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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.

11. Rules 1 to 11 of Order 11 deal with discovery of facts, whereas Rules 12 to 20 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.

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 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 on the partial non-compliance on the part of the defendant with the plaintiff's notice under Order XII Rule 8.

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.