1 12 S.B. CIVIL WRIT PETITION NO.1530/2009. Pankaj Sharma Vs. Mridu Mrignalini Date of Order :: 2nd March 2009. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. N.L. Joshi, for the petitioner. ..... BY THE COURT: Though listed in Court No.4, learned counsel for the petitioner has made a mention stating urgency. Having heard the learned counsel for the petitioner and having perused the impugned order dated 24.01.2009 (Annex.5) as passed by the Additional District Judge, Anoopgarh in Matrimonial Case No. 34/2005 rejecting the prayer of the petitioner-husband to have the respondent wife examined by a Medical Board, this Court is unable to find any jurisdictional error resulting in failure of justice so as to call for interference in the writ jurisdiction. From the material placed on record and the submissions made by the learned counsel for the petitioner it is borne out that the petitioner-husband has filed a petition for dissolution of marriage allegedly on the ground of cruelty and so also that the respondent-wife was suffering from Tuberculosis of Uterus before marriage and the fact was concealed. The petition for dissolution of marriage as moved by the 2 petitioner has been put to trial and therein, on 01.06.2006, the applicant's witness Dr. Roopam Kalra was examined who was indeed paid an amount of Rs. 1,400/- towards expenses. On that date, the Court noticed that the bailable warrants issued to other witnesses, namely, Dr. Ashok Ahuja and Dr. P.K. Sareen, were not returned served or unserved; and directed issuance of the fresh warrants without process fees but then, directed the petitioner-applicant to deposit an amount of Rs. 6,000/- towards expenses of these two witnesses that was to be adjusted upon the appearance of the witnesses. The margin note on the order-sheet (Annex.1), apart from recording the receipt from the said witness Dr. Roopam Kalra dated 01.06.2006, also states about bailable warrants having been issued on 03.06.2006 but immediately thereafter it has been mentioned that expenses having not been deposited, bailable warrants were not issued. The learned Trial Court in its order dated 07.08.2006 observed that the applicant failed to take steps for summoning the witnesses and, therefore, proceeded to close down their summoning. On that date, the applicant moved another application, purportedly under Order XXVI Rule 10-A of the Code of Civil Procedure read with Section 45 of the Evidence Act, seeking directions for examination of the non-applicant- wife by a Medical Board. The application so moved by the 3 petitioner-applicant has been rejected by the impugned order dated 24.01.2009 essentially on the considerations that the petitioner failed to deposit the amount of Rs.6,000/- as required by the order dated 01.06.2006 and thereupon summoning of the witnesses was closed. The Court has also noticed that AW-3 Dr. Roopam Kalra has given the evidence in relation to the report Ex.P/6 and, in the circumstances, has not found any justification for constitution of the Medical Board. It is submitted on behalf of the petitioner that the impugned order remains contrary to the requirements of extending adequate opportunity to a party concerned to prove his case; and that the petitioner has been conducting his case bona fide and the witnesses in question were indeed earlier ordered to be summoned by bailable warrants and upon such bailable warrants having not received back served or unserved, the same were ordered to be issued afresh. It is contended that even if the amount of Rs. 6,000/- was not deposited by the petitioner, in the circumstances of the case, the petitioner could have been put to terms for payment upon the witnesses appearing; and the fact remains that the petitioner paid the requisite amount of Rs. 1,400/- to the witness AW-3 Dr. Roopam Kalra as noticed on 01.06.2006. Learned counsel for the petitioner submitted that in any case, the application as moved by the petitioner for constitution of 4 Medical Board ought to have been allowed looking to the overall facts and circumstances of the case and more particularly the question involved and the fact that the evidence of the petitioner was even otherwise going on and was not closed by the learned Trial Court. Having given a thoughtful consideration to the entire matter, this Court is unable to find a case for interference in the writ jurisdiction on the submissions made by the learned counsel for the petitioner. It does appear from the contents of the order dated 01.06.2006 that the said witnesses, Dr. Ashok Ahuja and Dr. P.K. Sareen, were indeed summoned and even bailable warrants were issued in their relation and, for having not returned served or unserved, the bailable warrants were ordered to be issued afresh without the petitioner being subjected to file process fees. It is also noticed that the other witness AW-3 Dr. Roopam Kalra was indeed served and appeared before the Court and was examined and was, of course, paid an amount of Rs.1,400/- by the petitioner. But then, all said and done, the fact remains that by the order order dated 01.06.2006, the Trial Court, chose to put a condition that the petitioner would deposit an amount of Rs.6,000/- that would be adjusted after appearance of the witnesses. Once an order was passed by the Court, the 5 petitioner was required to comply; and there was no reason that the petitioner chose not to comply with the same; and the order as passed on 07.08.2006, closing down the summoning of the said witnesses, remains unexceptionable in the given circumstances. It has been pointed out during the course of submissions that the said witnesses Dr. Ashok Ahuja and Dr. P.K. Sareen were sought to be summoned as they had earlier examined the respondent-wife. However, when their summoning was closed down and looking to all the circumstances including the fact that the evidence of one of the witnesses AW-3 Dr.Roopam Kalra has been adduced with reference to the report Ex. P/6, if the learned Trial Court has not found it just and proper to constitute a Medical Board and to have its report after getting the respondent-wife examined, the order cannot be said to be suffering from any jurisdictional error or leading to manifest failure of justice. The mere fact that the plaintiff's evidence had not as such been closed by the learned Trial Court does not make out a case that for this reason alone, the application as moved by the petitioner be granted so as to subject the respondent- wife to examination by the Medical Board. There is no force in this writ petition and the same stands rejected in limine. 6 (DINESH MAHESHWARI), J. Mohan/