- Bookmark
- Share
- CaseIQ
Pramod Saraswat v. Ashok Kumar Saraswat
Factual and Procedural Background
This revision application under Section 115 of the Civil Procedure Code challenged the order dated 30th May 1981 of the Court of the 1st Additional District Judge, Allahabad, which refused the applicant wife's prayer to have three witnesses examined on commission during the trial of a divorce petition filed by the opposite-party husband. The three witnesses named were Sri Arvind Nath Vashisht, Smt. Aruna Vashisht and Smt. Prakash Vashisht, who allegedly resided at Dehradun, a place more than 500 kilometres from Allahabad.
The applicant had earlier been granted Rs. 1,500 under Section 24 of the Hindu Marriage Act towards defence expenses (out of a claimed Rs. 5,000), of which Rs. 1,000 was claimed for summoning evidence from Dehradun; the order granting expenses made some allowance for travelling and “something on the witnesses.” The applicant did not seek maintenance pendente lite; she was employed and earned about Rs. 600 per month.
The District Judge rejected the application for commission on grounds that the supporting affidavit failed to disclose reasons why statements should be taken on commission, that residence alone (about 600 km away) was not sufficient, that the applicant had not shown the witnesses' evidence was necessary in the interest of justice, and that the witnesses were under the applicant's control and therefore could be summoned or would attend without commission.
Legal Issues Presented
- Whether the impugned order refusing examination of the three witnesses on commission is a "case which has been decided" within the meaning of Section 115 of the Civil P.C (and hence whether revision under Section 115 is maintainable).
- Whether the High Court should exercise its supervisory jurisdiction under Article 227 of the Constitution to set aside the impugned order on the ground that it is illegal or unjust.
- Whether, under Order 26 Rule 4 read with Rule 19 of Order XVI of the Civil P.C, a commission should have been issued for examination of witnesses who cannot be ordered to attend in person because they reside beyond the distances prescribed by Rule 19 — i.e., whether examination of these witnesses is "necessary in the interest of justice."
- Procedural issue arising from Rule 3-A of Order XVIII: the consequence if the applicant herself intends to be a witness (i.e., the requirement that a party who wishes to be a witness must give evidence before other witnesses in his/her favour unless the court permits otherwise).
Arguments of the Parties
Opposite-Party (Petitioner-Husband) — Mr. K. N. Tripathi
- The order refusing examination on commission is purely procedural and does not decide any case or adjudicate rights; therefore revision under Section 115 cannot be invoked against it.
- The order did not prevent the applicant from producing the witnesses at trial; the only question was the venue (Allahabad or Dehradun), which does not affect substantive rights.
- The names of the three witnesses were not filed in compliance with Rule 1 of Order XVI; they were first disclosed in the affidavit supporting the application for commission.
- The three witnesses are closely related to the applicant (one is her cousin, another his wife, and the third the applicant's mother) and thus are under the applicant's control; they could be expected to come voluntarily and did not require commission.
- For effective cross-examination the petitioner-husband's presence at Dehradun would be indispensable, and there was an asserted danger to his life at Dehradun or Rishikesh, implying risk if he were to attend there for cross-examination.
Applicant (Wife) — Mr. K. L. Grover
- Under the Explanation to Section 115 (as amended by the Code of Civil Procedure Amendment Act, 1976) the phrase “any case which has been decided” includes any order deciding an issue in the course of a suit; the applicant initially argued this broadened scope but acknowledged the position was affected by Uttar Pradesh's own amendment.
- Invoked the High Court's jurisdiction under Article 227 for relief against the alleged illegality of the impugned order.
- Reliance on Order 26 Rule 4 and the proviso to Rule 19 of Order XVI: where a person cannot be ordered to attend in person, a commission shall be issued if his evidence is necessary in the interest of justice.
- Pointed out that the names of the first two witnesses appear in the written statement and that the witnesses are closely related and acquainted with the facts in issue; argued it would be difficult to say their evidence was not necessary unless material showed they knew nothing about the case.
- Asserted the party's right to choose witnesses; contended the trial court should decide from the record whether the examination of these witnesses was necessary in the interest of justice rather than reject the application solely because the supporting affidavit did not state additional reasons.
- When informed of Rule 3-A of Order XVIII, counsel acknowledged the applicant herself would be a witness in the case.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Aidal Singh v. Karan Singh, AIR 1957 All 414 (Full Bench) | Illustration of the scope of Article 227: that the High Court's power under Article 227 is both judicial and administrative and may be exercised suo motu, but the breadth of the power restricts occasions for its exercise. | The court cited this authority to show that although Article 227 can be invoked to correct illegality, its wide amplitude means the High Court should only interfere where an order is sufficiently illegal or unjust to warrant such intervention; this principle informed the threshold inquiry whether to exercise Article 227 in the present case. |
Court's Reasoning and Analysis
The Court proceeded in a stepwise manner:
- Maintainability under Section 115: The Court examined whether the impugned order amounted to "any case which has been decided" within the meaning of Section 115 as amended. It noted that the Explanation to Section 115, as amended by the Code of Civil Procedure (U.P. Amendment) Act, 1978, reads: “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 court observed that the words “any order made” are not present in the U.P. Explanation and concluded that the impugned order refusing commission was not an order deciding an issue; therefore, revision under Section 115 was difficult to sustain and ultimately held the revision under Section 115 not maintainable.
- Invocation of Article 227: Confronted with non-maintainability under Section 115, counsel for the applicant urged the exercise of the High Court's supervisory jurisdiction under Article 227. The Court acknowledged the authority that Article 227 confers both judicial and administrative power (citing Aidal Singh v. Karan Singh) but emphasised that the breadth of Article 227 limits the occasions where it should be exercised. Thus, the central question became whether the impugned order was so illegal or unjust as to warrant interference under Article 227.
- Statutory framework for commission: The Court examined Rule 19 of Order XVI (which prescribes distances and circumstances where a witness cannot be ordered to attend in person) and Order 26 Rule 4 (which permits issuing a commission to examine any person resident beyond the court's local limits and provides that where under Rule 19 a person cannot be ordered to attend, a commission shall be issued if his evidence is necessary in the interest of justice). The Court recognized that if the examination of a witness is necessary in the interest of justice, the court should ordinarily issue a commission.
- Assessment of the material: The Court considered whether the trial court's reasons for refusing commission were proper. The trial court had rejected the application because the supporting affidavit did not set out reasons why examination on commission was required, because mere residence at a distant place was deemed insufficient, and because the witnesses were under the applicant's control. The High Court found these were not proper considerations in the circumstances: the first two witnesses were mentioned in the written statement, the third was the applicant's mother, and all three were closely related and likely acquainted with facts in issue. The court held that absent material demonstrating that the witnesses knew nothing relevant, it would be difficult to conclude their evidence was unnecessary in the interest of justice.
- Procedural safeguard (Rule 3-A of Order XVIII): The Court observed Rule 3-A of Order XVIII which requires that where a party wishes to give evidence himself/herself, that party must do so before any other witnesses in his/her favour are examined unless the court permits otherwise for recorded reasons. When the applicant's counsel confirmed that the applicant would herself be a witness, the High Court used this fact to structure conditional relief.
- Disposition by conditioning relief: Balancing these considerations, the Court concluded that interference under Article 227 was warranted to allow the applicant's request for commission, but subject to conditions designed to protect procedural fairness and the petitioner's rights on cross-examination. The conditions required the applicant to give her own evidence (and any other witnesses she wished to examine at Allahabad) before a commission would be issued. If, after giving such evidence, the applicant requested commission, the trial court was to forward the entire record to the District Judge, Dehradun, who would examine the witnesses (or assign the task to a competent court) and return the record promptly. The Court also allowed the applicant the option of examining those witnesses at Allahabad before closing her evidence.
Holding and Implications
Holding:
The revision under Section 115 of the Civil P.C. is dismissed as not maintainable; however, in exercise of its powers under Article 227 of the Constitution the High Court allowed the applicant wife's application for issue of a commission for the examination of the three named witnesses at Dehradun, subject to specified conditions (the applicant to give her evidence and any other witnesses she wishes for at Allahabad first; thereafter the trial court to issue commission and transmit the record to Dehradun for examination).
Implications (direct effects and scope):
- The immediate practical effect is that the trial court (1st Additional District Judge, Allahabad) is directed to follow the procedure laid down by the High Court: (a) the applicant must first examine herself (and any other witnesses she wishes to call at Allahabad), and (b) if she then requests commission, the trial court shall issue a commission, send the record to the District Judge, Dehradun, for examination of the specified witnesses and obtain prompt return of the record.
- The applicant retains the option of examining those three witnesses at Allahabad before closing her evidence after she has given her own testimony.
- The parties were ordered to bear their own costs before the High Court.
- The Court did not purport to lay down any novel legal principle or broad precedent beyond applying established rules (Order XVI Rule 19; Order XXVI Rule 4; Order XVIII Rule 3-A) and its supervisory jurisdiction under Article 227; the decision addresses the specific procedural dispute and prescribes conditional relief in the interests of a fair trial rather than creating a general rule of wider application.
Order accordingly.
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.
2. 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.”
3. 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. 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 the applicant'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.
4. 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.
5. 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 surely did not affect the rights of the parties in any manner.
6. 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 Uttar 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.
7. 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.
8. The question which, therefore, arises in this case is whether the impugned order is so illegal and unjust as to warrant interference under Art. 227 of the Constitution.
9. 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.
10. 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.
11. 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.
12. On being questioned about this. Mr. Grover for the applicant stated that the applicant would be a witness in the case.
13. 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 to petition, and shall return the record to the court of the 1st Additional District Judge, Allahabad, as soon as the witnesses are examined.
14. 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.
15. 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.
16. The parties shall bear their own costs in this Court.
17. Order accordingly.
Alert