require the plaintiff to produce documents after the defendant had answered.

A judge has no discretion to refuse an order for production, except upon the settled grounds of privilege. (Bustros v. White, L. R., I. Q. B. D. (C. A.) 422; 45 L. J., Q. B.. 642; 34 L. T., 835; 24 W. R., 721.

A plaintiff will not usually be entitled to production before statement of claim is delivered. Cashin v. Cradock, L. R., 2 Ch. D., 140; 34 L. T., 52.)

131. Every party Notice to produce for inspection documents referred to in plaint, &c.

to a suit may at any time before or at the hearing thereof give notice through the Court to any other party in whose plaint, written statement or affidavits reference is made to any document, to produce such document in the presence of such officer as the Court appoints in this behalf, for the inspection of the party giving such notice or of his pleader, and to permit such party or pleader to take copies thereof.

No party failing to Consequence of noncompliance with such

notice.

comply with such notice shall afterwards be at liberty to put any such document in evidence on his behalf in such suit, unless he satisfies the Court that such document relates only to his own title, or that he had some other and sufficient cause for not complying with such notice.

A form of notice is given in the Fourth Schedule.

Unless he satisfies the Court, &c.-See the head-notes to the Chapter, and the notes to Sec. 129.

132. The party to Party receiving such notice to deliver notice when, and where inspection may be had.

whom such notice is given shall, within ten days from the receipt thereof, deliver through the Court to the party giving the same a notice stating a time within three days from such delivery at which the documents or such of them as he does not object to produce, may be inspected at his pleader's office or some other convenient place, and stating which, if any, of the documents he objects to produce, and on what grounds.

On what grounds.-See the notes to Sec. 129.

133. If any party Application for order of inspection.

served with notice under Sec. 131 omits to give notice under Sec. 132 of the time for inspection, or objects to give inspection, or names an inconvenient place for inspection, the party desiring it may apply to the Court for an order of inspection.

134. Except in the case of documents referred to in the plaint, written Application to be statement, or affidavit of the party against whom the founded on affidavit. application is made, or disclosed in his affidavit of documents, such application may be founded upon an affidavit shewing (a) of what documents inspection is sought, (b) that the party applying is entitled to inspect them, and (c) that they are in the possession or power of the party against whom the application is made.

In England: It has been doubted whether the court has now any discretion in cases where equity would have given discovery. English v. Tottie, L. R., 1 Q. B., 141; 45 L. J., Q. B., 138.

Power to order issue or question on which right to discovery depends to be first determined.

135. If the party from whom discovery of any kind or inspection is if the Court is satisfied that the right to such dissought, objects to the same or any part thereof, and covery or inspection depends on the determination of any issue or question in dispute in the suit, or that for other reason it is desirable that any such issue or question should be determined before deciding upon the right to the discovery or inspection, the Court may order that the issue or question be determined first and reserve the question as to the discovery or inspection.

any

This was done in Wood v. The Anglo-Italian Bank, 34 L. T., 255.

136. If any party fail to comply with any order under this chapter to answer interrogatories or for discovery or inspection, Consequences of failwhich has been duly served, he shall, if a plaintiff, be ure to answer or give liable to have his suit dismissed for want of inspection. tion, and if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not appeared and answered;

prosecu

and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect, and the Court may make such order accordingly.

Any party failing to comply with any order under this chapter to answer interrogatories or for discovery or inspection which has been served personally upon him, shall also be deemed guilty of an offence under Sec. 188 of the Indian Penal Code.

The English Rule provides for the attachment of the disobedient person for contempt, and following that the revisors of the Code have made him punishable for an offence under the Indian Penal Code.

The special power of dismissal or striking out given by this rule ought not to be exercised except in the last resort. Per Lush, J., at Chambers, Bitt. p. 13.

With any order.-Under Sec. 127, 129 or 133. It will be remembered that no 'order' is made under Sec. 121.

Unless "production" in Sec. 130 means what " production upon oath" is supposed to mean in the English Rule, namely discovery on oath and production, disobedience of an order to produce documents will not make a party obnoxious to punishment with reference to this section

Court may send for papers from its own records or from other Courts.

137. The Court may, of its own accord, and may, in its discretion, upon the application of any of the parties to a suit, send for, either from its own records or from any other Court, the record of any other suit or proceeding, and inspect the same.

Every application made under this section shall (unless the Court otherwise directs) be supported by an affidavit of the applicant or his pleader, showing how the record is material to the suit in which the application is made, and that the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of the record or of such portion thereof as the applicant requires, or that the production of the original is necessary for the purposes of justice.

Nothing contained in this section shall be deemed to enable the Court to use in evidence any document which under the Indian Evidence Act would be inadmissible in the suit.

The old Sec. 138 has been considerably altered, and the last paragraph of the new section needs careful attention.

It is stated in the Report of the Select Committee of the 21st September 1876:-"The power which the courts now possess under Act VIII of 1859, Sec. 138, of sending for papers from non-judicial public offices has, we find, been abused. We have therefore withdrawn this power, and persons applying to the court to send for papers from judicial records will be required (Sec. 137) to show that they cannot obtain the originals or authenticated copies."

And in the Final Report it is stated:-"We think that applications to the court to send for records should, unless the court otherwise directs, be supported by an affidavit showing either that the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of the record, or that the production of the original is necessary for the purposes of justice; and to stop a practice which we understand occasionally prevails in the Mufassal, we have expressly provided that the power to send for records shall not enable the court to use in evidence any document which would be inadmissible in the suit."

138. The parties or their pleaders shall bring with them and have in readiness at the first hearing of the suit, to be proDocumentary evidence to be in readi- duced when called for by the Court, all the documentary evidence of every description in their posness at first hearing. session or power, on which they intend to rely, and which has not already been filed in Court, and all documents which the Court at any time before such hearing has ordered to be produced.

This section is of the utmost importance. Confer Sec. 63.

In their possession or power.-See the notes to Sec. 129.
Intend to rely.-See Sec 59.

Filed in Court.-Under Sec. 59.

139. No documentary evidence in the possession or power of any party the production of which has been called for under Effect of non-pro- Sec. 138, and which has not been produced, shall be duction of documents. received at any subsequent stage of the proceedings unless good cause be shewn to the satisfaction of the Court for the non-production thereof. And the Judge receiving any such evidence shall record his reasons for so doing.

140. The Court shall receive the documents respectively produced by the parties at the first hearing, provided that the documents produced by each party be accompanied by an accurate list thereof prepared in such form as the time to time direct.

Documents to be received by Court. High Court may from

Rejection of irrelevant or inadmissible documents.

The Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.

Accurate list thereof.-This is new and must not be overlooked. The provision will be most useful on appeal.

Irrelevant. This word denotes the opposite of relevant,' which, from the French relever, to raise again, means literally, raising; relieving; bearing upon or applying to the purpose, or matter in hand.

In a suit, generally speaking, the matter in hand is the question of the existence of a cause of action, or (to change the expression) in a suit the court has to consider whether the plaintiff has a 'right' (jus), and whether the defendant has infringed that right. And nothing will be 'relevant' which does not more or less directly bear upon that question. It is an English maxim that the evidence must be confined to the points in issue. Taylor, 282.

With regard to the rejection of exhibits as being 'irrelevant' or inadmissible,' the Calcutta High Court, in para. 9 of their Circular No. 9 of 1867, observe:-"The High Court cannot here lay down what documents ought to be rejected for these reasons, but they may advert to the most frequent violations of rule in this respect. These are generally (1st), the production of decisions and proceedings inter alios; and (2nd), the production of copies or offering secondary evidence of the contents of documents, when the originals ought to be produced, or their absence accounted for."

Inadmissible. That is, inadmissible in limine, as for example because unstampt. An exhibit admitted at this, may be rejected at a later stage of the suit.

141. No document shall be placed on the record No documents to be unless it has been proved or admitted in accordance placed on record unless with the law of evidence for the time being in force. proved. Every document so proved or admitted shall be endorsed with the number and title of the suit, the name of the person producing it, and the date on which it was produced. The Judge shall then endorse with his own hand a statement that it was proved against or admitted by (as the case may be) the person against whom it is used. The document shall then be filed as part of the record :

Proved documents

to be marked and filed.

Provided that, if the document be an entry in a shop-book or other book, the party on whose behalf such book is produced may Entries in shop- furnish a copy of the entry, which may be endorsed books. as aforesaid, and shall be filed as part of the record, and the Court shall mark the entry and shall then return the book to the person producing it.

All documents produced at the first hearing and not so proved or admitted shall be returned to the parties respectively producing them.

These new provisions are of the utmost importance. Observe that (1) nothing may be placed on the record unless duly proved or admitted, and (2) everything placed on record must be endorsed in a particular manner.

As regards admitting, see Sec. 128.

142. When a document so proved or admitted is relied on as evidence by either party, but the Court considers it inadmissible, it shall be further endorsed with the addition of the word "rejected," and the endorsement shall be signed by the Judge.

Rejected documents to be marked,

and returned, unless detained by Court.

The document shall then be returned to the party who produced it.

143. Notwithstanding anything contained in Secs. 62, 141 and 142, the Court may, if it see sufficient cause, direct any document or book produced before it in any suit to be impounded and kept in the custody of an officer of the Court, for such period and subject to such conditions as the Court thinks fit.

Court may order any document to be impounded.

Impounded.-Wharton says:-Impound (v. a.), to place a suspected document in the custody of the law, when it is produced at a trial.

144. In suits in which an appeal is not allowed, when the suit has been After lapse of time disposed of, and in suits in which an appeal is allowfor appeal, document ed, when the time for preferring an appeal from the admitted in evidence decree has elapsed, or, if an appeal has been prefer. red, then after the appeal has been disposed of, any may be returned. person, whether a party to the suit or not, desirous of receiving back any document produced by him in the suit, and placed on the record, shall, unless the document is impounded under Sec. 143, be entitled to receive back the same: