JHATLOMAL KAKUMAL Vs. SHOBHRAJ THARYAMAL DALWANI

JUDGEMENT

(1.) This Revision Application is directed against the order refusing discovery of documents under O.11 R. 12 C. P. C. The learned City Civil Judge by his order dt. 12/10/1982 refused to order discovery as prayed for The learned Judge has mainly refused the discovery on the three-line-application on the ground that the applicant does not state how the documents sought to be discovered are relating to any matters in question in the suit and how the discovery is necessary and the court would not be in a position to know whether the discovery is necessary or not unless the documents are particularised and in absence of particulars of the documents to be discovered the other side would not be in a position to raise possible objections. The learned Judge has referred to several kinds of possible objections such as the documents contents of which the other side is expected to know documents not relating to the subject-matter of the suit the document being privileged one the document relating to the cause of the party called upon to discover document not being in sole possession of that party; that the document being in possession of a party merely as an agent of a third party; that the document might incriminate the party etc. It clearly appears that the purpose of discovery. has not been appre- ciated. Under 0. 11 R. 12 C. P. C. a discovery is made in form No. V to Sch. C. of C. P. C. In the case of Rameshchandra Balabhai Desai v. Padmaben Kalidas Desai 4 G. L. R. 783 this court has dealt with the provision of discovery in O.11 R.12 C. P. C. and has observed as follows:

(2.) 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 .

(3.) It is thus clear that the discovery could not be refused on the ground that the person making the application has not stated what documents he wants to discover. In the present case the trial Court was clearly in error in rejecting the application on the ground that no particulars are given of the documents to be discovered and the learned trial Judge has not held that the discovery is not necessary. The learned trial Judge felt that it is not possible to decide about the necessity of discovery of the documents unless particulars are given. In such type of discovery it is strictly not necessary to give particulars and even it would not be possible. In that case the court also held that such error is a material irregularity in the exercise of jurisdiction and liable to be referred with under sec. 115 C. P. C.