CR No.3854 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CR No.3854 of 2009 (O&M) DATE OF DECISION: 26.03.2010 **** Hari Singh . . . . Petitioner VS. Harchand Singh and another . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.K.S. Boparai, Advocate for the petitioner. None for the respondents. **** RAKESH KUMAR JAIN J. Petitioner has challenged order dated 7.4.2009 passed by Civil Judge (Jr. Division) Ludhiana by which his application for seeking direction of the Court to the Civil Surgeon, Ludhiana for examining petitioner/plaintiff to determine his permanent disability and issuing a certificate accordingly has been dismissed. The brief facts of the case are that petitioner/plaintiff filed a suit for recovery of Rs.2 lac as damages along with interest @ 24% per annum out of which Rs.80,000/- has been claimed towards medical expenses and Rs.1,20,000/- has been claimed towards damage suffered, loss caused of avocation, mental and physical agony, hardship and torture on account of injuries suffered by the plaintiff at the hands of defendants/respondents for which plaintiff had registered CR No.3854 of 2009 (O&M) -2- a criminal case against defendants/respondents under Sections 325/323/506/34 of the Indian Penal Code (for short ‘IPC’) vide FIR No.83/1996 at Police Station Payal, District Ludhiana. The plaintiff was medico-legally examined by the Doctors of Christian Medical College and Hospital, Ludhiana on 8.7.1997. In the suit, issues were framed on 12.11.2001. While the evidence of the plaintiff was going on, he filed an application on 15.9.2008 for issuing appropriate directions to the Civil Surgeon, Ludhiana to assess permanent disability suffered by the plaintiff on account of injuries caused by the defendants and also to issue a necessary certificate of disability. The defendants filed reply to the application on 17.2.2009 contesting the application on various grounds. The learned trial Court vide its impugned order dated 7.4.2009 declined prayer of the plaintiff on the ground that plaintiff has to prove his case independently and cannot use the process of Court to collect evidence. It was further held that if the application is allowed as prayed for, it will amount to delegation of its power by the Court for collecting evidence in favour of the plaintiff. Learned counsel for the petitioner has vehemently argued that reasoning adopted by learned trial Court is per se erroneous because in the application filed by him, it has neither been pleaded that the powers of the Court be delegated to the Civil Surgeon nor any assistance of the Court has been sought for collecting evidence. It is submitted that the only prayer has been made before the Court below is for issuing a direction to the Civil Surgeon to assess his permanent disability because during the pendency of the suit the hospital would not issue a disability certificate. In support of his argument, learned counsel for the appellant has relied upon a decision of this Court in the case of “Kedar Nath and others Vs. Firm Hira Lal Bros. and CR No.3854 of 2009 (O&M) -3- another” 1975 PLR 250 and “Hajira Beevi and others Vs. Shamila P. Iqbal and another” AIR 2004 Kerala 240, to contend that this Court, in the exercise of its inherent jurisdiction under Section 151 of the Code of Civil Procedure, 1908 (for short ‘CPC’) in order to advance a cause of justice , can issue direction, which has been sought in the application by the petitioner. It is worthwhile to mention that during the pendency of the petition, the petitioner, who had earlier filed the application before the trial Court for the purpose of issuance of direction to the Civil Surgeon, Ludhiana for issuance of permanent disability certificate, had filed an application directly to the Civil Surgeon, Ludhiana on 12.1.2010 for the purpose of his examination and to grant certificate of permanent disability after charging the requisite fee. It is submitted that the said application was not even entertained by the Civil Surgeon, Ludhiana. The petitioner has placed on record the said application dated 12.1.2010 by way of CM No.3423-CII-2010. On the other hand, learned counsel for the respondents has argued that there is no provision either in the CPC or in the Evidence Act under which the present application could have been moved by the petitioner. It is submitted that if this procedure is allowed to prevail then there would be no end to such type of applications in which parties to the litigation would seek help of the Court for the purpose of collecting evidence. I have heard both learned counsel for the parties and have thoughtfully considered their rival contentions. CR No.3854 of 2009 (O&M) -4- Undoubtedly, the petitioner had made an innocuous prayer before the learned trial Court by way of application (Annexure P-2) that appropriate directions be issued to the Civil Surgeon, Ludhiana for examining the petitioner/plaintiff and to issue a certificate determining his disability. The application has been filed without referring to any provision of law. In reply, it has been mentioned by the defendants/respondents that the application has been filed at a belated stage; the plaintiff has not received any treatment from Civil Hospital, Ludhiana, therefore, Civil Surgeon, Ludhiana has no authority to issue any disability certificate and the plaintiff has already led his evidence as he has been examined and the present application has been filed to fill up the lacunas. The first question involved in this revision petition is as to whether there is any provision under which assistance of the Court can be sought for the purpose of obtaining the disability certificate as prayed for by the petitioner. In this regard, it would be worthwhile to mention that neither any specific provision from the Evidence Act nor from the CPC has been quoted by the learned counsel for the petitioner. He, however, has invoked the jurisdiction of this Court under Section 151 of the CPC to contend that in case where the circumstances are such, which are not covered by the express provision of the CPC, the provisions of Section 151 of the CPC can be invoked. In this regard, he refers to a Division Bench judgment of this Court in the case of Kedar Nath and others (supra), in which this Court has held as under: - “Held, that Section 151 undoubtedly confers inherent powers on the Court to make such orders as may be necessary for the ends of justice or to prevent abuse CR No.3854 of 2009 (O&M) -5- of the process of the Court. The Court is not helpless when circumstances, not covered by the express provisions of the Code, call for an order to promote the ends of justice, for no precise rules can be made by human agency which will exactly cover all conceivable and infinitely varying circumstances likely to arise in future. But the inherent power be invoked only in rare case, when clearly the ends of justice demand it.” Similarly, in the case of Hajira Beevi and others (supra) there was a dispute of paternity which could have been resolved by subjecting the party to the lis for DNA test. The power of the Court was disputed on the ground that nobody can be compelled to subject himself for DNA test but in the aforesaid case, it would held that it cannot be said that the Court has no power to order blood test or DNA test to be conducted. In the present case, the petitioner had not only applied to the trial Court for an appropriate order to direct the Civil Surgeon, Ludhiana to assess his permanent disability and to issue disability certificate but had also directly made a request to the Civil Surgeon, Ludhiana by way of application dated 12.1.2010 (Annexure P-5 on record) which has not been even entertained by the Civil Surgeon, Ludhiana. Thus, in these circumstances, where the petitioner has claimed damages on account of injuries having been inflicted upon him by the defendants/respondents in a case registered for grievous injuries under Section 325 IPC, I am of the opinion, by invoking the provisions of Section 151 of the CPC, directions could be issued to the Civil Surgeon, Ludhiana to constitute a board of Doctors to assess the CR No.3854 of 2009 (O&M) -6- permanent disability, if any, suffered by the petitioner and issue certificate accordingly. Thus, the impugned order is set aside and the present revision petition is allowed, though, without any order as to costs. (RAKESH KUMAR JAIN) 26.03.2010 JUDGE Vivek