of the enquiry
which is of such a nature that its decision is a nullity. It may have given its
decision in bad faith. It may have made a decision which it had no power to
make. It may have failed in the course of the enquiry to comply with the
requirements of natural justice. It may in perfect good faith have misconstrued
the provisions giving it power to act so that it failed to deal with the
question remitted to it and decided some question which was not remitted to it.
It may have refused to take into account something which it was required to take
into account. Or it may have based its decision on some matter which, under the
provisions setting it up, it had no right to take into account. I do not intend
this list to be exhaustive".
In the
same case, Lord Pearce said :
"Lack of
jurisdiction may arise in various ways. There may be an absence of those
formalities or things which are conditions precedent to the tribunal having any
jurisdiction to embark on an enquiry. Or the tribunal may at the end make an
order that it has no jurisdiction to make. Or in the intervening stage while
engaged on a proper enquiry, the tribunal may depart from the rules of natural
justice; or it may ask itself the wrong questions; or it may take into account
matters which it was not directed to take into account. Thereby it would step
outside its jurisdiction. It would turn its inquiry into something not directed
by Parliament and fall to make the inquiry which the Parliament did direct. Any
of these things would cause its purported decision to be a nullity".
11. The
dicta of the majority of the House of Lords, in the above case would show the
extent to which 'lack' and 'excess' of jurisdiction have been assimilated or, in
other words, the extent to which we have moved away from the traditional concept
of "jurisdiction". The effect of the dicta in that case is to reduce the
difference between jurisdictional error and error of law within jurisdiction
almost to vanishing point. The practical effect of the decision is that any
error of law can be reckoned as jurisdictional. They comes perilously close to
saying that there is a jurisdiction if the decision is right in law but none if
it is wrong. Almost any misconstruction of a statute can be represented as
"basing their decision on a matter with which they have no right to deal",
"imposing an unwarranted condition" or "addressing themselves to a wrong
question". The majority opinion in the case leaves a Court or Tribunal with
virtually no margin of legal error. Whether there is excess of jurisdiction or
merely error within jurisdiction can be determined only construing the
empowering statute which will give little guidance. It is really a question of
how much latitude the Court is prepared to allow in the end it can only be a
value judgment (See H.W.R. Wade, "Constitutional and Administrative Aspects of
the Anismenic case", Law Quarterly Review, Vol. 85, 1969, P.198). Why is it that
a wrong decision on a question of limitation or res judicata was treated as a
jurisdictional error an liable to be interfered with in revision ? It is a bit
difficult to understand how an erroneous decision on a question of limitation or
res judicata would oust the jurisdiction of the Court in the primitive sense of
the term and render the decision or a decree embodying the decision a nullity
liable to collateral attack. The reason can only be that the error of law was
considered as vital by the Court. And there is no yardstick to determine the
magnitude of the error other than the opinion of the Court.
12. The
trial Court had jurisdiction to pass the order for discovery. Even if lack of
jurisdiction is assumed to result from every material error of law - even an
error of law within the jurisdiction in the primitive sense of the term - we do
not think the order was vitiated by any error of law. The rejection of the
application for time and the consequent dismissal of the petition for permission
to sue in forma pauperis can hardly be said to sound in jurisdictional error
even in its extended sense as already explained. We are also not satisfied that
the refusal to adjourn occasioned any failure of natural justice so as to render
the order a nullity. Nor is there anything to show that in rejecting the
application for time the Court (acted) illegally or with material irregularity
in the exercise of its jurisdiction.
13. We
would, therefore, set aside the order of the High Court and allow the appeal but
in the circumstances make no order as to costs. This order will not in any way
affect the validity of the order passed by the High Court on August 26, 1971,
directing the respondent to delete the name of the wife of the appellant from
the array of parties.
Appeal
allowed.
