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Interrogatories and Privileged Documents: A Discovery Device in Civil Suit

It is important to answer some questions which arise after settlement of issues due to new discovery of information which might be known to one party but not to the other. In such circumstances the concept of interrogatories comes into existence. This research explored the existing documents, literature and resources available on civil procedure code, 1908 pertaining to the concept of interrogatories and privileged document.

The study of such documents has been done through the case studies to reach:
I) The objective behind the concept of interrogatories
II) Permissibility of interrogatories
III) The importance of the concept in civil suit.
The silent finding of the study is that the certain measures can be taken to stop scandalous, mala fide or immaterial interrogatories. Further the co-existence of interrogatories and privileged document at the time of civil suit in a civil court.

There is a well settled procedure enshrined in the Civil Procedure Code, 1908 for civil suits, from the presentation of plaint to the summon to the defendant. In the civil suit, after filing the written statement by the defendant and summon being sent to both the parties for the first hearing which leads to the settlement of issues. But there are certain questions which come into existence after the settlement of issues due to some information received by one party which might not be known to the other party. In such circumstances the concept of interrogatories plays an important role. The concept of interrogatories can be defined as a formal or written question that requires an answer by direction of the court[1]. The same has been enshrined in the Civil Procedure Code, 1908.[2] “In any suit the plaintiff or defendant by leave of the Court may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties, and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer.[3]This provision under Civil Procedure Code clearly states that any party to the suit can go for the interrogatories against the opposite party. However, there are certain exceptions where these interrogatories cannot be asked i.e. when there is mala fide intention behind seeking interrogatories or when there is privileged information or privileged documents[4] are in question.

Under the Indian laws the following documents fall in the category of privileged documents:

# The documents which are used or may be used as evidence by a party to prove his own case or title.
# Any information shared by the client with his legal advisor[5]
# Any information or document related to the affairs of the state which may be confidential in nature and production of the same would be injurious to public interest.[6]

Further, as every civil suit consists of two types of facts. First, the facts which constitutes a party’s case (factaprobanda) and second, the facts by which the said case is to be proved (factaprobantia). The first type of facts reveals the nature of the party’s case and the later type of facts construct the evidence of his case. The party is only entitled to know first type of facts and not the later one. To know such facts a party can use a device or instrument of interrogatories.

Objective:
Under the Civil Procedure Code, the court is empowered to make an order for discovery.[7] The objective behind such provision is to ascertain the truth by making parties disclose their case completely. The object behind the concept of interrogatories can be seen in two ways: Firstly, to understand the nature of the case of opponent, Secondly, to strengthen his own case.[8]These interrogatories enable all the parties to obtain information and evidences that are in possession of other parties. Under the Civil Procedure Code, gathering of this information is known as discovery.[9] The provisions enshrined in Order XI not only give the right to obtain but also save the expenses by obtaining information as to material facts. Under these provisions, each party has a right to submit interrogatories relating to the matter in issue.[10] The provision related to interrogatories also narrows the point in issue and saves the party from time consuming process of obtaining information from his opponent. It provides a fair chance to the party to prove or support his case or to destroy the case of other side.[11] Further the power of the court enshrined in the provisions of Civil Procedure Code related to interrogatories[12] are liberal and are not restricted by technicalities.[13]

Procedure to Administer:

Interrogatories may be conducted in writing with the permission of the court or with the subjection to the conditions and limitations directed by the court.[14]The subject of interrogatories shall be submitted to the court in the form of application and the court shall decide within seven days of filing of the application.[15] It can be conducted either by the plaintiff to the defendant or by the defendant to the plaintiff[16] or by one plaintiff to another plaintiff or by one defendant to another defendant.[17] Once the party has delivered one set of interrogatories to the other party, the same party cannot deliver another set of interrogatories without the permission of court. The prerequisites to seek an order from court to conduct an interrogatory is that it should be filed in written form before the court and it can only be administered after the written statement has been filed by the defendant. In the case where a corporation or a body of person is a party, the interrogatories can be conducted to an officer or member of such corporation or body.[18] The interrogatories shall have reasonable connection with any matter in question in the suit.[19] This shall be in the form of question of facts and not in the form of question of law. Further the Civil Procedure Code, 1908 has given the subscribed format in which the interrogatories must be filed.[20] They should be in form number 1 and 2 of appendix C and the affidavit which has to be filed along with interrogatories should be in form number 3 of appendix C. The affidavit to answer the interrogatories shall be filed within ten days after the service of interrogatories.[21] Any interrogatory shall not be allowed at an initial or premature stage of the suit.[22] After the order is being passed by the court to answer interrogatories if the party fails to comply with it his suit can be dismissed if he is a plaintiff or his defence can be struck off if he is a defendant.[23]

Permissibility of Interrogatories:

The general rule says the permissibility of interrogatories is on the discretion of the court where the courts are empowered to decide on which interrogatories can be allowed and which interrogatories cannot be allowed. Under the provision of Civil Procedure Code, it is clearly stated that any party to the suit may conduct or administer interrogatories against the opponent with the permission of court. But there have also been some exceptions when the court may deny the administration of interrogatories by one party against the opponent. Even though there are not any prescribed provisions regarding what may be allowed and what not but when there is a question which either proves the case of a party who is seeking it or destroys the case of opponent, on such interrogatories court shall take a call-in assertion.

1. What interrogatories are permissible?

As per the general rule, interrogatories are allowed when there is a need of such interrogatories to prove the case of the party administering the interrogatories or to destroy the case of his opponent. This rule gives the right to the party ‘Right to obtain information’ which is a valuable right and shall not be taken away from the party.[24] As previously mentioned the power of the courts to order interrogatories is not restrictive and the same shall be exercised liberally.[25] Whenever the interrogatories are seeked related to any fact which is relevant to the matter in issue such interrogatories shall be allowed.[26] However the term “matter” expresses a question or issue in the suit not the thing about which such dispute arises. Furthermore, the interrogatories cannot be discarded or disallowed merely on the ground that the party has other means of proving the fact in question. [27] Unlike pleadings interrogatories are not confined to the material facts on which parties intend to rely. They are more directed to the evidence by which the party interrogating wants to establish the fact at the trial.

2. What interrogatories are not permissible?

The right to obtain information which is enshrined in the Civil Procedure Code, Order XI may be abused in certain cases. To restrain or stop such abuse there shall be certain limits to exercise such right. As per the rule, the power enshrined in Order XI shall be exercised with care and caution and shall not be used for oppressing the other side in the suit. In the following circumstances interrogatories may not be allowed:
# To obtain the facts that is exclusively the evidence of the opponent’s case.
# Any information regarding confidential communication between opponent and his legal advisor.
# If it is irrelevant to the case or not bona fide
# If it involves privileged documents and the disclosure of the same can be injurious to public interest
# If it is not definite but only in the hope of discovering something i.e. also called as fishing interrogatories.[28]
# If they are in the nature of cross examination.
# If it is regarding the question of law.

Privilege in Document Discovery (Privileged Documents):
As already stated above the party has a right to obtain information from the other party to prove his case or to destroy the case of opponent but this right has certain exceptions where some documents or information cannot be used in examination for discovery or at trial. Such information or document can be called as privileged documents. The term privilege in this context refers to a type of information and document that can be withheld from the discovery process of the court. The objective behind such privileged documents is to protect the private interest of the parties and to enable them to access free legal advice. The same principle has been enshrined in the Civil Procedure Code, 1908.[29] It states that in the following matters or cases the party cannot claim to obtain information or document through interrogatories.

· The documents or information disclosing the evidence: The documents or information which reveals evidence of the party, such document or information shall not be ordered to be produced. The ratio behind such exception is that party shall not come to court after knowing how his opponent is going to prove his case.[30]

· If the document or information is regarding the confidential communication between client and his legal advisor[31]: This privilege protects information and communication taken place between a lawyer and a client in the process of obtaining legal advice. It can be also referred as “solicitor-client privilege”. To remove vagueness and to avoid confusion in terminology, it may also be referred as “legal advice privilege”. This privilege is permanent in duration and belongs exclusively to the client.[32]To claim a privilege on legal advice there are some essentials which is required to be followed.
a. It must be between a lawyer and a client.
b. It must be made in confidence i.e. must be a confidential communication.
c. It must be in the course of seeking legal advice.

If the document or information is related to affairs of the state and confidential official communication and the disclosure of the same would be injurious to public interest[33] : This privilege is bases on the principle of “saluspopuliest suprema lex” which means public welfare is the highest law. In English law this privilege is also known as “Crown Privilege”. Under this privilege the government agencies or officials may refuse to produce the document or information to the party seeking for it. Although there is no clear definition regarding this privilege is given in the code.[34] It is mainly an amorphous concept developed by the case laws.[35]

Privileged Documents: The grounds for objection to answer Interrogatories:
As stated earlier the court order is sine quo to administer interrogatories against the opponent. However even after the order given by the court, the party can object interrogatories on the following grounds:

Scandalous interrogatories: Any interrogatories administered with the intention to scandalise the proceeding or the suit by raising questions which are irrelevant. The opponent party can object such interrogatories.[36]
Irrelevant interrogatories: The provisions for interrogatories in the Civil Procedure Code have made a distinction between interrogatories and cross examination. It states that it must be directly relevant to the matter in issue.[37] Further interrogatories shall not be allowed if it does not aim any defence in law to the suit.

Mala fide interrogatories: Regardless of the fact that the interrogatories are relevant such interrogatories can be objected on the ground that the ulterior object of such interrogatories is beyond the scope of the suit. The meaning thereby is that if the intention of the party to administer interrogatory against the opponent is malafide such interrogatories can be objected.

Premature interrogatories: Any interrogatory which may be relevant and bona fide for the purpose of the suit cannot be allowed at the premature stage of the suit.[38]

In the case of Contracts by way of wager: Where there is any suit regarding the defence of wager the court can refuse to allow the party to administer interrogatories upon his opponent. The ratio behind such refusal is that it can be unfair to compel a person to disclose certain information which will only support the case of the party seeking interrogatory.[39]

Oppressive interrogatories: The party can object interrogatories if such interrogatories are unduly oppressive to the party.[40]For example: party is entitled to object interrogatories which are likely to incriminate him of an offence.[41] However the nature of interrogatories, whether it’s oppressive or not is a question of fact and depends upon the circumstances of each case.[42]

Privileged documents: As mentioned above any information or document which is privileged under the rule of law, on the ground of such privilege a party can object the interrogatories. However, to claim such privilege party must file an affidavit in the court duly certified and signed by the parties where a court can decide whether such refusal falls under the ground of privilege documents or information.[43] Under this privilege the party is not bound to produce public official documents which may cause a threat to public interest.[44]

Recourse to the Rule 6 of Order XI:[45] As per the Rule 6, party can only object some of the interrogatories not all interrogatories. However, if a party seeks to object all the interrogatories, in such circumstances parties shall take recourse of Rule[46] 7 of Order XI. The application to object all interrogatories at a time under Rule 7 shall be filed within seven days of service of such interrogatories.
Under Indian Evidence Act,1872: If the party refuses or objects to any interrogatories regarding producing any document or information in the court of law, such information or document cannot be used as evidence without the consent of the other party or the order of the court.[47]

Conclusion:
The intention of the legislature behind the provision of interrogatories is quite clear. The concept of interrogatories narrows down the points in issue by saving the parties from extra expenses through enabling them to obtain all information related to material facts of the case. However, it is a discretionary power of the court to order interrogatories against the opponent party but such power shall be exercised very cautiously. To counter scandalous, mala fide or immaterial interrogatories. Further the right to obtain information which is given under the statute shall not be used to abuse the interest of opponent party. Hence there shall be a balance between the right of the parties administering interrogatories and the privileged information or documents possessed by opponent party. Such equilibrium shall not be disturbed in any given circumstances as it can be injurious, dangerous or threat to the public interest. Further the author recognizes the importance of interrogatories in the civil suit where this concept can be used as a device to discover the material facts and to obtain information which is relevant to the matter in issue. It enables the parties to get a fair chance to present his case before the court of law with complete information regarding the facts of the case. However, author would like to highlight certain majors which can be taken for the effective use of concept of interrogatories in a civil suit.

· Parties must be restricted in seeking interrogatories to gather information regarding the issue in the case not issues which led to the case.
· Interrogatories can be allowed at an initial stage of suit where such interrogatories may sub serve the just and fair principle in the suit.
· Where there is a question of privilege, court shall consider the importance of such information in the light of justice before rejecting such interrogatories merely on the ground of privileged document.

End-Notes
[1] Black law dictionary, ed. 2013.
[2] Order XI, Rule 1.
[3]Mulla, The Code of Civil Procedure, 18th ed. Vol 2
[4] 1953 Mad 228
[5] Indian Evidence Act,1872, Sec 126 &129.
[6] Indian Evidence Act,1872, Sec 123 & 124. See also, State of Punjab vs. Sodhi Sukhdev Singh, AIR 1961 SC 493.
[7] Civil Procedure Code, Sec 30.
[8] Thakur Prasad vs. Mohd. Sohayal, AIR 1977 PAT 233.
[9] Civil Procedure Code,1908, Order XI. see also, concise Oxford English dictionary, ed. 2002 @ 409.
[10] Union of India vs. Imbrahim Uddin, (2012) 8 SSC 148.
[11] Raj Narayan vs. Indira Nehru Gandhi, AIR 1972 SC 1302.
[12] Supra 2.
[13] Supra 11.
[14] Civil Procedure Code,1908, Sec 30, Order XI, Rule 1.
[15] Order XI, Rule 2; see also, Premsukh vs. Indronath, ILR (1891) 18 Cal 420.
[16] Civil Procedure Code,1908, Order XI, Rule 1.
[17] Ibid.
[18] Civil Procedure Code, 1908, Order XI, Rule 5.
[19]Civil Procedure Code, 1908, Order XI, Rule 6 & 7.
[20] Civil Procedure Code, 1908, Order XI, Rule 4 & 9.
[21] Civil Procedure code, 1908, Order XI, Rule 8.
[22] Civil Procedure Code, 1908,Order XI, Rule 20
[23] Civil Procedure Code, 1908,Order XI, Rule 11
[24]Ramlalsao vs. Tansingh,AIR 1952 Nag 135.
[25] Ibid.
[26] Raj Narayan vs. Indira Nehru Gandhi, AIR 1972 SC 1302..
[27] Nishi Prem vs. JavedAktar, AIR 1988 Bom 222.
[28] Supra 26.
[29] Civil Procedure Code, 1901,Order XI
[30] M.L Sethi vs. R.P. Kapur, (1972) 2 SCC 427.
[31] Indian Evidence Act, 1872,Sec 126 & 129
[32] Blank vs. Canada, [2006] 2 S.C.R. 319.
[33] Indian Evidence Act, 1872,Sec 123 & 124.
[34] Civil Procedure Code,1908.
[35] United States vs. Schine Chain Theatres, 4 F.R.D. 108.
[36]Allusen vs. Labouchare,( 1878) 3 QBD 654.
[37]Re Howel Morgan, (1888) 39 CD 316.
[38]Neckram vs. Bank of Bengal, (1887) 14 Cal 703.
[39]Bhagwadas vs. Burjorji, (1913) 37 Bom 347.
[40] Civil Procedure Code,1908, Order XI, Rule 7
[41] Meenakshi Sundaram vs. Radha Krishnan, AIR 1960 Mad 184.
[42] Hall vs. London and North-western railway company,(1877) 35 LT 848.
[43] Ram raja vs. Deo Narain, AIR 1945 Pat 453.
[44]Wadder vs. EI Co., (1865) 8 De GM & G 182. See also, Jehangir vs. Secretary of state,(1904) 6 Bom LR 131.
[45] Civil Procedure code, 1908.
[46]TeneriaModenna Franco vs. Newzealand Insurance co., (1924) 1 KB 79.
[47] Indian Evidence Act, 1872, Sec 164

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