This article is written by Uzar Kohari, of Rizvi Law College B.A LLB, Final Year during his internship at LeDroit India
Introduction
The production of documentary evidence in civil litigation plays a pivotal role in determining the rights and obligations of parties before a civil court. Documentary evidence forms the backbone of many civil disputes, particularly in matters of contracts, title to property, debts, and accounts. Recognizing this, the Code of Civil Procedure, 1908 (CPC) provides a detailed scheme governing when and how documents must be produced, the procedure for their scrutiny, and the consequences of failing to comply with prescribed timelines.
Order XIII of the CPC is dedicated to the production, impounding, and return of documents. In this article, we examine:
- The provisions of Order XIII;
- The legal purpose and policy underlying early production;
- The consequences of non-production at the first hearing / settlement of issues;
- Judicial interpretations of the applicable rules;
- The interaction with other CPC provisions (like Order VII, Rule 14 and Order XVIII Rule 17-A);
- Practical implications for litigants.
Throughout, where citations to statutes or commentary are necessary, I have included links to reliable legal repositories and explanatory sources.
Part I — Statutory Scheme: Order XIII CPC
- Rule 1 — Production of Documentary Evidence
Order XIII, Rule 1 CPC sets out the obligation of parties to produce documentary evidence at an early stage of proceedings:
“The parties or their pleader shall produce on or before the settlement of issues all the documentary evidence in original in their possession or power on which they intend to rely and which has not already been filed in Court.”
Key Features of Rule 1:
- The obligation arises at or before the settlement of issues, which is generally the first hearing where issues between the parties are framed.
- The rule applies to documents in possession or power of the party and on which the party intends to rely in evidence.
- A list of such documents must accompany the production in a form directed by the High Court.
Exceptions: Rule 1(3) does not apply to documents—
- produced solely for the cross-examination of the other side’s witnesses, or
- handed to a witness to refresh memory.
This rule is designed to ensure early disclosure of documentary evidence so that parties are not ambushed with surprises later in the trial.
- Rule 2 — Effect of Non-Production (Historical Position)
Originally, Order XIII Rule 2 CPC provided:
“No documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of Rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing.”
Policy of Rule 2:
- This rule imposed a significant condition: if a party failed to produce documents at the settlement of issues, the court would not receive such documentary evidence later unless the party showed good cause for the failure.
However, after amendments under the CPC (Amendment) Act, 1999, Rule 2 was omitted with effect from 1 July 2002. As a result, the literal embargo on later reception of documents under Order XIII Rule 2 no longer exists in the present statute.
This legislative change has significant practical and doctrinal consequences — which we will analyze in depth later.
- Other Rules in Order XIII
While the focus here is on production and non-production, other Rules in Order XIII are relevant for completeness:
- Rule 3 permits the court to reject irrelevant or inadmissible documents.
- Rules 4–7 deal with endorsements on admitted or rejected documents and the return of documents.
- Rules 8–11 provide for impounding, return, and obtaining records from other courts.
Part II — Purpose and Policy Behind Early Production
- Transparency and Fair Play
The core policy of requiring production at the first hearing is to eliminate trial by ambush. If each party discloses the documentary evidence on which it relies early in the process, the opposite party gets adequate time to examine, inspect, and prepare its defenses. Without this rule, one party could surprise the other with crucial documents at a later stage, rendering preparation unfair and prejudicial.
- Efficient Case Management
Early production helps streamline the trial calendar, minimizes adjournments, and often allows the court to resolve issues at the threshold itself. When the relevant documents are before the court at the outset, several pre-trial matters can be efficiently addressed — such as categorizing exhibits, ordering translations, or directing impounding of suspicious documents.
- Avoidance of Tampering or Suppression
By compelling early production, the Code seeks to reduce the risk of tampering, suppression, or manipulation of documents during the pendency of litigation. If a party already has a document but fails to produce it at the first hearing without persuading the court of good cause, historically that document could be excluded. Although Rule 2 has been omitted, the underlying policy against late surprises remains strong in judicial practice.
Part III — Consequences of Non-Production at First Hearing
Historical Position — Rule 2 (Before 2002 Repeal)
Under the historic Rule 2 (now repealed), the consequences were harsh but clear:
If a party failed to produce documentary evidence at the settlement of issues, such evidence could not be received later in the proceedings unless the party showed good cause to the satisfaction of the court.
Good Cause Requirement
“Good cause” was judicially understood to require an explanation that was:
- credible;
- not merely a tactical delay;
- supported by evidence (such as a plausible reason for non-availability or inability to produce on time).
Judicial interpretations in cases like Re. Arjun Singh v. Mohindra Kumar (AIR 1964 SC 993) emphasized that the power to receive evidence late must not be exercised routinely but only where the cause is bona fide and substantial.
Impact of Repeal of Rule 2
Legislative repeal of Rule 2 in 2002 changed the statutory language: the express embargo against late production as a standalone rule under Order XIII was removed.
However, the practical consequence — that courts are reluctant to allow late production — often still manifests because:
- Other provisions in the CPC (notably Order VII Rule 14 and Order XVIII Rule 17-A) regulate late production and admission of documents;
- Judicial discretion continues to be exercised cautiously;
- The policy of early disclosure remains embedded in procedural jurisprudence.
Interaction with Order VII Rule 14 CPC
Order VII Rule 14 CPC governs production of documents with the plaint. It states that:
A document which ought to have been produced with the plaint cannot — without the leave of the court — be received in evidence later.
Therefore, even without Order XIII Rule 2, a party seeking to produce a document not filed with the plaint must seek leave of the court under Order VII Rule 14(3).
This mechanism functions as a parallel control on late production and ensures that courts have discretionary authority to admit documents where justified, or to refuse where not justified.
Interaction with Order XVIII Rule 17-A CPC
Order XVIII Rule 17-A CPC specifically enables a party to produce evidence:
- which was not previously known; or
- which, despite due diligence, could not be produced earlier.
This rule operates even after the party’s evidence has concluded, provided the court is satisfied that:
- The evidence was not within the party’s knowledge earlier; or
- The evidence could not be produced despite due diligence.
This rule — combined with judicial interpretation — means that some documentary evidence may still be allowed at a later stage despite initial non-production, but only when justice requires it and genuine reasons exist.
Part IV — Judicial Interpretation & Case Law
Harmonizing Order XIII with Order VII and Order XVIII
In judgments such as Bhavsing vs Namratha, courts have held that:
- Rule 1 of Order XIII mandates early production;
- Order VII Rule 14 gives the court discretion to allow late production with leave; and
- Order XIII Rule 1 read with Order VII Rule 14(3) must be interpreted harmoniously.
Thus, even after repeal of Rule 2, late production is not absolutely barred — it must be subject to leave under Order VII Rule 14(3) and sound judicial discretion.
Requirement of Good Cause (“Good Cause” Standard)
Although Order XIII Rule 2 has been omitted, courts frequently employ the good cause paradigm (derived from the former rule and reinforced in related provisions) when considering applications for late production under Order VII Rule 14(3) or Order XVIII Rule 17-A.
As explained by legal commentators:
- “Good cause requires a lesser degree of proof than ‘sufficient cause’”;
- Mere delay without reasonable explanation does not constitute good cause;
- Genuine inability to produce due to factors beyond the party’s control may be considered.
This reflects a balanced approach: while justice should not be defeated by strict technicalities, procedural compliance remains critically important.
Role of Judicial Discretion
Indian courts have repeatedly stressed that the power to receive late documentary evidence is discretionary:
- The court may allow late production if the document’s genuineness is apparent and it would be unjust to exclude it;
- The court must consider prejudice to the other party;
- The stage at which the application is made is relevant;
- The court must ensure that allowing late production does not result in trial by ambush or prolongation of litigation without good reason.
This judicial approach reflects a balance between legal procedure and substantive justice.
Part V — Practical Implications of Non-Production
Exclusion of Documentary Evidence
As a practical consequence, if a party fails to produce crucial documents at the first hearing/settlement of issues and cannot justify the late production under Order VII Rule 14(3) or Order XVIII Rule 17-A, the court may refuse to admit the document in evidence. This can severely weaken the party’s case, especially where documentary proof is decisive.
Prejudice to Opponent & Adjournments
Late production often leads to:
- Adjournments as the opposite side seeks time to inspect and counter-examine;
- Increased litigation costs;
- Tactical disadvantages for the requesting party.
Courts are sensitive to such prejudice and therefore scrutinize applications for late production carefully.
Interaction with Evidence Act
Even after production, documents must satisfy the Indian Evidence Act, 1872 standards of admissibility (authenticity, relevancy, lack of tampering). Courts may reject documents on these grounds even if they are technically produced in time.
Part VI — Comparative Perspectives (Before & After Rule 2 Repeal)
Before 2002 — Strict Rule
Previously, courts had no statutory power within Order XIII to receive a document later unless good cause was shown. This was a rigid embargo to ensure early production.
After 2002 — Flexible Framework
With Rule 2 repealed:
- There is no express statutory prohibition against late production under Order XIII itself;
- However, the doctrinal purpose of early production persists;
- The court relies on Order VII Rule 14(3) and Order XVIII Rule 17-A to govern late admission.
The net effect is less procedural rigidity but still strong judicial control to prevent abuse.
Judicial Pronouncements on Production of Documents under Order XIII CPC
The courts in India have repeatedly interpreted Order XIII CPC in conjunction with other procedural provisions to strike a balance between procedural discipline and substantive justice. The following landmark and persuasive judgments clarify the consequences of non-production of documentary evidence at the first hearing or settlement of issues.
Arjun Singh v. Mohindra Kumar
AIR 1964 SC 993
Supreme Court of India
Facts
The issue before the Supreme Court was whether procedural rules relating to production of evidence should be applied rigidly or flexibly when justice demands otherwise.
Legal Principle
The Supreme Court held that procedural law is handmaid of justice, not its mistress. However, procedural rules cannot be ignored altogether, as they ensure fairness and certainty.
Relevance to Order XIII
The Court clarified that:
- Rules requiring production of evidence at a particular stage are mandatory in form;
- Yet courts retain limited discretion to relax such rules where refusal would defeat justice.
Ratio
“Procedure is designed to facilitate justice and further its ends, not to frustrate them.”
This judgment laid the foundation for later interpretations allowing late production of documents upon showing good cause, even under Order XIII.
Source:
- Supreme Court Reports
- LawWeb: https://www.lawweb.in/2015/02/basic-principles-for-production-of.html
Ashoka Marketing Ltd. v. R.N. Roy
(AIR 1991 Cal 417)
Calcutta High Court
Facts
The plaintiff sought to introduce documentary evidence at a later stage, which had not been produced at the settlement of issues.
Legal Issue
Whether documents not produced at the first hearing could be received in evidence at a later stage.
Held
The Court held that:
- Order XIII Rule 1 is mandatory;
- However, Rule 2 (prior to its repeal) allowed the court to accept documents later if good cause was shown.
Key Observation
“The language of Rule 1 is peremptory, but Rule 2 vests discretion in the court to accept documents if circumstances so justify.”
Importance
This case clearly establishes that non-production is not automatically fatal, but places a burden of justification on the defaulting party.
Source:
- Indian Kanoon: https://indiankanoon.org/doc/1695880/
Salem Advocate Bar Association (II) v. Union of India
(2005) 6 SCC 344
Supreme Court of India
Context
This case examined the constitutional validity and impact of the CPC Amendment Acts of 1999 and 2002, including the repeal of Order XIII Rule 2.
Held
The Supreme Court upheld the amendments and clarified that:
- Even though Rule 2 of Order XIII was omitted,
- Courts still have sufficient powers under:
- Order VII Rule 14(3),
- Order XVIII Rule 17-A,
- Section 151 CPC (inherent powers).
Relevance
The judgment confirms that late production of documents is not prohibited, but must be:
- Controlled by judicial discretion;
- Allowed only when justified by due diligence and necessity.
Key Extract
“The object of procedural amendments is to expedite trials, not to shut out genuine evidence.”
Source:
- SCC Online
- Supreme Court Cases (SCC)
Conclusion on Case Law Position
From the above judicial analysis, the settled legal position is:
- Order XIII Rule 1 mandates early production of documents;
- Non-production at the first hearing is procedurally serious, though not automatically fatal;
- Courts may allow late production only upon:
- Due diligence,
- Bona fide explanation,
- Absence of prejudice to the other party;
- Repeal of Order XIII Rule 2 does not dilute the obligation of timely disclosure;
- Courts may:
- Reject late documents,
- Impose costs,
- Draw adverse inference under the Evidence Act.
Part VII — Conclusion
Production of documents under Order XIII CPC is a fundamental procedural step in civil litigation. The historic requirement to produce documentary evidence at or before the settlement of issues — and the consequences of failing to do so — cannot be overstated:
- Early production promotes fairness, transparency, and efficiency;
- Non-production at the first hearing can result in exclusion of evidence or need for leave of court;
- Though Order XIII Rule 2 has been repealed, other CPC provisions (Order VII Rule 14, Order XVIII Rule 17-A) continue to impose constraints on late production;
- Courts exercise cautious discretion in admitting late documents and require credible justification;
- The overarching theme in CPC jurisprudence is that procedural compliance and substantive justice must coexist.
For litigants, the practical lesson is clear: produce all relevant documents at the earliest stage of the suit. Failing to do so may result in significant legal disadvantages that cannot easily be cured later in the proceedings.
