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Life Insurance Corporation of India Vs. Pushpa Mehra - Court Judgment

LegalCrystal Citation
SubjectInsurance
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revision No. 2510 of 1984
Judge
Reported in[1987]62CompCas343(P& H)
ActsCode of Civil Procedure (CPC) - Sections 115 - Order 16, Rule 19 - Order 26, Rules 4 and 5; Punjab Courts Act - Sections 44; Constitution of India - Article 227
AppellantLife Insurance Corporation of India
RespondentPushpa Mehra
Appellant Advocate L.M. Suri, Adv.
Respondent Advocate R.K. Chhibber, Adv.
Cases ReferredG) Hindustan Aeronautics Ltd. v. Ajit Prasad Tarway
Excerpt:
.....if it ordered the witnesses to attend the court in person. godha ram, ilr (1979) 1 p & h 147 ;air 1979 p & h 76. however, this court has jurisdiction to interfere in revision in exceptional cases. the facts of the present case have not been shown to be exceptional for interference in revisional jurisdiction. i also do not find that it is one of the exceptional cases in which the court should exercise its revisional powers. the corporation is not a poor litigant. both the petitions accordingly fail and the same are dismissed with no order as to costs......has referred to the judgment rendered by mehar singh c.j. in dhana singh v. kishan chand, civil revision no. 372 of 1964 decided on august 26, 1966, wherein it was held :'there is a conflict of judicial opinion whether an order refusing to issue commission under order 26, rule 4 of the code is or is not open to revision under section 115 of the code, but if the order is without jurisdiction or in making the order, the trial court has acted with material irregularity in the exercise of its jurisdiction, it would, like any other order, on this ground, be revisable by this court under section 115 of the code. the question then is, has the trial court in this case in refusing to issue commission to the defendant either refused to exercise jurisdiction or has acted with material.....
Judgment:

B.S. Yadav, J.

1. This judgment will dispose of the above titled revision petition as well as Revision Petition No. 2511 of 1984 of the same title as the law point involved in both these petitions is the same.

2. The facts in brief are that the present respondent, Smt. Pushpa Mehra, had filed a suit for the recovery of Rs. 53,560 on the basis of a life insurance policy taken out by her husband as the Life Insurance Corporation (for short 'the Corporation') had repudiated her claim. The suit was contested by the defendant on the ground that at the time of submission of the proposal for insurance and at the time of his medical examination in the personal statement regarding his health, the deceased had made incorrect statements and had withheld the correct information regarding his health at the time of effecting the insurance. To substantiate their allegations, the Corporation applied before the trial judge for examination of some witnesses on commission or interrogatories. Four witnesses so sought to be examined resided in Bombay, one in Ahmedabad and the sixth one in Dhrangadhra (Saurashtra). The learned judge, in his order dated August 17, 1984, remarked that for issuing a commission for examination of witnesses on interrogatories, the court had to give reasons for holding that it was necessary to do so and the only ground on which such examination of the witnesses was prayed, was that the witnesses were residing at a distance of more than 500 kms from Amritsar and beyond the local limits of the court's jurisdiction and that Bombay was connected by air with Amritsar and the proviso to Order 16, Rule 19, of the Civil Procedure Code provided that where transport by air was available between the two places mentioned in that rule and the witness was paid the fare by air, he might be ordered to attend in person. Accordingly, he dismissed the application. Feeling aggrieved against that order, the Corporation filed the present revision petition.

3. The Corporation thereafter filed an application for examination of the above witnesses by sending a local Commissioner. The trial judge disallowed that application also on the ground that by sending a local Commissioner from Amritsar, the plaintiff would have to incur huge expenses as she would have to engage a counsel at all the places where the witnesses were residing and, therefore, it was neither expedient nor economical to send the local Commissioner for recording the statements of the witnesses. It was also remarked that the places of residence of witnesses sought to be examined were admittedly linked by air with Amritsar. Feeling aggrieved against that order, the Corporation filed the other revision petition.

4. Learned counsel for the respondent raised a preliminary objection that both these revision petitions are against interlocutory orders as the order refusing to issue a commission cannot be said to be 'deciding a case' within the meaning of Section 115 of the Code of Civil Procedure (for short 'the Code'). I am of the opinion that the said argument has force. Interlocutory orders should not be interfered with in revision. In this respect, reference can be made to Firm Rahmad Ullah-Fakhar-ud-Din v. Firm Rahim Bakhsh Qumar-ud-Din, AIR 1923 Lah 301(2), wherein it was remarked (at p. 301(2)):

'This is a petition in revision against an interlocutory order, to which counsel for the respondent raises the preliminary objection that no revision lies, and cites Gulabchand v. Sher Singh [1916] 149 PWR 1916 ; 35 IC 608 ; 8 PLR 1917, Budhu Lal v. Mewa Ram, AIR 1921 All 1; 43 All 564 [FB], Mehlab Rai v. Kaman Lal [1899] 58 PR 1899 and Gawri Shankar v. Ganga Ram [1919] 77 PR 1919 ; 52 IC 859. Counsel for the petitioner cites Gawri Shankar v. Ganga Ram [1919] 77 PR 1919 ; 52 IC 859.

5. It may be stated that Section 44 of the Punjab Courts Act is word for word the same as Section 115 of the Code of Civil Procedure and that a Full Bench of the Allahabad High Court held in Budhu Lal v. Mewa Ram [1921] 43 All 564 ; AIR 1921 All 1 [FB] that no revision lay when no case had been decided by the court below within the meaning of Section 115, Civil Procedure Code.

6. In Gulabchand v. Sher Singh [1916] 149 PWR 1916 ; 35 1C 608 ; 8 PLR 1917 it was held by a judge of the Punjab Chief Court that interlocutory orders cannot or at any rate should not be interfered with in revision. Several rulings, specially Mehlab Rai v. Kaman Lal [1899] 58 PR 1899, were referred to in that case.

7. The facts of Gawri Shankar v. Ganga Ram [1919] 77 PR 1919 ; 52 IC 859 were quite peculiar and it can afford no assistance in this case.

8. The order of which revision is sought in this case was that the court below in supersession of its previous order issuing a commission to examine a witness who resided in Amritsar at a distance of more than two hundred miles from Delhi where the court was, issued a summons to him to attend the court at Delhi. This order is in contravention of Order 16, Rule 19, Civil Procedure Code, but this court cannot interfere.'

9. In Mohinder Kumar Rajinder Parkash v. Basheshar Nath [1976] 78 PLR 280, the plaintiff had made an application for appointment of a local Commissioner to make measurements at the spot. The trial judge held that the application was made to delay the decision of the suit. He rejected the same and refused to issue a local commission. Feeling aggrieved, the plaintiff came to this court in revision. In that case also, a preliminary objection was raised to the effect that the order rejecting the application for appointment of a local Commissioner for making measurements on the spot is not a case decided within the meaning of Section 115 of the Code and, therefore, the revision petition was not competent. That objection was sustained. It was remarked :

'To the same effect was the law laid down by a Division Bench of the Sind High Court in Shantibai v. Motiram Sitaram, AIR 1946 Sind 30, and Mirza Iqbal Ali Beg v. Dr. S. Abdul Ali, AIR 1942 Oudh 344. In all these decisions, it was held that an order refusing to issue a commission is only an interlocutory order and does not amount to a case decided and so no revision lies under Section 115, Civil Procedure Code, to set it aside. Inview of the law laid down in these cases, the preliminary objection raised by Mr. Goyal must prevail and this revision petition must be dismissed. The remedy of a party if a commission is not issued as desired by it is not by way of revision under Section 115, Civil Procedure Code, but it can make it a ground of appeal if the appeal becomes necessary against the final decree passed against it.'

10. The above observations were approved and followed by R.S. Narula C.J. in Dalmir Singh alias Dalmira v. Sant Parkask [1976] RLR 654.

11. Learned counsel for the respondent has referred to the judgment rendered by Mehar Singh C.J. in Dhana Singh v. Kishan Chand, Civil Revision No. 372 of 1964 decided on August 26, 1966, wherein it was held :

'There is a conflict of judicial opinion whether an order refusing to issue commission under Order 26, Rule 4 of the Code is or is not open to revision under Section 115 of the Code, but if the order is without jurisdiction or in making the order, the trial court has acted with material irregularity in the exercise of its jurisdiction, it would, like any other order, on this ground, be revisable by this court under Section 115 of the Code. The question then is, has the trial court in this case in refusing to issue commission to the defendant either refused to exercise jurisdiction or has acted with material irregularity in the exercise of its jurisdiction It appears at least from Order 16, Rule 19, that a witness, even if he is a defendant and has to appear as a witness on his own behalf and lives beyond two hundred miles of the situation of the court, cannot be compelled to appear in court in person. On this consideration, I think the ratio of the decision in T.W.V. Elvers's case, AIR 1924 Lah 475, appears to be sound and if this is not a case of refusal to exercise jurisdiction, it obviously is a case of material irregularity in the exercise of its jurisdiction by the trial court in not issuing commission to the defendant for his examination as his own witness in the circumstances of the case. '

12. Reliance was also placed upon Goverdhan Dass Gopi Nath v. Amolak Raj [1976] 78 PLR 146 wherein S.C. Mittal J. remarked as follows:

'The learned counsel for the defendant then invited my attention to the decision of Mehar Singh C.J. in Dhana Singh v. Kishan Chand, CR No. 372 of 1964--August 26, 1966. In that case, the learned judge relying on T.W.V. Elvers v. American Motor Co., AIR 1924 Lah 475, observed that an order refusing to issue commission for the examination of a witness under Order 26, Rule 4, of the Code was open to revision under Section 115 of the Code. The learned counsel next placed reliance on Subbaraya Padayachi v. Kozhandaivel Udayar, AIR 1949 Mad 496, in which Subba Rao J. (as he then was) set aside an order of the trial court rejecting the application for the issue of commission to examine an expert witness residing beyond thelimits prescribed by Order 16, Rule 19(b), of the Code and allowed the revision petition under Section 115 of the Code.'

13. The above cases do not help the petitioner because Goverdhan Dass Gopi Nath's case [1976] 78 PLR 146, was specifically overruled by a Division Bench of this court. The judgment is reported as Harvinder Kaur v. Godha Ram, ILR (1979) 1 P & H 147 ; AIR 1979 P & H 76. The question of law referred to the Division Bench was as follows (at page 77 of AIR 1979 P & H) :

'Whether revision lies against an order passed under Order 26, Rule 9, of the Code of Civil Procedure refusing to appoint a local Commissioner ?'

14. It was remarked (at page 78 of AIR 1979 P & H) :

'Adverting to the case law, reference may be made to Goverdhan Dass Gopi Nath's case [1976] 78 PLR 146, the only judgment on which reliance had been placed by Mr. Sarin and which decision necessitated the reference to the larger Bench. In view of our aforesaid discussion, we are, with utmost respect, unable to agree with the view taken in that decision. The learned judge, on the basis of the judgment of the Supreme Court in Major S.S. Khanna v. Brig F.J. Dhillon, AIR 1964 SC 497, and a Full Bench judgment of this court in Sadhu Ram Bali Ram v. Ghansham Dass Madan Lal, AIR 1975 P & H 174, arrived at the conclusion that the order rejecting the application of the defendant for examining two witnesses residing in Bombay on commission falls within the expression 'case decided.'

As has already been observed in the earlier part of the judgment, Major S.S. Khanna's case, AIR 1964 SC 497, stands explained by their Lordships of the Supreme Court in Baldevdas Shivlal's case, AIR 1970 SC 406, and in view of the test laid down therein, the order of the court should result in adjudication of some right or obligation of the parties in controversy during the course of a suit or other proceeding. The order declining to issue a commission of the type mentioned in Goverdhan Dass Gopi Nath's case [1976] 78 PLR 146, does not satisfy that test. It may further be observed that the facts of Sadhu Ram Bali Ram's case, AIR 1975 P & H 174, were different as in that case the onus of an issue had been wrongly placed and while deciding that question, it was held that such an order would be revisable.'

15. In view of the above, it will have to be held that Dhana Singh's case (CR No. 372 of 1964--August 26, 1966) was also overruled.

16. Learned counsel for the petitioner has also relied upon Tara Sarup v. Piara Singh Gurdial Singh [1984] 86 PLR 605, in which an order refusing to issue commission for examination of the witnesses was challenged in revision. It was remarked that the impugned order was open to challenge in revision under Section 115 of the Code. In that case, reliance was placed upon Goverdhan Dass Gopi Nath's case [1976] 78 PLR 146. However, as noticed earlier, that case had been overruled in Harvinder Kaur's case [1979] ILR 1979 (1) P & H 147 ; AIR 1979 P & H 76. In that case, reliance was also placed upon a judgment rendered by R. S. Narula C. J. which is reported as Pritam Singh v. Smt. Vidya [1976] 78 PLR 877. In that case, which was also against an order refusing to issue commission for the examination of the witnesses, it was remarked :

'Refusal to issue commission prayed for in this case amounts to clear denial of justice and is likely to result in manifest injury to the plaintiff. Interference in exercise of revisional juridiction with an order of this type is the duty of the court. From whatever angle the matter may be looked at, the minimum that can be said is that the learned Subordinate Judge has committed material illegality and irregularity in the exercise of his jurisdiction under Order 26, Rule 4, of the Code of Civil Procedure in declining to grant the plaintiff's application. In a case of this type, even if it could be held that the decision of the trial court is not a case decided 'within the meaning of Section 115 of the Code, I would have treated this petition as one under Article 227 of the Constitution and would have reversed the order of the trial court in the exercise of this court's constitutional jurisdiction under that provision of law. I have, therefore, no hesitation in repelling the preliminary objection of the learned counsel for the respondents.'

17. The above judgment does not help the petitioner. The question whether revision is maintainable or not against such an order was not finally decided in that case.

18. Another thing to be noted is that both in Tara Samp's case, [1984] 86 PLR 605 and Pritam Singh's case [1976] 78 PLR 877, the witnesses were residing at a distance of more than 200 miles. In 1976, Rule 19 of Order 16 of the Civil Procedure Code was amended. The amended provision reads as follows :

'No one shall be ordered to attend in person to give evidence unless he resides-

(a) within the local limits of the court's ordinary 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 for five-sixths of the distance between the place where he resides and the place where the court is situate) less than five hundred kilometres 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.'

19. Thus, if the place from where the witness is to be summoned is connected by air with the place where the court is situated, the witness can be ordered to attend in person. In the present case, it is not disputed that the two places are connected by air. Thus, I fail to understand how the court has acted illegally or with material irregularity if it ordered the witnesses to attend the court in person. In Civil Revision No. 1944 of 1984 (LIC of India v. Smt. Tripta Devi [1987] 62 Comp Cas 352 (P & H) (infra)), also the Life Insurance Corporation wanted to examine three witnesses who were residing in Hong Kong and applied to the trial court for issuance of a Commission under Order 26, Rule 5, of the Civil Procedure Code. The trial court rejected the application on the ground that it was not expedient to examine the witnesses on commission. Feeling aggrieved, the Corporation came to this court in revision. G.C. Mital J. dismissed that revision petition and remarked as follows :

'After hearing the learned counsel for the parties, I am of the view that normally no revision lies to this court against the order of the trial court directing examination of witnesses on commission or declining the examination of witnesses on commission in view of the Division Bench judgment of this court in Smt. Harvinder Kaur v. Godha Ram, ILR (1979) 1 P & H 147 ; AIR 1979 P & H 76. However, this court has jurisdiction to interfere in revision in exceptional cases. The facts of the present case have not been shown to be exceptional for interference in revisional jurisdiction.'

20. I do not find any ground to distinguish that case from the present case. The facts of that case are practically similar to the present case. In that case also, the Corporation had repudiated the claim of the widow of the insured on the grounds similar to the grounds taken in the present case. The widow had filed the suit against the Corporation for the recovery of the amount payable under the policy.

21. The learned counsel for the petitioner argued that as there are contrary judgments of this court, the matter should be referred to the larger Bench. In view of the observations made by a Division Bench of this court in Harvinder Kaur's case [1979] ILR 1979 1 P&H; 147 ; AIR 1979 P & H 76, I do not think it necessary to refer the matter to a larger Bench.

22. For the foregoing reasons, it is held that I do not find that the learned trial court has acted illegally or with material irregularity in dismissing the applications of the Corporation for examination of the witnesseson interrogatories or on commission. I also do not find that it is one of the exceptional cases in which the court should exercise its revisional powers. In Tarn Sarup's case [1984] 86 PLR 605, the petitioner had undertaken to incur all expenses of the commission for recording the evidence. In the present case, no such offer has been made. The plaintiff is a widow. It is not clear on the file if she has sufficient means to engage counsel at the places where the witnesses are residing. The Corporation is not a poor litigant. In case the Corporation wins the case, it would be entitled to the costs of the litigation if the court so orders. Thus the petitioner will not suffer any hardship if the witnesses are ordered to attend the court in person while the plaintiff is likely to face hardship if the commission for recording the evidence is issued. As noticed earlier, no party is entitled as of right to examine its witnesses on interrogatories.

23. Before closing, I may quote here Managing Director (MIG) Hindustan Aeronautics Ltd. v. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd., AIR 1973 SC 76, wherein their Lordships remarked (at page 77) :

'In our opinion, the High Court had no jurisdiction to interfere with the order of the first appellate court. It is not the conclusion of the High Court that the first appellate court had no jurisdiction to make the order that it made. The order of the first appellate court may be right or wrong ; may be in accordance with law ; or may not be in accordance with law ; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Civil Procedure Code.'

24. Hence, without deciding the question whether in all such cases a revision petition is maintainable or not, it is held that, in the circumstances of the present case, the impugned orders are not liable to be interfered with in revision. Both the petitions accordingly fail and the same are dismissed with no order as to costs.


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