Santosh Kumari vs Chaman Lal

Mian Jalal-ud-din, J.—This appeal is directed against the order of District Judge Baramulla dated 21-12-1976 allowing the application of

Defendant-Respondent to produce one Dr. Preetam Singh in the case.

It appears that in proceedings under the Hindu Marriage Act, the Defendant summoned Dr. Khushoo as his witness. This doctor was

summoned by the court on several occasions but every time it was reported that the doctor was ill and has gone to Delhi in connection with his

department. When this case came up (sic)or hearing before the trial Court on dt. 4-12-1976, the court observed that (sic) the doctor was not

available in (sic)inagar and the court could not wait for any longer, no further opportunity could be given for producing this witness. It therefore

closed (sic)e evidence of the Defendant and (sic)sted the case for arguments. On the next date of hearing i.e. on 4-12-1976, the counsel for the

Defendant moved an application praying wherein that as Dr. Khushoo was not available therefore one Dr. Preetam singh may be summoned

instead the Defendant invoked the provisions (sic)Section 151, CPC to his aid. After hearing the arguments on this application, the court acceded

to the request of the Defendant, allowed the application and directed that Dr. Preetam Singh be summoned. Aggrieved by this order the Defendant

applicant) has come up in appeal fore this Court.

A preliminary objection has been raised by the learned Counsel appearing for the Respondent that the appeal is not competent. It was

contended that the order being an interlocutory order is not appealable under the Code of Civil Procedure. It is however admitted that the appeal

has been filed against an order made in proceedings under the Hindu Marriage Act. Section 28 of the said Act provides that all decrees and orders

made by the court in any proceedings under this Act shall be enforced in like manner as the decrees and orders of the court made in the exercise of

its original civil jurisdiction are enforced and may be appealed from under any law for the time being in force provided that there shall be no appeal

on the subject of costs only. This court has had an occasion to go into this question previously. The earlier view taken by this Court in AIR 1965 J

and K 88 was that all orders made under the Hindu Marriage Act were not appealable but only those orders passed under the Act would be

appealable which fell within the ambit of Order 43, Rule 1. This view came up for reconsideration before the Full Bench of this Court in case Mrs.

Shubra Bagchi v. P.K. Bagchi AIR 1975 J and K 83 (FB). His Lordship Ali C.J. as he then was delivering the judgment on behalf of the Court

observed that the language of Section 28 was clear enough to indicate that a right of appeal is expressly conferred against the decree and orders

mentioned therein and there is no justification for putting a narrower interpretation merely to avoid multiplicity of proceedings. The intention of the

legislature is to equate decrees with interim orders so far as the matter of appeals or for that matter their enforceability is concerned. He proceeded

to observe that Section 28 does not distinguish the kind of orders passed under the Act and makes all kinds of orders passed under the Act

appealable. In view of this authoritative pronouncement on this question it is not open for me to take a different view of the matter. In fact I was a

party to this judgment. The controversy has been set at rest by the latest pronouncement on this proposition of law. The preliminary objection is

therefore overruled and the appeal is held to be competent.

Coming to the merits of the case I am of the view that the learned court below has not passed the impugned order without jurisdiction. It is true

that there is no express provision of law in the Code which enables the court to give further time to a party to produce his evidence alter the party

has closed its evidence. The only appropriate section which, in the circumstances can be invoked in such a case is Section 151 of the CPC which

provides that the court may under its inherent powers make such orders as may be necessary for the ends of justice.

In the present case it is noticed that Dr. Khushoo who was summoned by the Defendant could not attend the court because of the

circumstances explained before the Court. Record however reveals that there is also a certificate issued by Dr. Preetam Singh which the Defendant

has produced and is on the record. In these circumstances the Defendant sought leave of the Court to produce this witness as a substitute for Dr.

Khushoo. The only provision of law which in my opinion enables the court to allow the Defendant to examine Dr. Preetam Singh is Section 151 of

the CPC in this view of mine I am fortified by the observations made in Naganath v. Khandaba Balaba Misal AIR 1961 Mys 101. According to

this authority the court has got power to review an interlocutory order relating to the production of evidence.

In view of all this I am disposed to hold that the order passed by the trial Court does not suffer from any legal infirmity. There is no force in this

appeal which is hereby dismissed. I leave the parties to bear their own costs.