MANU/AP/1019/2005

Equivalent Citation: 2006(3)ALD415, 2006(3)ALT129

IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD

C.R.P. Nos. 331 and 608 of 2005
Decided On: 30.11.2005
Appellants: Rajesh Bhatia and Ors.
Vs.
Respondent: G. Parimala and Ors.
Hon'ble Judges/Coram:
T. Ch. Surya Rao, J.
Counsels:
For Appellant/Petitioner/Plaintiff: D. Seshadri Naidu, Adv. in CRP No. 331/2005 and P.
Shiv Kumar, Adv. in CRP No. 608/2005
For Respondents/Defendant: D. Seshadri Naidu, Adv. for R-1 to R-5 in CRP No.
608/2005 and P. Shiv Kumar, Adv. for Respondent No. 1 in CRP No. 331/2005
Case Note:
Civil - Production of Documents - Order 11, Rule 14 of Code of Civil
Procedure Code, 1908 - Plaintiff filed suit for recovery of amount and direct
defendant to submit income tax returns and other documents - Judge
dismissed petition partly insofar as the income tax returns are concerned
and directed the first defendant to produce the bank statements - Hence,
this Petition - Held, if documents were public documents and were in
custody and possession of public servants who were only empowered to
grant certified copies - It should be endeavor of party who required them to
obtain certified copies in first instance - The Petitioner could not produce
those documents since they were in custody of Court - Insofar as income
tax returns of were concerned, there had been a prohibition contained in
Income Tax Act for producing those documents by the Department - The
proper procedure was to be to issue notice to defendant to file income tax
returns - If he failed, plaintiffs could either lead secondary evidence by
obtaining the certified copies from Department - Therefore, it was not case
of any discovery as regards existence of documents and need to inspect
those documents so as to shorten litigation - It was a matter where trial
process was on and had been going on - Hence, application under said order
could not be allowed - Petition allowed.
Ratio Decidendi:
"If documents are public documents and are in custody and possession of
public servants then it can be obtained by applying certified copy to the
Authority."
ORDER
T. Ch. Surya Rao, J.
1 . Inasmuch as both these revision petitions emanate from a common order dated
20-12-2004 passed by the learned VIII Additional Senior Civil Judge (Fast Track
Court) City Civil Court, Hyderabad, in I.A. No. 250 of 2004 in O.S. No. 35 of 2002,

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they can be disposed of together.
2. Briefly stated, the facts are thus:
The plaintiffs filed the suit for recovery of an amount of Rs. 3,83,0007- from
the defendants 1 and 2. The case of the plaintiffs was that on the request of
the first defendant the plaintiffs handed over the original sale deed dated 30-
08-1993 and the fixed deposit receipts worth Rs. 3,83,0007- to her and her
husband C.S. Sudhir Kumar. Plaintiffs used to receive interest amount of Rs.
3,5007- from the second defendant-bank on the above fixed deposits till
May, 2001. However, without any reason whatsoever the second defendant-
bank stopped suddenly from the month of June 2001 the payment of interest.
On enquiry, the plaintiffs came to know that these fixed deposit receipts were
given to the bank on hypothecation by the first defendant, who availed credit
facilities and bank guarantee. When the bank guarantee was revoked by
Andhra Bank, the second defendant-bank closed the above said F.D. Rs.
prematurely without giving any notice to the plaintiffs and adjusted the
amounts covered by those receipts against the revocation of bank guarantee
taken by the first defendant. Questioning the high-handed act of both the
defendants, the plaintiffs filed the suit for realization of the amounts covered
by the fixed deposits.
3 . The case of the first defendant was that the first plaintiff on whom the first
defendant reposed confidence misappropriated certain funds by committing fraud in
the first defendant's firm. The amount thus misappropriated was invested under
various fixed deposit receipts. Therefore, the plaintiff had no locus standi to claim the
amounts covered by the said fixed deposit receipts.
4. During the course of trial in the suit, the plaintiff filed I.A. No. 250 of 2004 under
Order 11, Rule 14 of the Code of Civil Procedure (for brevity 'the Code') requesting
the Court to direct the first defendant to submit the income tax returns for the period
1995-1996 to 2001-2002; the audit balance sheet; profit and loss account; details of
capital account; the statement of bank account of M/s Aar Bee Enterprises for the
period 1995-1996 to 2001-2002 bearing Current Account No. 3434; O.D. Account No.
6125 and O.D. Account No. 6187 with Vijaya Bank, Bank Street Branch, Hyderabad;
and Current Account No. 3583 in the A.P. Mahesh Co-operative Urban Bank Limited,
Sultan Bazar, Hyderabad on the premise that they are relevant for proper adjudication
of the case. Earlier a notice was served upon the counsel for the first defendant
requiring him to submit all the above mentioned records and when the first defendant
failed to produce those documents they filed the petition.
5. Under the impugned order the learned Judge dismissed the petition partly insofar
as the income tax returns are concerned and allowed the petition partly directing the
first defendant to produce the bank statements of Aar Bee Enterprises, some of which
had been filed in I.A. No. 109 of 2004.
6 . Having been aggrieved by the said order, the plaintiffs filed C.R.P. No. 331 of
2005 as against that part of the impugned order dismissing their application and the
first defendant filed C.R.P. No. 608 of 2005 as against that part of the impugned
order directing her to produce the bank statements. The matter is, therefore, at large
before this Court.
7. The plaintiffs filed the petition in I.A. No. 250 of 2004 obviously under Order 11,
Rule 14 of the Code. It is true that a wrong provision mentioned in an application is
of no significance provided the application could be maintained otherwise. It appears
that applications requiring the production of the documents by the adversary are

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being filed under Order 11 Rule 14 of the Code in the Courts below. Some of them
are being filed invoking the provisions of the Indian Evidence Act (for brevity 'the
Act'). The matter, therefore, gains significance to know what is the appropriate
procedure to be followed when the parties seek production of the documents which
are in the custody of the adversary or the agent of the adversary during the course of
trial, a fort/br/when it is manifestly a case where the parties are not seeking
discovery of the documents. Such problems do arise time and again before the Courts
below and might baffle the minds of the Courts. It is, therefore, expedient to address
the problem at length.
8 . It is appropriate at the outset to consider the provisions of the Code in the first
instance. The substantial provision which is relevant in the context is Section 30 of
the Code. It authorizes the Court to make such orders as may be necessary or
reasonable either of its own motion or on the application filed by the party for
delivery and answering of interrogatories; the admission of documents and facts; and
discovery, inspection, production, impounding and return of documents or other
material objects producible as evidence. Such orders, however, are subject to the
conditions and limitations that may be prescribed in Schedule appended to the Code.
The Section further authorizes the Court to issue summonses to persons whose
attendance is required either to give evidence or to produce documents and for that
purpose the provisions in Sections 27, 28 and 29 shall apply. Under Section 32 penal
consequences are envisaged. The Court may, therefore, compel attendance of any
person to whom a summons has been issued under Clause (b) of Section 30 either by
issuing a warrant for his arrest or by directing attachment and sale of his property or
by imposing a fine not exceeding Rs. 500/- or by ordering him to furnish security for
his appearance and in default commit him to the civil prison. The mandate contained
in Section 30 is further elucidated in the Rules prescribed under various Orders.
Order 11 deal with discovery and inspection; Order 12 deals with admission of
documents and facts; Order 13 deals with production, impounding and return of
documents; and Order 16 deals with summoning and attendance of witnesses either
to give evidence or to produce documents and give evidence. In the instant case, we
are not concerned with the other Orders except Order 11.
9 . It is expedient to understand the very scheme and object of the Code in having
incorporated Order 11 which will elucidate the provision. After the plaint has been
presented by the plaintiff and the written statement by the defendant in Court, it may
appear either to the plaintiff or to the defendant that the nature of his opponent's
case is not sufficiently disclosed in his pleadings. He is entitled to know beforehand
all material facts constituting the case of opposite party and all documents in his
possession or power relevant to the issue in the suit with a view of prove, maintain
or support his case or to understand, meet with, impeach or destroy the case of his
adversary at the hearing.
10. Where information sought is as to facts, the party is allowed to administer to his
adversary a series of questions, which are called interrogatories. The judge will go
through the proposed question to decided whether they are proper and relevant and
whether other side should be compelled to answer them on oath before the trial. In
legal terminology it is called discovery of facts. The object of documents material to
the issues in the suit from his adversary, the Court may compel the other party to
submit a list of documents and permit the party applying to inspect and also to take
copies of those documents before the trial. Such disclosure is known as discovery of
documents. Such discovery of facts and discovery of documents will narrow down the
controversy, avoid unnecessary expenses and shorten the litigation.
11. Rules 1 to 11 of Order 11 deal with discovery of facts, whereas Rules 12 to 20

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deal with discovery, production and inspection of documents, in other words
discovery of documents. Rule 21 lays down consequences of non-compliance with
order of discovery, Rule 22 allows answers in interrogatories to be used in evidence
by a party. Rule 23 deals with the application of the order to the minor children and
the defendant. Thus, from the scheme of the Code and the arrangement of various
Rules in the domain of the Order 11 under the caption "discovery and inspection", the
provisions deal with two aspects mainly viz., discovery by interrogatories and
discovery by documents.
12. In the instant case we are concerned with discovery of documents. Rules 12 to
20 deal with the same. Rules 12 reads that any party may apply to the Court for an
order directing any other party to the suit to make discovery on oath of the
documents which are or have been in his possession and power relating to any
matter in question involved in the suit. On such application being filed, the Court
may make an order in its discretion either refusing to allow the application or
directing the opposite party to make discovery. In the event, such an order is passed
by the Court exercising its discretion, the party required to make discovery should
file an affidavit as per Rule 13. Rule 14, which is germane in the context, reads as
under:
14. Production of documents.- it shall be lawful for the Court, at any time
during the pendency of any suit, to order the production by any party
thereto, upon oath, of such of the documents in his possession or power,
relating to any matter in question in such suit, as the Court shall think right;
and the Court may deal with such documents, when produced, in such
manner as shall appear just.
13. This provision reads that the Court has got ample discretion to direct the party at
any stage of the suit to produce upon oath such of the documents in his possession
or power pertaining to the matter in question and when the documents are thus
produced, the Court may deal with them in such manner as it shall appear just.
14. Rule 15 deals with the inspection of the document referred to in pleadings or
affidavits. Rule 16, however, contemplates a notice to be issued to the party for
production of the documents referred to in his pleading or affidavit. Rule 17,
however, deals with the time for inspection when notice is given. Where the party
omits to produce the documents who has earlier been served with notice under Rule
15, the Court may, as per Rule 18, make an order for inspection in such place and in
such manner as it may think fit. Where inspection is required of any business books,
as per Rule 19 the Court instead of ordering inspection of the original books may
order copy of the entries therein to be furnished and verified by affidavit. Rule 20,
however, deals with premature discovery.
15. The forms and notices required are given in Appendix-C. Forms Nos. 4, 5 and 6
are relevant in this regard. The order directing the party to make discovery on oath of
the documents which are or have been in his possession or power relating to suit
shall be in Form No. 4. Pursuant to that order, the party against whom the order has
been passed is required to file an affidavit in Form No. 5 specifying the documents in
regard to which he is inclined to produce. Form No. 6 is in respect of the order to be
passed by the Court under Rule 14 directing the production of the documents. These
forms shall be adopted with such variance as circumstances may require. For brevity
and better understanding of the matter, they may be extracted hereunder thus:
No. 4
Order for Affidavit as to Documents

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 (Order 11, Rule 12)
(Title as in No. 1. supra)
Upon hearing...; it is ordered that the...do within ...days from the date of
this order, answer on affidavit stating which documents are or have been in
possession or power relating to the matter in question in suit, and that the
costs of this application be.
No. 5
Affidavit as to Documents
(Order 11, Rule 13)
(Title as in No. 1, supra)
I, the above-named defendant C.D., make oath and say as follows:
1 . I have in my possession or power the documents relating to the
matters in question in this suit set forth in the first and second parts
of the first schedule hereto.
2 . I object to produce the said documents set forth in the second
part of the first schedule hereto [state grounds of objection].
3 . I have had but have not now, in my possession or power the
documents relating to the matters in question in this suit set forth in
the second schedule thereto.
4 . The last-mentioned documents were last in my possession or
power on [state when and what has become of them and in whose
possession they now are].
5. According to the best of my knowledge, information and belief, I
have not now, and never had, in my possession, custody or power or
in the possession, custody or power of my pleader or agent, or in
the possession, custody or power of any other person on my behalf,
any account, book of account, voucher, receipt, letter, memorandum,
paper or writing, or any copy of or extract from any such document,
or any other document whatsoever, relating to the matters in
question in this suit or any of them, or wherein any entry has been
made relative to such matters or any of them, other than and except
the documents set forth in the said first and second schedules
hereto.
No. 6
Order to produce Documents for
Inspection
(Order 11, Rule 14)
(Title as in No. 1, supra)
Upon hearing...and upon reading the affidavit of...filed the...day of...20...; it
is ordered that the ...do, at all reasonable times, on reasonable notice,
produce at ...situate at...the following documents, namely, ...and that the
...be at liberty to inspect and peruse the documents so produced, and to
make notes of their contents. In the meantime, it is ordered that all further
proceedings be stayed and that the costs of this application be...
16. A perusal of the above forms will elucidate the provisions contained in Rules

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12,13 and 14 of Order 11. If a party who seeks the assistance of the Court for
causing production of the document by his adversary may invoke these provisions.
Without the assistance of the Court, he may independently issue a notice to his
adversary requiring production of documents. Rule 16 of Order 11 enables him to do
so and that notice shall be in Form No. 7 of Appendix-C. This is meant for the
inspection of the documents. Similarly, a party can also issue notice to his adversary
for producing documents for the purpose of eliciting admission. Rules 8 of Order 12
is relevant in the context. The notice to be issued under Rule 8 of Order 12 shall be
in Form No. 12 of the Appendix-C. As discussed hereinabove, under the provisions of
Order 16, summons can be issued to the witnesses for production of documents and
to give evidence. Of course, they are not relevant for the present purpose. Thus, the
mandate contained in Section 30 of the Code has been further elucidated under
Orders 11,12,13 and 16, which deal with specifically discovery by interrogatories,
admission of documents and facts, discovery of documents and inspection thereof,
production, impounding and returning of documents or other material objects,
summoning witnesses to give evidence or to produce documents. Each heading,
therefore, has a specific purpose. If those provisions are read coupled with the forms
prescribed in Appendix-C, the position would be clear cogent and unequivocal. The
matters which are not covered by any of these provisions as discussed hereinabove,
can always be dealt under inherent jurisdiction of the Court.
17. In Halsbury's Laws of England, fourth edition, Volume 13 in para 1, the nature
and extent of discovery has been considered thus:
The term "discovery" in this title is used to describe the process by which the
parties to civil cause or matter are enabled to obtain, within certain defined
limits, full information of the existence and the content of all relevant
documents relating to the matters in question between them. The process of
the discovery of documents operates generally in three successive stages,
namely (1) the disclosure in writing by one party to the other of all the
documents which he has or has had in his possession, custody or power
relating to matters in question in the proceedings: (2) the inspection of the
documents disclosed, other than those for which privilege from or other
objection to production is properly claimed or raised: and (3) the production
of the documents disclosed either for inspection by the opposite party or to
the court.
The function of the discovery of documents is the provide the parties with
the relevant documentary material before the trial so as to assist them in
appraising the strength or weakness of their respective cases, and thus to
provide the basis for the fair disposal of the proceedings before or at the
trial. Each party is thereby enabled to use before the trial or to adduce in
evidence at the trial relevant documentary material to support or rebut the
case made by or against him to eliminate surprise at or before the trial
relating to documentary evidence and to reduce the costs of the litigation.
[Emphasis is mine]
At page 33 in para 37 it has been further dealt as under:
The obligation to disclose the existence of relevant documents is now
coextensive with the obligation to produce documents for inspection. The
fact that a document is privileged or otherwise protected from inspection is
no reason for not disclosing its existence.
In determining whether a document should be disclosed by a party two tests

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 should be applied: (1) whether it is relevant: (2) whether it is or was in the
possession, custody or power of the party or his agent: and in any case
when the order directing disclosure has limited discovery or relates to
particular documents only the terms of that order must be applied.
[Emphasis is mine]
In para 62 it is dealt as under:
The right to the production of documents is a corollary of the right to their
inspection, and an order for their production for inspection is the obvious
method of enforcing that right. If the party serving a list of documents, or if
a party served with a notice to produce for inspection documents referred to
in pleadings or affidavits, fails to serve the necessary notice offering
inspection or objects to produce any documents for inspection or offer
inspection at a time or place such that, in the opinion of the court, it is
unreasonable to offer inspection then or there, the party entitled to
inspection may apply for an order for production of the documents in
question for inspection at such time and place and in such manner as the
court thinks fit.
The power of the court to make an order for production for inspection is
discretionary, and the court will not make an order for the production of any
documents for inspection unless it is of opinion that the order is necessary
either for disposing fairly of the cause or matter or for saving costs. Whilst
the court may make an order for production for inspection at anytime, it will
not normally allow a plaintiff inspection before he has served his statement
of claim or a defendant before he has served his defence.
[Emphasis is supplied]
In para 69 it is dealt as under:
Although the obligation to produce documents for inspection is coextensive
with the obligation to disclose their existence, there are many relevant
documents the existence of which must be disclosed in the list of documents
but which are nevertheless protected from production. The grounds on which
this protection can be claimed can be classified under the following main
heads: (1) legal professional privilege; (2) that production is contrary to
public policy; (3) that the documents in question may tend to criminate the
party or his or her spouse; (4) that the production is contrary to some
statutory provision which imposes secrecy; (5) that production is contrary to
some express or implied agreement between the parties; and (6) that
production would, in the circumstances of the particular case, be oppressive.
(Emphasis is supplied)
In Corpus Juris Secundum, Volume 27, Clause 1, it has been mentioned thus:
The term "discovery" has several shades of meaning; but in the sense in
which it is most commonly used discovery is the disclosure by defendant of
facts, deeds, documents, or other things which are in his exclusive
knowledge or possession, and which are necessary to the party seeking the
discovery as a part of a cause or action pending, or to be brought in another
court or as evidence of his rights or title in such proceedings. Of course, in a
sense every bill in equity is a bill for discovery; discovery is incident to the
suit, and if the bill is sufficient to invoke equity jurisdiction it probes the

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 conscience of defendant and obliges him to answer fully as to all matters
charged. However, under the inflexible rules of the common law the parties
to an action were incompetent as witnesses and no means were provided by
which an adverse party could be compelled to produce documents in his
possession for the use of his opponent at the trial: and it was in order to
cure this defect that equity established the remedy of discovery as ancillary
or auxiliary to actions or causes of action at law, and which, in the absence
of statute, constitutes the sole means by which its purposes may be
accomplished.
[Emphasis is mine]
In Clause 4 it is mentioned thus:
The extent of the inquiry under a bill for discovery rests largely in the court's
discretion; and in determining what matters are proper subjects of discovery,
the pleadings must be kept in mind.
Materiality. Generally, the right to discovery of particular matters is governed
by their relevancy and materiality to the case of the party seeking it.
Accordingly, while discovery will be allowed as to matter material to the
claim or defence of the party seeking it, provided all other requisites are met,
it will not be allowed to determine matters not necessary or material or
relevant to the issue. A fundamental limitation on the right to discovery is
that a party is entitled to a discovery of only such material facts and
documents as relate to his own case, he is not entitled to a discovery merely
to enable him to disprove or pry into his adversary's case. Indeed, most
authorities have held that the matter sought to be discovered must relate to
applicant's affirmative case; but others have held that discovery need not be
confined to matters in support of party's affirmative case, but may be
allowed even as to matters in disproof of the adversary's case or defense,
provided applicant's attack on the adversary's case in more than a mere
negation thereof or denial of the allegations setting it fort. The mere fact that
the matters sought to be discovered are material to defendant's case does
not prevent their discovery if they are also material to complainant's case. A
bill will not lie to discover the names of the other party's witnesses, or the
evidence by means of which the adversary's case exclusively is to be
established.
[Emphasis is mine]
In Clause 18 it is mentioned as under:
A court of equity has inherent power to compel discovery and production of
books and papers in possession of the adverse party, independent of any
statute; and the principles which govern discovery in general are applicable
to the discovery of documentary evidence. The jurisdiction extends to cases
where such books and papers are evidential in an equitable cause pending in
the court, in which instance the right to their inspection is incidental to the
relief sought therein, and to cases arising under a bill for discovery and
incidental relief, or under a bill filed for discovery only in aid of a
prosecution or defence in litigation pending or contemplated, and to no
others. Notwithstanding the power is inherent, it should be exercised with
caution, and with due regard for, and rigid observance of, the constitutional
rights of persons to be secure from unreasonable search and seizure. Thus
the court should not award discovery by production of documents merely to

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 gratify curiosity or to enable one party to make undue inquisition into the
affairs of another; nor should such production be compelled where the facts
sought to be disclosed are immaterial or irrelevant, or where the discovery
would not avail the case of the party applying. The relief should not be
granted where the object sought by the discovery could be as well obtained
without the discovery, although in a suit seeking equitable relief primarily it
is not necessary to show as a prerequisite that the matter of which discovery
is sought cannot otherwise be proved, for the interrogating party is entitled
to it even if it is merely cumulative. On the other hand, the applicant or
complainant is entitled to discovery by production of documents which will
disclose facts material to his case, even though such facts are also material
to the adversary's case or serve the applicant only by way of furnishing
evidence in disproof of the adversary's case.
Ordinarily a production for inspection in advance of the trial will not be
ordered, especially where it would be necessary for the other party to
produce such documents at the trial or fail in his claim or defence, but where
a preponderating necessity therefore appears, inspection in advance of the
trial may be ordered.
At the end under the caption 'Order' it has been mentioned thus:
Order. It has been held to be within the court's discretion to defer ruling on
the application for production of books and records, until their materiality
and the necessity for their use should be shown. A conditional order for
production is not improper. Thus an order requiring defendant to file the
document involved if it can be found by him is proper, since its performance
is reasonably limited to the possibility of his production of the paper after de
diligence. Where plaintiff is seeking relief in the nature of discovery by
inspection of defendant's mine in order to enable plaintiff to elect his
remedy, details of the performance and supervision of such discovery can be
provided for in the decree, and, if discovery proves unreasonably
burdensome to defendant, work may be required to be performed by plaintiff
at defendant's expense.
Disobedience of order. A court of equity, having jurisdiction to order
discovery in aid of an action at law by the production of books and papers,
has power to punish disobedience of such an order by commitment for
contempt.
Use of disclosures as evidence. The primary object of the proceeding being
to secure the document for use in evidence, neither the proceeding by which
such production is sought, nor the recitals in the order granting the
application are per se admissible in evidence.
[Emphasis is mine]
18. As against these procedural provisions let us see principles contained in various
provisions of the Act. Section 162 of the Act deals with production of documents and
it reads as under:
Section 162. Production of documents - A witness summoned to produce a
document shall, if it is in his possession or power, bring it to Court,
notwithstanding any objection which there maybe to its production or to its
admissibility. The validity of any such objection shall be decided on by the
Court.

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 The Court, if it sees fit, may inspect the document, unless it refers to matters
of State, or take other evidence to enable it to determine on its admissibility.
Section 163, however, deals with giving in evidence the document called for and
produced on notice and it reads as under:
Section 163. Giving, as evidence, of document called for and produced on
notice.- When a party calls for a document which he has given the other
party notice to produce, and such document is produced and inspected by
the party calling for its production, he is bound to give it as evidence if the
party producing it requires him to do so.
19. The rationale behind the Section seems to be that it would be manifestly unjust
and unfair to permit one to gain an undue advantage by looking into the documents
of his opponent without being obliged to use it as evidence for both of them. Under
the pretext of a desire to use in evidence, a party might call for documents the
contents of which were not known to him and finding that they did not suit his
purpose or went against him, he might wriggle out of the situation by discarding
them. It maybe urged that such a rule is not consistent with the party's right to
obtain discovery and inspection. Section 163 does not refer to documents produced
in obedience to the order of Court under Order 11 Rule 14 of the Code.
20. The notice envisaged in Section 163 is a notice to be given under Section 66 of
the Act. Such notice shall be given either to the party or to his counsel in the form as
is prescribed by law and if no notice is prescribed by law, in the form as the Court
considers reasonable. That notice requires the party to produce the document which
is in his possession or power. If the party fails to produce the document despite the
notice, the party at whose instance the notice has been issued is entitled to adduce
secondary evidence of the contents of the document. The prerequisite for issuing
such notice seems to be that the party must have possession of the document. Such
notice is not necessary to lead secondary evidence in Exceptions 1 to 6 mentioned
inter alia in the proviso to Section 66 of the Act. It is apt here to consider the
provisions of Order 11, Rule 16 of the Code. Although, as discussed hereinabove, the
provision refers to the documents mentioned inter alia in the plaint or the affidavit.
They can be asked to be produced by issuing a notice to the party. If the document is
in possession and custody of the stranger, summons can be sought to be issued as
per Order 16, Rule 6 of the Code. The failure to produce documents pursuant thereto,
entails penal consequences as per Rule 21.
2 1 . Section 164 of the Act takes care of the situation when the party refuses to
produce and it reads as under:
Section 164. Using, as evidence, of document production of which was
refused on notice. When a party refuses to produce a document which he has
had notice to produce, he cannot afterwards use the document as evidence
without the consent of the other party or the order of the Court.
22. Section 165 is the other relevant provision in the context and it reads as under:
Section 165. Judge's power to put questions or order production. The Judge
may, in order to discover or to obtain proper proof of relevant facts, ask any
question he pleases in any form, at any time, of any witness, or of the
parties, about any fact relevant or irrelevant; and may order the production
of any document or thing; and neither the parties nor their agents shall be
entitled to make any objection to any such question or order, nor, without
the leave of the Court, to cross-examine any witness upon any answer given

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 in reply to any such question:
Provided that the judgment must be based upon facts declared by this Act to
be relevant, and duly proved:
Provided also that this section shall not authorize any Judge to compel any
witness to answer any question, or to produce any document which such
witness would be entitled to refuse to answer or produce under Sections 121
- 131, both inclusive, if the question were asked or the document were called
for by the adverse party; nor shall the Judge ask any question which it would
be improper for any other person to ask under Section 148 or 149; nor shall
be dispense with primary evidence of any document, except in the cases
hereinbefore excepted.
23. A careful perusal of the said provision shows that the Judge may in order to
discover or to obtain proper proof of relevant facts may order the production of any
document or thing and neither the parties nor their agents were entitled to make such
an objection to any such order. The discovery envisaged under this Section is to
discover the truth unlike the discovery envisaged under the provisions of Order 11 of
the Code, where it is to shorten the litigation. Thus, a distinction can be drawn in the
procedural provisions contained in Order 11 of the Code and the Rules of evidence
contained in Sections 162 - 165 of the Act.
24. Section 165, therefore, intended to arm Judges with a general power to ask any
question, in any form, at any time, of any witness or parties about any fact relevant
or irrelevant. The position of a Judge is not that of a moderator between contestants
in a game with no inclination to interfere till the violation of its rules. He has a much
higher duty to perform. He has to see not only that the proceedings are conducted
strictly according to law, but to administer justice and to find out the truth. He must,
therefore play an affective part and it is not only his right but it is his duty to ask the
witness any question in any manner, the answer to which in his opinion would aid in
the discovery of truth. So whenever the judge finds that the examination has not
been conducted in a way as to unfold the truth or that obscurities in the evidence
should be made clear and intelligible, it is not only his right nay his duty to probe
further into matters that he deems important by his own questions. An unbridled
power thus has been vested in the Court so as to ascertain the truth notwithstanding
the fact that the parties do not propose to have such discovery. However, that
unbridled power even has certain limitations. The party can object for the production
of the documents claiming privilege.
25. Although Sections 162 - 165 referred to hereinabove come within the domain of
the Chapter 10 of the Act dealing with the examination of witnesses the provisions
equally apply to the parties.
26. The failure to produce documents pursuant to the notice issued under Section
66, prevents the party afterwards from using the document as evidence without the
consent of the other party or the order of the Court. Under Section 89 of the Act, the
Court shall presume that every document called for but not produced after notice to
produce, was attested, stamped and executed in the manner required by law. If the
document in possession is not produced after notice, there is a presumption under
Section 114 illustration (g) that the evidence if produced would have been
unfavourable to the person who withholds it.
27. It appears that the rules pertaining to production of documents as envisaged in
the provisions of the Code and the rules pertaining to production of documents as
envisaged in the Act may appear to be overlapping. But, once we consider the object

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 behind such rules, as discussed hereinabove, there appears to be a distinction in
between them although thin but appears to be real.
28. Turning to the law on the point in Brooks and Anr. v. Prescott and Ors. 1948 All
E.L.R. 907 the Court of Appeal held thus:
The defendants were entitled to resist the application for their production,
since the plaintiffs were not entitled to the production of documents which
related solely to the defendants' case and did not support the plaintiffs' case,
and this privilege was not confined to documents which were admissible in
evidence.
2 9 . In State of Punjab v. S.S. Singh MANU/SC/0006/1960 : [1961]2SCR371 the
Constitution Bench of the Apex Court in para 44 held thus:
The procedural law in regard to discovery, production and inspection of
documents is contained in Order 11, Rule 12, 21. It is true that Order 11,
Rule 19, Sub-rule (2) provides that in dealing with a claim of privilege "it
shall be lawful for the Court to inspect the document for the purpose of
deciding the validity of the claim of privilege". The question is, what is the
effect of this provision when it is considered along with Section 162 of the
Evidence Act?
Ultimately at the end of para 48, the Apex Court held thus:
This shows that where the State is a party a summons may have to be issued
to its appropriate officer calling upon him to produce the documents for
inspection. The provisions of Rules 14, 15 and 16 of Order 11 show that
affidavits have to be filed by the parties, and the filing of affidavits which is
permitted by Order 19 is undoubtedly one mode of giving evidence. Order
16, Rule 1 provides for the issue of a summons to persons whose attendance
is required inter alia to produce documents; and Rule 21 of the said order
expressly provides that where any party to suit is required to give evidence
or to produce a document the provisions as to witnesses shall apply to him
so far as are applicable. Thus there can be little doubt that where a privilege
is claimed at the stage of inspection and the Court is required to adjudicate
upon its validity, the relevant provisions of the Act under which the privilege
is claimed as well as the provisions of Section 162 which deal with the
manner in which the said privilege has to be considered are equally
applicable; and if the Court is precluded from inspecting the privileged
document under the second clause of Section 162 the said prohibition would
apply as much to a privilege claimed by the State through its witness at the
trial as a privilege similarly claimed by it at the stage of inspection. It is
hardly necessary to point out that a contrary view would lead to this
manifestly unreasonable result that at the stage of inspection the document
can be inspected by the Court, but not at the subsequent stage of trial. In our
opinion, the provisions of Order 11, Rule 19, Sub-rule (2) must, therefore,
be read subject to Section 162 of the Act.
3 0 . The Apex Court seems to have clearly drawn the distinction between the
production of the documents at the stage of Inspection and at the stage of trial and
held, however, that the provisions of Section 162 would apply even at the stage of
inspection i.e., at the stage of discovery by documents.
3 1 . M.L. Sethi v. R.P. Kaput MANU/SC/0245/1972 : [1973]1SCR697 was a case
where a suit was sought to be filed in forma pauperist or recovery of damages to the

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 tune of Rs. 7,48,0007- for malicious prosecution. The State as well as the party to
the suit filed objections stating that the plaintiff was not a pauper. To prove the said
fact that the plaintiff was not a pauper, the defendant filed an application for
discovery of documents from the respondent-plaintiff. The Court directed the plaintiff
to discover on affidavit, the documents relating to the bank accounts of the
respondent viz., pass book, cheque books, counterfoils, etc., and also the documents
in respect of the properties held by him and the personal accounts maintained by
him. The respondent who was to file an affidavit of discovery, did not file the
affidavit in pursuance of the order of the Court. However, he moved an application
before the Court that he wanted to file a revision against the order directing him to
discover documents requesting time. Time was refused. The Court eventually
dismissed his application seeking leave to sue as pauper. That order was challenged
along with the order directing discovery of documents before the High Court. The
High Court held that in an application under Order 33 which is summary in nature,
the sophisticated procedure for discovery should not have been resorted to. In the
appeal filed before the Supreme Court it was held in para 5 thus:
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 opposition 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?
The Court while dealing with the provisions of Order 11, Rule 12 held thus:
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.
32. The Apex Court also held that the documents sought to be discovered need not
be admissible in evidence in the enquiry of the proceedings and it is sufficient that
the documents would be relevant for the purpose of throwing light on the matter in
controversy.
33. Sasanagouda v. S.B. Amarkhed MANU/SC/0217/1992 : AIR1992SC1163 was a
case of election petition. The election of the elected candidate was challenged on the
grounds of alleged corrupt practices by indulging in booth capturing and rigging of
booths. A petition in I. A. No. 5 of 1991 under Order 11, Rule 14 was filed by the
election petitioner requesting the seventh respondent-election officer to produce
certain documents enumerated therein. The High Court by its order dated 25-11 -

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 1991 allowed the petition and summoned the documents. Accordingly documents
were produced in Court. It was sought to be contended that no sufficient foundation
was laid in election petition with material particulars of the alleged capturing of
booths and rigging and, therefore, no case was made out for opening the ballot
boxes and examining the used ballots. It was only to fill the gaps and to make roving
enquiry to fish out grounds to set aside the election, the petition was filed to
summon the documents. It was held in para 7 thus:
The Court, therefore, is clearly empowered and it shall be lawful for it to
order the production, by any party to the suit, such documents in his
possession or power relate to any matter in question in the suit provided the
Court shall think right that the production of the documents are necessary to
decide the matter in question. The Court also has been given power to deal
with the documents when produced in such manner as shall appear just.
Therefore, the power to order production of documents is coupled with
discretion to examine the expediency, justness and the relevancy of the
documents to the matter in question. These are relevant considerations,
which the Court shall have to advert to and weigh before deciding to
summoning the documents in possession of the party to the election petition.
The Apex Court, however, did not consider its earlier two Judgments; one rendered
by a Constitution Bench.
34. In Gopal Krishnaji v. Mohd. Haji Latif MANU/SC/0168/1969 : [1968]3SCR862 , a
three Judge Bench of the Apex Court, while dealing with the question of burden,
quoted with approval the Judgment of the Privy Council in Murugesam Filial v. Gnana
Sambandha Pandara Sannadi MANU/PR/0053/1916 : AIR 1917 PC 6 at 8 and it is
thus:
A practice has grown up in Indian procedure of those in possession of
important documents or information lying by, trusting to the abstract
doctrine of the onus of proof, and failing, accordingly, to furnish to the
Courts the best material for its decision. With regard to third parties, this
may be right enough - they have no responsibility for the conduct of the suit;
but with regard to the parties to the suit it is, in Their Lordship opinion, an
inversion of sound practice for those desiring to rely upon a certain state of
facts to withhold from the Court the written evidence in their possession
which would be row light upon the proposition.
The Apex Court held ultimately that it is for the party in whose custody the best
evidence is, to produce the document notwithstanding the question of burden
whether it is on him or on the adversary.
35. In Krishna Rao v. State of Andhra MANU/AP/0067/1962 : AIR1962AP249 a Bench
of this Court held in para 4 thus:
A plain reading of Order XI, Rule 21 shows that the Court could have invoked
the penal provisions of that rule only if there had been an order to answer
interrogatories or for discovery or for inspection of documents under Rules
11, 12 and 18 of Order XI. The plaintiff did not apply under any of the
provisions of Order XI at all. He merely gave a notice to produce under Order
XII, Rule 8. If there was default on the part of the defendant, the plaintiff's
notice enabled him to adduce secondary evidence of the contents of the
documents under Section 65, Clause (a) of he Evidence Act. It is not even
suggested that the plaintiff sought to let in secondary evidence of these
documents and that such evidence was shut out. If follows that nothing turns

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 on the partial non-compliance on the part of the defendant with the plaintiff's
notice under Order XII Rule 8.
36. In Gobinda Mohun v. Magneram Bangur & Co. MANU/WB/0025/1940. It was held
thus:
Rule 12 of Order 11 is considerably wider than Order 13, Rule 1 of the Code.
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.
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. If an order for discovery is made
under Order 11, Rule 12 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 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 or to give inspection of them under Order 11, Rule 18.
37. In Indian Foils Ltd. v. 5th Industrial Tribunal AIR 1872 Cal 308 it was held thus:
The Court has got ample powers to make an order for production of a
document at any time during the pendency of the suit. But before such an
order can be made the Court must satisfy itself and record a finding to the
effect that the documents are in the possession or power of the party against
whom the order is sought and they relate to the matter in question before the
Court. An order made without such satisfaction is without jurisdiction and is
liable to be set aside.
3 8 . The Caluctta High Court sought to distinguish the Judgment of the A.P. High
Court in P. Varalakshmamma v. P. Bala Subrarmanyam 1958 (2) An.W.R. 246 :
MANU/AP/0139/1957 : AIR 1958 A.P. 157 wherein it was held thus:
It is lawful for the Court, under Order 11, Rule 14, Civil P.C., at any time
during the pendency of any suit to order the production of a document. The
words "at any time" are very significant and important. Rule 14 does not
require that the order for production should be made only after an order of
discovery is obtained under Order 11 Rule 12 C.P.C.
39. Sri Seshadri Naidu, learned Counsel appearing for the plaintiffs, seeks to place
reliance upon certain passages in Corpus Juris Secundum. In para 1026 under the
caption "evidence" it was held thus:
A corporation may be required to produce its books and papers where it is a
party to an action. Under a statute to that effect, the courts may order the
production of books and papers belonging to, or in possession of, a stranger,
as well as those belonging to, or in possession of, a party.
The court is empowered to require the production of any paper by a party
who is present in court and who has possession thereof, if material to the
case, and has the power to require, and should require, the production of

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 any pertinent documentary evidence which may illustrate the issue and which
is within the power or custody of any person then personally in court.
In para 1028 it was mentioned thus:
A notice to produce is ordinarily a prerequisite to an order compelling the
production of documents, but not when they are in court. Among other
requirements, the notice should clearly identify the desired documents and
should give a reasonable time for their production.
In para 1034 it was dealt as under:
Under various statues, failure to produce documents pursuant to order may
result in the entry of judgment against the defaulting party, acceptance as
true of the facts intended to be proved, the presumption that the document
would be as described, or the entitlement of the party procuring the order to
give secondary evidence of the contents of the documents.
40. From the above discussion it appears that the rules of procedure envisaged under
Order 11 of the Code and the rules of evidence contained in Chapter 10 of the Act
operate in different spheres. They may appear to be analogous in certain areas, but
the purpose or object behind these provisions would clearly tell us that the former
rules are meant to shorten the litigation at the initial stage before the trial and the
latter rules of evidence are meant to discover the truth at the stage of trial or giving
evidence. Not only that discovery of facts or discovery of documents can be allowed
only with the leave of the court, discovery by means of Interrogatories can be
objected on the ground that It Is scandalous, Irrelevant, mala fide and on the ground
of privilege. The answer to the interrogatory shall be by means of an affidavit.
Similarly, discovery of documents can be objected on the ground of legal or
professional privilege; that they may tend to criminate a party or expose him to
forfeiture; that they are protected by public policy; that they are not in the sole
possession of the party; that they solely relate to the case of the party; that they are
in the possession of the party as an agent or a representative of another; and that
they disclose evidence of party's own case. Again the discovery of documents shall
be made upon oath. Non-compliance with the order of discovery of documents entails
if it is by the plaintiff the dismissal of his suit and if it is by the defendant the striking
down of his defence, whereas, under the rules of evidence a notice is envisaged to be
given to the adversary by the party requiring the production of the documents or if it
is a case of a witness summons to be issued to produce a document into the Court
and upon the production of the document either by the party or by the witness a
party who has called for the document is bound to give it as evidence when the
opposite party requires him to do so. And if the party who is required to produce a
document fails to produce a document upon receiving notice, he cannot use the
document as evidence without the consent of the other party or order of the Court at
a later stage and it is open to the party to lead secondary evidence of the document
required and for the Court to draw adverse inference as per the provisions contained
in illustration (g) to Section 114 of the Act. No penal consequences are envisaged
under the provisions of the Act. The document sought to be discovered need not be
admissible in evidence in the enquiry of the proceedings and it is sufficient that the
document would be relevant for the purpose of throwing light on the matter in
controversy, unlike in the case where the documents are sought to be introduced in
evidence not only they shall be relevant but also they shall be admissible in evidence
and shall be proved. The above distinguishing factors clearly show the difference
between the discovery of fact or documents and production of documents under the
provisions of the Act.

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 41. The learned Counsel for the first defendant while seeking to contend that the first
defendant cannot be compelled to produce income tax returns seeks to place reliance
upon the judgment of the Madras High Court in Nagammai Achi v. Alamelu Achi
MANU/TN/0183/1957 : AIR 1957 Mad 401 wherein it was held thus:
The declaration contained in Section 54 is intended for the benefit of the
assessee to enable him to make a full and true disclosure, and it is open to
him to waive that advantage, but he cannot be compelled to waive that
advantage and produce the documents into Court.
The Court is prohibited from ordering a plaintiff or a defendant to produce
his original income tax returns equally as it cannot order the income tax
officers themselves to produce them and to direct that a litigant should
produce a certified copy of his return would render Section 54 of the Income
Tax Act, in some respects a dead letter.
Hence, an order under Order 11, Rule 14, Civil P.C. refusing to direct the
plaintiff to produce certain documents declared to be confidential is perfectly
valid and correct.
42. Having regard to the view taken by me hereinabove, the individual parties cannot
be compelled to produce the documents if they refuse to produce the documents
pursuant to the notice served upon him by the adversary or an order as a matter of
that passed by the Court so as to ascertain the truth in accordance with the
provisions contained in Section 165 of the Act for non-compliance of such a direction
to produce the documents the penal consequences will not follow as in the case of
discovery of documents as per the provisions contained in Order 11, Rule 21 of the
Code. However, certainly the Court is entitled to draw the adverse inference.
43. In Gopal Krishnaji's case (referred to 5 supra) a three Judge Bench of the Apex
Court held in para 5 at page 1416 as under:
Even if the burden of proof does not lie on a party the Court may draw an
adverse inference if he withholds important documents in his possession
which can throw light on the facts at issue. It is not, in our opinion, a sound
practice for those desiring to rely upon a certain state of facts to withhold
from the Court the best evidence which is in their possession which could
throw light upon the issues in controversy and to rely upon the abstract
doctrine of onus of proof.
4 4 . In Agarchand v. Deochand MANU/AP/0116/1960 : AIR1960AP101 it was held
thus:
In order to raise the presumption under Section 114(g) of the Evidence Act,
it was not necessary to follow the procedure of giving a notice for the
production of documents under Order XI C.P.C., or to summon the
documents under Order XVI C.P.C. The only important condition laid down is
that the party should prove that the document is in existence and is in the
possession or custody of the party against whom the adverse inference is
sought to be drawn.
4 5 . Therefore, it is always open to the Court wherever necessary when the fact
situation warrants to draw the necessary adverse inference for the non-production of
the documents relevant to the matter in controversy, notwithstanding the fact that the
burden is upon a particular party in whose custody the documents are in existence
and there is no need to discover the documents.

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 46. Turning to the matrix of the instant case, it is discernible from the affidavit filed
in support of the petition that a notice was served upon the counsel for the
defendants requiring to produce the relevant records as enumerated in detail therein
and when pursuant to the said notice the defendants failed to produce the
documents, the plaintiff filed a petition under Order 11, Rule 14 of the Code to direct
the first defendant to produce their income tax returns for the period 1995-96 to
2001-2002 along with admitted balance sheet, profit and loss account, and details of
capital accounts along with the statement of bank account of Aar Bee Enterprises for
the period 1995-96 to 2001-2002 bearing Current A/c No. 3434, OD A/c Nos. 6125
and 6187 with Vijaya Bank, Bank Street, Hyderabad and also Current A/c. No. 3583
with A.P. Mahesh Co-operative Urban Bank Limited, Sultan Bazaar, Hyderabad.
Having regard to the reasons mentioned hereinabove, the application filed under
Order 11, Rule 14 of the Code is misconceived and is not tenable. It is nobody's case
that the plaintiffs are seeking discovery and inspection at this stage. Some of the
documents, which the plaintiffs want the first defendant to produce before the Court,
are obviously, having been filed in I.A. No. 109/2004, available on the file of the
Court and the remaining documents are in possession of the first defendant as per
the plaintiffs' case. Insofar as the documents which are in the custody of the Court in
connection with a different proceeding, Rule 10 of Order 13 of the Code envisages
that the Court may on its own motion or on the application filed by the parties to a
suit, sent for those documents which are on its own file or from any other Court and
inspect the same. If the parties require the same, they can obtain certified copies of
those documents and file them before the Court during the course of enquiry or trial
while leading evidence. If the documents are not in the custody of the Court and are
in the possession of the parties to the suit, it is open to the opposite party to issue
notice as envisaged under the principles of evidence and request the opposite party
to produce those documents before the Court. Non-production thereof pursuant to the
notice will entail the necessary consequences as can be seen from the provisions of
the Act, as discussed hereinabove. If the documents are public documents and are in
the custody and possession of the public servants who are empowered to grant
certified copies thereof, it shall be the endeavour of the party who require them to
obtain certified copies whereof in the first instance and produce the same before the
Court. If for any reason, certified copies could not be issued, it is open to the party
to approach the Court and request it to send for those documents from the
possession of the public servant. Rule 128 and 129 of the Civil Rules of Practice
clearly envisage the practice in such cases. When that be the procedure to be
followed, filing an application under Order 11, Rule 14 of the Code seeking a
direction to be issued to the adversary for production of such documents is not the
correct approach. Obviously, the application in this case has been filed under Order
11, Rule 14 and the Court below directed the first defendant to produce some of the
documents while dismissing the application filed by the plaintiff in respect of the
other documents. Such a direction is not required as can be seen from the practice
prevailing before the Courts of law and the legal position as discussed hereinabove.
47. Having held that the bank accounts are relevant, the Court below should have
sent for those documents if they are available in connection with I.A. No. 109/2004
instead of directing the defendants to produce the bank statements and other
accounts required. The defendants cannot produce those documents since they are
now in the custody of the Court in connection with I.A. No. 109/2004. If I.A. No.
109/2004 is a different proceeding, the party who is seeking the production of those
documents as well can obtain certified copies or file an application to send for those
documents in accordance with the practice envisaged in Rules 128 and 129 of the
Civil Rules of Practice.
48. Insofar as the income tax returns of the first defendant are concerned, there has

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 been a prohibition contained in the provisions of the Income Tax Act for producing
those documents by the Department. The proper procedure in such cases seems to be
to issue notice to be first defendant to file the income tax returns and if the first
defendant fails to file them, the plaintiffs can either lead secondary evidence by
obtaining the certified copies thereof from the Department if granted or request the
Court to draw the necessary adverse inference for non-production of the documents
by the first defendant despite the notice. It is not the case of any discovery as
regards the existence of the documents and the need to inspect those documents so
as to shorten the litigation. It is a matter where trial process was on and has been
going on. For the above reasons, that part of the impugned order allowing the
petition in part directing the first defendant to produce the bank statements,
accounts, etc. is liable to be set aside. Dismissal of the petition insofar as the income
tax returns are concerned, cannot be found fault with for the reasons hereinabove
discussed, but that will not preclude the plaintiffs to follow the procedure envisaged
as per the provisions contained in Sections 66 and 162 - 165 of the Act.
49. For the above reasons, the Civil Revision Petition No. 608 of 2005 is allowed at
the threshold and the impugned order to the extent directing the first defendant to
produce bank statements etc. is hereby set aside. The Civil Revision Petition No. 331
of 2005 is dismissed at the threshold. However, it will not preclude the plaintiffs from
following the procedure as discussed hereinabove. Under the circumstances, I direct
both the parties to bear their respective costs.

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