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Rameshchandra Balabhai Desai Vs. Padmaben Kalidas Desai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1963)4GLR783
AppellantRameshchandra Balabhai Desai
RespondentPadmaben Kalidas Desai
Excerpt:
.....that the wife bad produced some letters along with her plaint and he prayed that whatever other letters and documents that may be in her possession should have been discovered and the wife should be ordered to file an affidavit of documents. any party may without filing any affidavit apply to the court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power relating to any matter in question therein on the hearing of such application the court may either refuse or adjourn the same if satisfied that such discovery is not necessary or not necessary at that stage of the suit or make such order either generally or limited to certain classes of documents as may in its discretion be thought fit: code may..........be adjourned if the court is satisfied that the discovery is not necessary at that stage of the suit. discovery may not be ordered when and so far as the court is of the opinion that the discovery is not necessary either for disposing fairly of the suit or for saving costs. the judge may make such an order either generally or limited to certain classes of documents as may in his discretion be thought fit. the learned judge has not stated in his order that the discovery is not necessary or that the discovery is not necessary at that stage of the suit or that the discovery is not necessary either for disposing fairly of the suit or for saving costs. of course he has made remarks about the letters written by the husband. but regarding the other documents he has not made any such remarks......
Judgment:

V.B. Raju, J.

1. In a suit filed by a wife against her husband for divorce the husband gave an application for discovery of documents. This application was rejected by the Civil Judge Senior Division Surat and hence the husband has now come in revision.

In his application the husband stated that the wife bad produced some letters along with her plaint and he prayed that whatever other letters and documents that may be in her possession should have been discovered and the wife should be ordered to file an affidavit of documents. Regarding the letters the learned Judge observed in his order that he is expected to know the letters written by him to the petitioner (wife). Regarding the other documents the learned Judge observed that he does not disclose which other documents relating to the petition are in possession of the petitioner (wife). The learned Judge therefore thought that the application for filing affidavit or documents was vague and without any basis. He therefore rejected the application of the husband who has now come in revision.

2. Under Order 7 Rule 14 C.P. Code documents relied on in the plaint must be attached to the plaint. Other documents which are relied upon as evidence in support of the plaintiffs claim should be entered in a list to be added or annexed to the plaint. It is then provided in Order 11 Rule 12 Civil Procedure Code as follows:

Any party may without filing any affidavit apply to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power relating to any matter in question therein on the hearing of such application the Court may either refuse or adjourn the same if satisfied that such discovery is not necessary or not necessary at that stage of the suit or make such order either generally or limited to certain classes of documents as may in its discretion be thought fit: Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.

3. It is to enable the defendant to know what documents relating to the matter in question in the suit are or have been in possession or power of the plaintiff that Order 11 Rule 12 has been enacted. A person making an application under Order 11 Rule 12 C.P. Code is not expected to state what documents he wants to be discovered because the very object of the discovery is to know the documents which are not with one of the parties. It is therefore wrong for the learned Judge to reject the application on the ground that no particulars are given of the documents referred to. But the learned Judge may be right in so far as the letters written by the husband to the wife are concerned. An application made under Order 11 Rule 12 C.P. Code may be refused if the Court is satisfied that the discovery is not necessary. The application may be adjourned if the Court is satisfied that the discovery is not necessary at that stage of the suit. Discovery may not be ordered when and so far as the Court is of the opinion that the discovery is not necessary either for disposing fairly of the suit or for saving costs. The Judge may make such an order either generally or limited to certain classes of documents as may in his discretion be thought fit. The learned Judge has not stated in his order that the discovery is not necessary or that the discovery is not necessary at that stage of the suit or that the discovery is not necessary either for disposing fairly of the suit or for saving costs. Of course he has made remarks about the letters written by the husband. But regarding the other documents he has not made any such remarks. So far as the letters written by the husband to the wife the order may be justified because the learned Judge has observed that the husband is expected to know the letters written by him to his wife. Impliedly therefore the learned Judge thinks that the discovery in respect of letters is not necessary. But regarding the other documents there is no observation of the learned Judge that the discovery is not necessary or the discovery is not necessary at the stage of the suit or that the discovery is not necessary either for disposing fairly of the suit or for saving costs Regarding the other documents therefore the learned Judge has committed a material irregularity in the exercise of jurisdiction.

4. The revision application is therefore partly allowed and the learned Judge is directed to reconsider the matter of the discovery of the documents other than the letters written by the husband to the wife and to pass appropriate orders under Order 11 Rule 12 Civil Procedure Code No order as to costs.


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