1. By this revision, petitioner bank has entitled the order passed below Ex.56 by the learned Civil Judge (S.B.), at Porbandar on 22-4-1985 in Regular Civil Suit No. 27 of 1983. Thus, the petitioners have invoked the provisions of Section 115 of the Civil Procedure Code ('Code' for short hereinafter).
2. Learned advocate Shri K. M. Patel appeared for the petitioners while learned advocate Shri D. G. Karia appeared for the opponent in this revision.
3. Learned advocate Shri Patel, for the petitioner, has vehemently contended that the impugned order is totally invalid and illegal. The learned advocate Shri Karia for the opponent repels his contention.
4. In fact that the question, which has arisen in this revision, is very short, but very interesting. The short question is, whether the impugned order passed below Ex.56 in legal and valid or not. In order to appreciate the merits of this short question, it would be necessary to set out a few relevant and material facts leading to the rise of the present revision.
5. The present opponent filed the above suit against the present petitioner Union Bank of India. The parties are hereinafter addressed to as 'plaintiff' and 'defendant' for the sake of convenience and brevity. The plaintiff, in short, by filing the suit challenged the order of the defendant bank asking him to repay allowances paid to him which were, as such, not admissible as per the policy of the bank. The plaintiff was working as a Special Assistant, in Jamnagar Branch, of the defendant bank in Feb. 1981. By letter dated 8-2198 1, the defendant bank offered him promotion as officer in the Junior Management Grade/ Scale 1. The letter contained details of basic pay and dearness allowance, which would be paid to the plaintiff on his promotion as Junior Management Grade/Scale I Officer. It was also conveyed in the said later by the bank that other allowances would be admissible as per the policy of the bank from time to time on all India basis. The plaintiff that after, by his latter dated 5-3-1981 requested the defendant bank to furnish him with the details of allowances which would be admissible to him on his promotion as Officer. The defendant bank communicated by letter-dated 19-3-1981 that on his promotion be would be entitled to Rs. 112.50 as House Rent Allowance. Rs. 167.60 as Personal Allowance and Rs. 104.60 as Temporary Dearness Allowance. The basic salary, which the plaintiff was drawing at the time of his promotion, was at the maximum of his scale. On promotion of the plaintiff, he was to be given fitment in Junior Management Grade/ scale I Officer, which carried the maximum basic salary of Rs. 1800/- in the relevant pay scale. The plaintiff opted for promotion and came to be promoted with effect from 4-41985 and he was posted as such to work as officer in the Junior Management Grade/ Scale I in Porbundar Branch. Thereafter the defendant bank found that there was a bonafide mistake committed by the bank while carrying out the fitment of the plaintiff in the Junior Management Grade/ Scale I in so far as the personal allowance on promotion was concerned. Having discovered the mistake of over-payment after promotion, pursuant to the audit objection, the defendant bank was pleased to direct that the plaintiff be not entitled to the personal allowance of Rs. 167.60 from January 1983. It was further decided by the bank that the excess amount of Rs. 3339.60 should be recovered from the plaintiff.
6. The facts so far stated are no longer in controversy and the one, which is in controversy between the parties, is in a very narrow compare.
7. The plaintiff preferred an application at Ex. 56 under Order XI Rule 12 of the Code for discovery of documents, which are elaborately listed in it. This application was submitted in the trial court on 17-12-1984. The application Ex. 56 was vehemently and strongly resisted by the defendant-bank by filing written objections at Ex. 60. After hearing both the parties, the learned trial Judge was pleased to allow the application and directed the defendant bank for the discovery of the documents as desired by the plaintiff. Being aggrieved by the said order passed on 22-4-1985, the original defendant bank has now come up before this Court under section 115 of the code challenging its legality and validity.
8. Having heard the learned advocates for the parties and having perused the impugned order and other relevant papers, this Court is extremely unable to up-hold the impugned decision. It is true that under Order XI Rule 12 of the Code, a Court is competent to direct the parties to litigation to make discovery, on oath, of the documents which are or which have been in its possession or power relating to any matter in question therein. In order to exercise discretionary power under order X1 Rule 12 of the Code and before passing any order therein, it is incumbent upon the Court to consider the relevancy of the document in the light of the dispute or controversy between the parties. Not only that, the Court should also seriously apply its mind, at that stage, and satisfy as to whether the documents asked for or sought for or ordered to be discovered, are required for the purpose of discovery for the effective disposal of the, issues in the suit. It appears from the plain perusal of the impugned order that the learned trial Judge, with due respect to him, has failed to appreciate those aspects enshrined in Order XI Rule 12 of the Code before passing the impugned order. In fact, the first look at the impugned order would rediate an imprint of total non-application of mind on the part of the learned trial Judge. There is no doubt in the mind of this court that there was non-application of mind not only qua the facts but qua law as such. The issues framed by the trial court do not, prima facie, call for or warrant the discovery of all the documents enumerated in Ex. 56. It appears that the learned trial Judge has passed order below Ex. 56 casually and mechanically. Unfortunately, the linch pin for passing an order of discovery under Order XI Rule 12 of the Code is relevancy of the documents with regard to controversy between the parties. This aspect must be borns in mind before passing an order of discovery, particularly so, when specific documents are sought to be discovered by the party. Reliance is placed by the learned trial Judge on a decision reported in AIR 1979 Ori. 96. The said decision of the Orissa High Court indicates that admissibility of a document in evidence is not required to be examined at the stage of discovery. However, it is also clearly held in the said decision that relevancy has got to be considered.
9. Having regard to the facts and circumstances narrated hereinbefore and considering the compass of controversy between the parties, the trial court is required to be directed to re-hear Ex. 56 and decide the same, on merits, in the light of the relevant provisions of law, afresh, as the impugned order, as it stands, is patently illegal.
10. In the result, this revision application is allowed. The impugned order passed below Ex. 56 is set-aside with a direction to the trial court to decide Ex. 56, afresh, after hearing the parties, on merits. Rule is made absolute to the aforesaid extent with no order as to costs.
11. Petition allowed.