ORDER:- The petitioner who was married to the respondent on 3-2-1972 filed an application on 25-3-1972 under Sec. 12 of the Hindu Marriage Act in the court of the District Judge, Jammu for a decree annulling the marriage on the ground that the respondent was a lunatic at the time of the marriage and continued to be so on the date the presentation of the petition. The allegation regarding lunacy was denied by the respondent in the written objections filed him through his guardian. On 28-8-1973 court framed the following issues in the petition: -

1/- Whether the respondent was a lunatic on the date of the man and continued to be so at the time of the presentation of the petition? O. P, P.

2/- Whether the consent of the petitioner was obtained by fraud? O. P. P,

3/- To what relief is the plaintiff entitled? O. P. P.

2. The petitioner was asked to lead evidence on these issues. Some of the witnesses for the petitioner appeared before the court below whose statements were recorded. On 28-8-1973 the petitioner made an application before the court below that the respondent was posted at Srinagar but on account of his lunacy he had left the place of his posting and became violent. A prayer was made in this application that the Advocate for the respondent may be ordered to produce the respondent in person before the court and the court may order his examination by a medical expert. On this application the counsel for the respondent was asked by the court whether he would like to produce the respondent in the court. Mr. R. P. Bakshi, counsel for the respondent, declined to produce the respondent in the court whereupon the court vide its order dated 6-11-1973 directed the petitioner to lead further evidence. The court recorded the fact of Mr. Bakshi having refused to produce the respondent in the court for being medically examined but did not assign any reason whatsover for not directing the respondent to appear in the court for being medically examined. This order of the learned District Judge is the subject matter of this revision application.

3. The sole question therefore which arises for consideration is whether the court below should have directed the respondent to appear in person in the court and whether he could be asked to submit to a medical examination.

4. Under Order 3 Rule 1 C. P. C. a party can appear through counsel or through an authorised agent unless of course the court directs otherwise. This provision clearly gives the power to the court to direct personal appearance of a party if the circumstances of the case so justify. The issue under trial before the court below was whether the respondent was lunatic at the time of the marriage and whether he continued to be so. The lunacy of the respondent, therefore, was directly in issue before the court below. The personal appearance of the respondent under these circumstances in my opinion was extremely necessary to enable the court to have an opinion formed as to whether the respondent was a lunatic. The counsel for the respondent could not be conceded the right to produce or to refuse to produce the respondent in the court. The court was not required to ask the counsel whether he was prepared to produce the respondent in the court. What was required to be done was to direct the personal appearance of the respondent to enable the court to come to some conclusion, regarding his mental State, after putting questions to him. He could further be got examined medically and the evidence of the expert could be recorded even as a court witness to help the court to come to a correct conclusion. Such a power could be available to the court even under Sec. 151 of the C. P, C. It is not understandable as to how the learned District Judge thought fit to rest his judgment on the choice to be made by the counsel for the respondent.

5. Mr. Davinder Parihar who was appointed as guardian-ad-litem of the respondent in this court submitted that there w

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