SANTOSH KUMARI Vs. CHAMAN LAL

JUDGEMENT

(1.) 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

(2.) 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 treatment when this case came up for hearing before the trial court on 14 -12 -1976, the court observed that as the doctor was not available in Srinagar and the court could not wait for any longer, no further opportunity could be given for producing this witness. It therefore, closed the evidence of the defendant and posted the case for arguments. On the next date of hearing i. e on 31 - 2 -1976, the counsel for the defendant moved an application praying there in that as Dr. Khushoo was not available. Therefore one Dr. Preetam Singh may be summoned instead. The defendant invoked the Provisions of Section 151 C.P.C. 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 has come up in appeal before this court.

(3.) 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 interloutory order is not appealable under the Code Civil Procedure. It is however admitted that the appeal has been filed against an order made in preceding under the Hindu Marriage Act. Section 28 of the said Act provide that all decrees and order 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 exercise of its original civil jurisdiction are enforced and maybe 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&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 R. I. This view came up for reconsideration before the full bench of this court in case Mrs Seaubra Bagchi V. P.K Bagchi, A I. R. 1975 J&K 83. 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 there in 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 for 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 order passed under the Act and makes all kinds of orders passed under the Act appealable. In view of this authoritative pronouncement on the question it is not open for me to take a different view of the notice. 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.