Chapter-7 (Cont.

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Non-compliance with Order for Discovery or Inspection
• The party not complying with the notice to produce the documents will not be able to put
any such documents in evidence, on his behalf in such suit.
• The consequences of non-compliance with the order to answer interrogatories, for
discovery or inspection of documents have been dealt with under O XI, rule 21 the Code,
which provides that if the non-compliance of such an order is on the part of the plaintiff,
his suit is liable to be dismissed and if the non-compliance of such order is on the part of
the defendant, his defence is liable to be struck off.
• The power to dismiss the suit or strike out the defence can be exercised either suo motu
or upon application of any party.
• D Ram Mohan Rao V. Sridevi Hotels Pvt Ltd, 2003
o Where the defendant does not care to comply with the orders of the court and in
a way ignores the orders, his defence can be struck off.
• Shardamma Kaveri v. Sharad G Jadav, 2005
o The defence would not be struck off merely because the defendant has not
responded to the notice to produce the documents.
• The power must be exercised only where the defaulting party fails to attend the hearing
or is guilty of prolonged or inordinate or inexcusable delay which may cause substantial
or serious prejudice to the opposite party.
• The sine qua non for exercising the power order rule 21 is failure to answer the
interrogatories, order of discovery or inspection of documents.
• Archdiocese of Bhopal v. Hasan Kabir, 2009
o The suit cannot be dismissed under O XI, rule 21 for non-compliance of rule 14
which is with respect to production of documents.
• Where a suit has been dismissed under rule 21, the plaintiff shall be precluded from
bringing a fresh suit on the same cause of action.
• Babbar Sewing Machine Co v. Trilok Nath Mahajan, 1978
o A drastic power is conferred under this rule and it is quite essential that it must be
sparingly used. A suit or defence cannot be lightly thrown out. The default must
be willful. There must be obstinacy or contumacy in disregarding the order of the
court. Such power must be exercised as a matter of last resort when faced with
willful and deliberate disregard of the order of the court.

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Notice to Admit Facts or Documents
• Nagindas Ramdas v Dalpatram Iccharam, AIR 1974
o Fasts admitted by the parties to a suit need not be proved. Admission in the
pleadings or judicial admissions made by the parties, at or before the hearing of
the case, stand on a higher footing than evidentiary admissions and are binding
on the party making them and constitute waiver of proof.
• Admissions are not conclusive and a gratuitous or erroneous admission can be withdrawn.
• Further, admissions are to be taken in entirety.
• Admissions need not be made expressly in the pleadings and the court can proceed even
on constructive admissions. Admissions can be de hors (outside) the pleadings and need
not necessarily be contained in the pleadings. And such admissions can be oral or in
writing.
• Order XII, rules 2-5 of the Code provide that after discovery is made and inspection taken,
the next step to be taken is to call upon the adversary, by notice in writing, to admit within
seven days of the date of service of the notice, the genuineness of documents which one
wants to use at the hearing, and to admit facts constituting evidence of the case.
• If no such admission is made by the adversary where it ought to have been made, he will
be liable to pay the costs of proving the documents and facts.
• By virtue of O XIII, rule 3A, the court may, at any stage of the proceedings, without any
notice to admit documents being given by the other party, of its own motion call upon a
party to admit a document and record whether that party admits, refuses or neglects to
admit that document.
• If the documents are not denied specifically or by necessary implication or stated to be
not admitted, they are deemed to be admitted unless the court insists upon their formal
proof independently.
• Therefore, every notice for admission of documents must be carefully replied and denied
or not admitted. failing which the court may treat them as admitted, dispensing with their
formal proof.
• A notice in writing calling upon the other party to admit facts can also be served at any
time no later than nine days before the hearing, and if the other party refuses or neglects
to admit such facts within six days of service of such notice, the costs of proving those
facts shall be paid by the party so refusing or neglecting.
• An admission made in pursuance of the notice shall be only for the purposes of that
particular suit (O XII, rule 4).
• Where admissions of facts are made, the court is empowered to make order or give
judgment having due regard to admissions made.

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• Such admissions may be oral or written.
• For such order or judgment, it is not necessary to wait for determination of other disputed
matters.
• The object behind the rule is laudable. The court should be able to make an order at least
where there are no disputes between the parties. It need not wait till other disputed
matters are resolved or adjudicated.

• Razia Begum v Anwar Begum, 1958

o However, judgment on admissions cannot be claimed as a matter of right and
depends on the discretion of the court, which must be satisfied that the admission
relied upon is clear, definite and unequivocal.
• It is well settled that an admission must be taken as whole or not at all.
• Uttam Singh Duggal & Co Ltd v United Bank of India, 2000
o Where one portion of the claim was admitted and the other portion was denied,
and both the portions were severable, the plaintiff could ask for a judgment on
the portion admitted by the defendant.
• Jeevan Diesels & Electricals Ltd v Jasbir Singh Chadha, 2010
o Whether there is a clear admission or not, cannot be decided on the basis of
judicial precedents. The decision of the question depends on the facts of the case.
• Judgment on admissions can be passed by the court on its own motion without an
application made by a party or on the application of any party.
• The judgment on admission can be passed even after issues have been framed, and even
at the stage of final arguments.
• The power to give judgment under this rule is discretionary and enabling in nature and
the party cannot claim it as of right.
• Provisions of O XII rule 6 are not mandatory rather discretionary.
• Nagubai Ammal v. B Shama Rao, 1956
o "An admission is not conclusive as to the truth of the matter stated therein. It is
only a piece of evidence, the weight to be attached to such admission should
depend upon circumstances under which it was made. It can be shown to be
erroneous or untrue.

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Summoning of Witnesses
• Rule 1 of Order XVI provides for presenting a list of witnesses proposed to be called by a
party and obtaining summonses to such persons on or before the day appointed by the
court, which must not be later than 15 days after the date on which issues are settled.
• If the party failed to obtain the summonses through court for attendance witnesses, they
are at liberty to have the witness brought without the assistance of the court under rule
1A of Order XVI.
• In order to issue a summons to a witness to adduce evidence or to produce documents in
court, the parties to the suit must present a list of witnesses of whom they propose to call
as witnesses, not later than 15 days from the date of settlement of issues.
• N Balraju v. G Vidyadhar, 2004
o The court may, in appropriate cases, condone the delay and receive the list even
after 15 days.
• To ensure the attendance of a witness, either party may apply to the court for issuing
summons upon them; stating in such application the purpose for which the witness is
proposed to be summoned.
• Summons shall be issued by the court only in respect of the witness whose names appear
in the list of witnesses.
• The court, in its discretion, may permit a party to summon any witness, other than those
whose names appear in the list of witnesses on sufficient cause for omission of name of
such witness, shown.
• A person may be summoned to produce a document without being summoned to give
evidence and any person summoned merely to produce a document will be deemed to
have complied with the summons if he causes the document required to be produced in
the court.
• A person is entitled to apply to the court for a witness-summons (or subpoena), at any
time after the institution of the suit. It does not matter at what stage of the suit it is
applied for.
• It may be applied for even after the hearing has commenced and the court has no power
of refusal to issue it. The only case in which it may be refused is when the application is
not made bona fide, where the person knows that the opposite party is not going to come
into court on sentimental grounds, and yet proposes to call the opposite party as his own
witness to put pressure upon him.
• To issue the summons in such a case would amount to an abuse of the process of the
court and the court may refuse it under its inherent powers as specified under section
151.

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• A summons to a witness is to be served as nearly as may be in the same manner, as a
summons to a defendant.
• If the witness fails to attend, the court may issue a proclamation requiring him to attend
and may at the same time issue a warrant for his arrest and make an order for the
attachment of his property.
• If the witness then appears and satisfies the court that there was sufficient cause for his
non-appearance, the court may order the property to be released from attachment.
• However, if he does not appear or appears but fails to satisfy the court, the court may
impose upon him a fine not exceeding Rs 500, and may order the property attached to be
sold for the payment of the amount of the fine.
• It is the duty of the court to enforce attendance of witnesses summoned by the parties.
• National Rice & Dal Mills v. Food Corporation of India, 1972
o These coercive provisions are essential and have been enacted with a purposeful
eye, because the consenting parties in a suit usually have no control over
witnesses who may be required to give evidence.
• It should not, however be forgotten that a party runs a serious risk by invoking coercive
machinery for compelling his witnesses to remain present. It is quite likely that on account
of such process being issued, he may turn hostile and may not support the case of the
party at whose instance he is called as witness.
• Dwarka Prasad Bai v. Rajkunwar Bai, 1976
o Since the provisions of rule 10 are penal in nature, the procedure laid down
therein must be strictly followed. 54