Nandawathie De Silva V. Yasawathie De Silva

1956 Present: K. D. de Silva, J., and H. N. G. Fernando, J.

M. B. NANDAWATHIE DE SILVA, Appellant, and M. B. YASAWATHIE
DE SILVA et al, Respondents

S. C. 51 (Inty.)-D. C. Galle, 5470IL

Discovery and Inspection of Documents-Scope and procedure-Objection to inspection on ground that documents do not support opponent's case-Form of affidavit- Civil Procedure Code, ss. 50, 51, 102, 103, 104, 105, 106, 109.

An order for discovery of documents need not be made as a matter of course, but is discretionary and may be resisted by a claim of privilege although no express provision in this behalf is to be found in section 102 of the Civil Procedure Code.

Although section 106 of the Civil Procedure Code does not on its face authorise the Court to refuse inspection of documents, the obligation to produce documents for inspection is much more restricted than the obligation to disclose their existence. One of the main grounds of protection is that the documents relate solely to the case of the party giving the discovery.

Where objection is taken to the inspection of any documents on the ground that they relate solely to the case of the party giving the discovery, the following is the proper procedure:-the party must declare by affidavit that the documents in question support or relate exclusively to his own case and that they contain nothing supporting or tending to support the adversary's case. An assertion in these terms is conclusive " unless the Court is reasonably satisfied or reasonably certain from particular sources that the nature of the document has been erroneously misconceived or that the documents are of such a character that the party cannot properly make such an assertion or the case has been misconceived ". In view of the conclusive effect which an affidavit made in the proper terms may have, a very serious responsibility is imposed on the legal advisers to peruse carefully all the documents and to refrain from advising their client to swear the affidavit unless the documents in questions do not even tend to support the opponent's case.

Where the party noticed fails to make the appropriate averments in the affidavit, the Court will usually not reject the affidavit without giving the party a further opportunity to make a further affidavit.

APPEAL from an order of the District Court, Galle.

H. W. Jayewardene, Q.C., with D. R. P. Goonetilleke, for the plaintiff-appellant.

D. S. Jayawickreme, Q.C., with C. D. S. Siriwardene, for the defendants-respondents.

Cur. adv. vult.

 February 28, 1956. H. N. G. FERNANDO, J.-

The plaintiff instituted this action for a declaration that three deeds executed by her deceased mother on 6th October, 1952, are null and void on the ground that their execution was secured by the defendants (brother

and sisters of the plaintiff) by fraud and collusion. After filing answer denying the allegations in the plaint, the defendants moved for notice on the plaintiff to declare by affidavit the documents to be relied on by her at the trial. Notice having issued, the plaintiff filed the necessary list which referred to three classes of documents-certain deeds and copies thereof, prescriptions and certificates issued by doctors, and letters written to the plaintiff's husband by the 3rd defendant and by the broker who arranged the marriage between plaintiff and her husband. In the accompanying affidavit, the plaintiff objected to the production of the two latter classes of documents " on the ground that they relate solely to my own title and contain evidence by which I seek to prove my case ". The defendants thereafter applied for an order of inspection in relation to all the documents, and, in response to the notice to produce, the plaintiff has again objected to production in the same terms, subject to the alteration that " they relate solely to my title and case ".

At the inquiry into the application f

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