IMPORTANT POINT
Discovery and production of document are distinct and independent.

R.D. Kothari, J.—The petitioner challenges the order passed below Exh.22 in HMP No.45 of 2014. Exh.22 is filed by the defendant – wife seeking ‘‘production and discovery’ of documents from the plaintiff.

2. The plaintiff – husband has instituted a Family Suit No.4 of 2015 before the Family Court, Ahmedabad praying for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. In HMP, wife has filed interim maintenance application and pending the hearing of the said application, Exh.22 is filed by the wife. The parties have married in 2002. They are blessed with one son –Daksh. At one time, they both were serving at Singapore. The dispute started between them and wife cam back to India and started living at parental home. She came back along with their son. The husband has filed reply to Exh.22.

3. In the present case, the petitioner had asked for (a) IT return of India and Singapore of the respondent and (b) bank’s statement of the plaintiff of his personal as well as of joint account for last 5 years of bank at India and at Singapore. In reply, the respondent has contended that this application is not maintainable and otherwise, the plaintiff has disclosed his monthly income on the basis of pay slip issued by the company. Further, it was contended that monthly income and expenditure is also stated by the plaintiff which is supported by affidavit. Therefore, for fair disposal of restitution Application, this application for production and discovery of document is not necessary.

4. Below Exh.22, initial order passed by the trial court was – fixed for hearing and thereafter, after hearing the learned advocates for the parties – the trial court has rejected the application. In the impugned order, the trial court has given mainly two reasons (i) the income of the petitioner is not in question in the petition and that being so, application for discovery and production cannot be allowed. Holding so, it concluded that such application is not maintainable and (ii) In Para.8, it is also mentioned that otherwise, there is material on record for deciding the interim maintenance application. These materials on record are; bank’s statement for the period from 1.11.2013 to 27.1.2014, Mark 16/2 to 16/4 showing ownership of the properties of the parties; details of monthly earning and expenses of petitioner and the salary slip.

5. Heard learned advocates for the parties.

6. Learned advocate for the petitioner, during the course of hearing, has prayed for time to enable the petitioner to draw attention of the Court to relevant case law. Since the matter was heard, the Court has granted time and has briefly recorded the submissions made by learned advocates for the parties. The order dated 15.2.2015 reads, thus:

“1. Heard learned advocates for the parties.

2. Learned advocate for the petitioner prays for time to draw the attention of the Court to relevant judgment. Prior to this request, learned advocate for the petitioner has referred to the relevant documents on record and has submitted that the trial Court has wrongly rejected petitioner’s applications for discovery and production and was drawn the attention of the Court to the relevant part of the order of the trial Court.

3. Learned advocate for the petitioner has submitted that trial Court seriously erred in rejecting the application on the ground that application is not maintainable.

4. Learned advocate for the respondent Mr.Sanjay R.Gupta has drawn the attention to reply filed by the present respondent to Number applicant’s applications under Section 24 of the Hindu Marriage Act. On facts, learned advocate Mr.Gupta has drawn attention to couple of material facts i.e. payment of about 74 lacs to the wife, offer of payment of Rs.30,000/- per month maintenance to the wife and lastly order dated 31.07.2015 in Special Civil Application No.9830 of 2015 pursuant to which the respondent is paying Rs.3 lacs per year for education of minor child. In this regard, learned advocate