From Procedure to Practice: A Critical Analysis of the Consequences of Non-Production of Documents

Introduction

The production of documents is a cornerstone of the discovery process in civil suits, which allows both the parties and the courts to gather and examine evidence on record before the trial proceedings. The object of this process is to ensure a fair trial, reduce the chances of parties introducing manufactured evidence, and prevent delays in producing all relevant documents before the court. It also ensures that no dubious evidence is introduced at the later stage, which may end up prejudicing the other side. Documents must be produced along with plaints and written statements, and originals may be introduced at any time before the settlement of issues. However, there are often cases of parties filing applications to introduce documents at later stages during the trial which is the topic of the present blog.

The first section tracks the legislative history of the significant provisions and the amendments which have come into place. The second section argues that the increasingly liberal approach of courts in cases of non-compliance along with the absence of any standard for discretion have made the provision a hollow formality and the third section gives a three-pronged test which the courts may apply to remedy this problem.

I.  Legislative History: Decoding the Law and Legislative Intent

Parties to a suit are enjoined to produce all documents on which they sue or seek to rely along with their plaint and written statements. Order VII Rule 14 of the Code of Civil Procedure, 1908 addresses the production of documents on which the plaintiff sues or relies with the plaint, and Order VIII Rule 1A addresses the same in the case of production by defendant with their written statement. These provisions also state that if a party fails to produce the documents, they will not be received in evidence except with the leave of the court.

However, these rules of non-production did not exist so in the original Code of Civil Procedure, where this above rule existed under Rule 2 of Order XIII as the ‘Effect of Non-production of Documents.’ It stated that evidence will only be received at any subsequent stage if good cause is shown, it is to the satisfaction of the court, and the court records these reasons for non-production. There was a balance between allowing production at later stages in the form of these mandatory safeguards.

It is relevant to note the changes which the 1999 Amendment brought to this law; the amendment removed Rule 2 entirely and added the consequences of non-production within Order VII Rule 14 and Order VIII Rule 1A. However, Order VII rule 14(3) read that when a document was not filed as required under the rule, it would not be allowed to be received in evidence at the hearing of the suit. Thus, the amendment took away the power of the court to allow the production of documents at any later stage in any case, irrespective of the reasons for non-production. As expected, this amendment faced backlash and was amended again, giving us the provision as it stands today, which allows production at later stages with the only applicable standard being leave of the court.

II.   Judicial Application: Eroding Procedure through Discretion

Parties often file applications during the trial to produce documents for the first time or adduce additional documents. The court has been given discretion to allow production if it is satisfied that good cause is shown. However, this discretion must be exercised sparingly and for an overpowering reason, in a reasonable manner. Since Order VII Rule 14(3) is an exception, it must be applied in rare cases, and not as a matter of routine. Judges have read these considerations into the provision when allowing for production during trial. These considerations, however, have eroded to leave no necessary standards for judges to consider before allowing such applications, with the exercise of this power having become a matter of routine. It has become common practice to allow additional documents, even when no sufficient reason has been adduced by the parties.

Judges have done so by noting that the procedural rules should be construed liberally as a means to advance the cause of justice. This is a corollary of the proposition that procedure is a ‘handmaiden of justice’. That procedural law is intended to be a tool for facilitating and advancing justice, not a punitive mechanism designed to penalize or ensnare individuals. When interpreting procedural sections, courts must be cautious of overly strict or technical constructions that leave no room for reasonable flexibility when such constructions undermine the purpose of the section.

However, the discretion given to the judges must not override justice itself, for the provision was clearly inserted for a purpose. To circumvent the procedure in the search for truth casts doubt on the veracity of the truth itself, along with the means of finding the same. To allow production in the midst of trial does not only lead to unnecessary delay, it can be used as a tactic to burden the opposite party, thereby causing prejudice.

In Billa Jagan Mohan v. Billa Sanjeeva, judges noted that if the genuineness of the document is beyond doubt, and it is relevant to decide the issue in controversy, it must be allowed. The burden of showing good cause and sufficient reason for not producing the documents beforehand is thus taken away. Such practices oppose the legislative intent of bringing in such a provision and leads to never-ending trials. They also leave room for parties to resort to such practices as a tactic to disconcert the opposing party and leave potential for misuse and abuse of the provision by lawyers.

III.       The Way Forward

Courts must put forth a standard for the admissibility of documents during trial. To address this issue, a three-pronged test is proposed.

First, the court must evaluate the amount and extent of delay and the reason behind the same, considering these factors in tandem. For documents introduced at later stages of the trial, the court must scrutinize why they were not presented earlier. Key considerations may include whether the documents were previously unavailable to the party or not in their possession or whether the late introduction is an attempt to prolong the trial.

The second prong is of relevance and necessity of the documents. The court must assess the purpose and significance of the additional documents. They should, prima facie, be necessary for the court to reach a conclusion and have material bearing on the case’s outcome.

The third prong evaluates the prejudicial value of allowing such production. The process of adducing the additional documents must not unfairly prejudice the opposing party. This consideration borrows from the balancing test in evidence law. There are cases in which the probable delay may be huge, and the documents do not materially affect the decision, in such cases, the court should exercise its discretion in rejecting the application for production.

The primary goal of procedure is to ensure justice for all parties. Without such laws to regulate how disputes are handled, the pursuit of justice would be uncertain and lack both faith and foundation leading to unnecessary delays. The court thus, must set suitable standards for such procedures to ensure that the rights of all parties and of the process are guaranteed.


This article is authored by Arushi Singh, a third year student at the National Law School of India University, Bangalore.

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