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Smt. Pramod Saraswat Vs. Sri Ashok Kumar Saraswat - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 342 of 1981
Judge
Reported inAIR1981All441
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 16, Rule 19 - Order 26, Rule 4; Uttar Pradesh Code of Civil Procedure (CPC) (Amendment) Act, 1978; Constitution of India - Article 227; Hindu Marriage Act, 1955 - Sections 13
AppellantSmt. Pramod Saraswat
RespondentSri Ashok Kumar Saraswat
Advocates:K.L. Grover, Adv.
Excerpt:
(i) civil - revision for appointment of commission to receive and record evidence - section 115 and order 26 rule 4 of code of civil procedure,1908 as amended in u. p. - order dismissing application to appoint commission to record evidence - held, revision does not lie against such order - as case is not decided finally. (ii) appointment of commission to record evidence - order 26 rule 4 of code of civil procedure,1908 - high court has power which it may exercise suo moto in interest of justice - order refusing commission to record evidence under order 26 rule 4 unjust and improper - high court empowered to set aside that order. - .....additional district judge, allahabad refusing the applicant's prayer for examining three of the witnesses on commission, in the course of the trial of a divorce petition. the wife is the applicant in this court and the opposite party husband is the petitioner for divorce of the district court. the ground on which the application for examination of the witnesses on commission was made is that these witnesses reside at dehradun which is a place more than 500 km away from allahabad, the place where the petition for divorce between the parties is being tried. rule 19 of order 16 of the code of civil procedure provides. 'no one shall be offered to attend in person to give evidence unless he resides. (a) within the local limits of the court's original jurisdiction, or (b) without such.....
Judgment:
ORDER

Deoki Nandan, J.

1. This revision application under Section 115 of the Civil P. C. is directed against an order dated 30th May, 1981, of the Court of the 1st Additional District Judge, Allahabad refusing the applicant's prayer for examining three of the witnesses on commission, in the course of the trial of a divorce petition. The wife is the applicant in this Court and the opposite party husband is the petitioner for divorce of the District Court. The ground on which the application for examination of the witnesses on commission was made is that these witnesses reside at Dehradun which is a place more than 500 KM away from Allahabad, the place where the petition for divorce between the parties is being tried.

Rule 19 of Order 16 of the Code of Civil Procedure provides.

'No one shall be offered to attend in person to give evidence unless he resides.

(a) within the local limits of the Court's original jurisdiction, or

(b) without such limits but at a place less than one hundred or where there is railway or steamer communication or other established public conveyance or private conveyances run for hire for five-sixths of the distance between the place where he resides and the place where the Court is situated less than five hundred kilometers distance from the Court-house:-- 'Provided that where transport by air is available between the two places mentioned in this rule and the witness is paid the fare by air, he may be ordered to attend in person.'

The witnesses are (1) Sri Arvind Nath Vashisht, (2) Smt. Aruna Vashisht, and (3) Smt. Prakash Vashisht. It may be here stated that on an application made under Section 24 of the Hindu Marriage Act, the sum of Rs. 1,500/- was allowed to the applicant for meeting the expenses of her defence in the divorce proceeding. In the application for expenses the total amount claimed was Rs. 5,000/-. Out of that Rs. 1,000/- was claimed for summoning evidence from Dehradun, and in the order granting the expenses some allowance has been made for travelling of the applicant from Dehradun and also 'something on the witnesses.' No application for maintenance pendente lite was made, obviously because the applicant wife is employed and is getting a salary of about Rs. 600/-per month.

2. The objections to the application for examining the said three witnesses on commission were that the list of witnesses was not filed in compliance with Rule 1 of Order 16 of the Civil P. C. and the names of these three witnesses disclosed for the first time in the affidavit filed in support of the application for the issue of commission. It was then said that the first witness is the cousin of the applicant wife and took active part in the settlement of marriage from the applicant's side the second witness was his wife, and the third witness was theapplicant's mother. It was accordingly not at all necessary to summon any of these witnesses as they will come of their own accord. It was added that for effective cross-examination of these witnesses, the petitioner-husband's presence at Dehradun will be indispensable but there was imminent danger to his life at Dehradun or Rishikesh. It was also added that it was in the interest of a just and fair trial that the witnesses were examined before the Court.

3. The learned Additional District Judge has rejected the application on the ground that the application or the affidavit filed in support of it do not disclose any reason as to why the statements of these witnesses should be taken on commission and the mere allegation that they were residents of a place which is about 600 kilometers from Allahabad was not sufficient for the issue of commission, as it must be shown by a party moving such an application that the evidence of such witnesses is necessary in the interest of justice that, nothing has been said in the application or the affidavit to show that the evidence of these witnesses is necessary in the interest of justice, and lastly, it was added, that the witnesses are under the control of the applicant, and in view of these facts the application was liable to be rejected.

4. Before I take up the merits of the matter it is necessary to notice a preliminary objection raised by Mr. K. N, Tripathi on behalf of the petitioner-husband who is the opposite party in this Court. Mr. K. N. Tripathi says that no case could be said to have been decided by the order sought to be revised. Whether a certain witness should be, examined on commission or should be examined in the presence of the court was a matter entirely concerning the procedure or the manner of the trial of the suit. The order does not in any manner adjudicate upon the rights of the parties. It is not a case where the taking of the evidence of these witnesses may have been shut out by the order. It is not a case where the applicant will not be able to produce these witnesses and will thereby be prejudiced in any manner. The only dispute was whether these witnesses should be examined at Allahabad or at Dehradun; That surelydid not affect the rights of the parties in any manner.

5. Mr. K. L. Grover for the applicant on the other hand contended that the phrase 'any case which has been decided,' includes any order made or any order deciding an issue, in the course of a suit or other proceeding in accordance with Explanation appended to Section 115 of the Civil P. C. as amended by the Code of Civil Procedure Amendment Act, 1976. Section 115 of the Civil P. C. has, however, been amended in its application to Ut-tar Pradesh, by the Code of Civil Procedure (U. P. Amendment) Act, 1978. The Explanation to Section 115 as amended by the said U. P. Act reads as follows:--

'In this section, the expression 'any case which has been decided'' included any order deciding an issue in the course of a suit or other proceedings.'

The words 'any order made' are not there in the Explanation as in force in Uttar Pradesh. The impugned order is surely not an order deciding an issue. Mr. Tripathi is right when he says that the order does not adjudicate upon any rights of the parties. It is surely an order made in the course of the divorce suit, but it is doubtful whether, even so, it would amount to a case decided within the meaning of Section 115 sans the U. P. Amendment. Be that as it may, under Section 115 as it stands in Uttar Pradesh, it is difficult to say that the impugned order amounts to a case decided.

6. Confronted with this position Mr. Grover pressed before me the illegality of the order and invoked this Court's jurisdiction under Article 227 for having the order set aside. It is no doubt true that the power of this Court under Article 227 is both judicial and administrative and may even be exercised suo motu in the interest of justice. See Aidal Singh v. Karan Singh (AIR 1957 All 414 (FB)). But the very amplitude of the power restricts the occasion for its use,

7. The question which, therefore, arises in this case is whether the impugned order is so illegal and unjust as to warrant interference under Article 227 of the Constitution.

8. Mr. Grover invited my attention to Order 26, Rule 4 which says that 'any court may in any suit issue a commission for the examination on interrogatories or otherwise of (a) any person resident beyond the local limits of its jurisdiction', and more particularly the proviso thereto which says that 'where under Rule 19 of Order XVI, a person cannot be ordered to attend a court in person, a commission shall be issued for his examination if his evidence is considered necessary in the interest of justice.' There is a further proviso that 'a commission for examination of such person on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.' The second proviso is not attracted to the facts of the present case inasmuch as the examination of the witnesses is not sought to be made on interrogatories. The question is whether it can be said that the examination of these witnesses, is necessary in the interest of justice, for if that be so, the court should have issued the commission for the examination of these witnesses almost as a matter of course.

9. In order to show that the examination of these witnesses was necessary in the interest of justice, Mr. Grover pointed out that even the names of the first two witnesses are mentioned in the written statement. The third witness is the applicant's own mother and even according to the objection filed by the petitioner husband, the first witness was actively concerned in the settlement of the marriage between the parties. It cannot be disputed that all the three witnesses sought to be examined by the applicant must be acquainted with the facts in issue between the parties as they are closely related to the applicant. Moreover, it would be impossible to say that the examination of the witnesses is not necessary in the interest of justice, unless it could be said on some material on the record that the witnesses knew nothing about the case. It is the right of a party to choose his witnesses. The consideration which weighed with the learned Additional District Judge in refusing the application for examination of these witnesses on commission, were in my view not proper consideration. It would not have advanced the applicant's case much further if in addition to what was apparent from the record, she had also come forward and stated in the affidavit and the application that the examination of these witnesses was necessary in the interest of justice. It was for the court to decide on the material on the record whether the examination of these witnesses was necessary in the interest of justice.

10. It was at this stage pointed out to me by Mr. K. N. Tripathi that according to Rule 3-A of Order 18 of the Civil P. C. where a party wants to appear as a witness himself, he has to do so before any other witness on his behalf has been examined, unless the court for reasons to be recorded permits him to appear as his own witness at a later stage.

11. On being questioned about this Mr. Grover for the applicant stated that the applicant would be a witness in the case.

12. Taking all these facts and circumstances into consideration, I think the proper order to pass on the application for examination of the three witnesses on commission would be to allow it subject to the following conditions,

(1) The applicant shall examine herself and any other witness whom she wants to examine at Allahabad before the commission is issued;

(2) After the applicant's evidence has been examined at Allahabad, the trial court shall issue a commission and send the entire record of the petition for divorce to the court of the District Judge Dehradun, in case a request is made at that stage by the applicant, for examination of the three witnesses, Arvind Nath, Smt. Aruna and Smt. Prakash or either of them on commission at Dehradun, and the court of the District Judge, Dehradun shall examine these witnesses either itself or by assigning the case to some other court competent to try the divorce petition, and shall return the record to the court of the Ist Additional District Judge, Allahabad, as soon as the witnesses are examined.

13. It shall, however, be open to the applicant to examine these three witnesses or either of them at Allahabad itself, before closing her evidence and after examining herself as a witness.

14. In the result, although the revision under Section 115 of the Civil P. C.cannot be allowed as it is not maintainable, and is dismissed as such this Court does, in exercise of its power under Article 227 of the Constitution allow the applicant wife's application for issue of commission for the examination of the three witnesses named therein at Dehradun, subject to the directions given and the conditions laid down in the immediately preceding paragraph, in Matrimonial Petition No. 101 of 1979 at present pending in the court of the 1st Additional District Judge, Allahabad and this Court does hereby direct the trial court to act accordingly. The parties shall bear their own costs in this Court.


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