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Amar Singh Vs. Hans Raj Sachdeva and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 466 of 1980
Judge
Reported inAIR1981Delhi224; 20(1981)DLT17; 1981RLR515
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 - Order 16, Rule 1
AppellantAmar Singh
RespondentHans Raj Sachdeva and ors.
Advocates: R.S. Kohli,; Gulshan Sapra and Jagdeep Kishore, Advs
Excerpt:
it was ruled that where the court had closed the evidence of the plaintiff without giving any valid reason except that the list of witnesses was not filed by the plaintiff, the order passed by the court would be without jurisdiction. - .....rules i and i a of the code of civil procedure as substituted by act 104 of 1976 are as under :- 'list of witnesses and summons to witnesses : 1(1) on or before such date as the court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in court. (2) a party desirous of obtaining any summons for the attendance of any person shall file in court an application stating therein the purpose for which the witness is proposed to be summoned. (3) the court may, for reasons to be recorded, permit a party to call, whether by summoning through court or otherwise, any witness.....
Judgment:

Sultan Singh, J.

(1) The plaintiff-petitioner filed the suit for specific performance of an agreement to sell. Issues were framed on 10th November, 1978 and by an order dated 15th May, 1979 the suit was adjourned to 8th August, 1979 for plaintiff's evidence on which date the suit was adjourned for plaintiff's evidence to 3rd October, 1979. The Presiding Officer was on leave on 3rd October, 1979. The suit was adjourned for proper order to 10th October, 1979 on which date 15th January, 1980 was fixed for plaintiff's evidence.

(2) Order 16 rules I and I A of the Code of Civil Procedure as substituted by Act 104 of 1976 are as under :-

'List of witnesses and summons to Witnesses : 1(1) On or before such date as the court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in court. (2) A party desirous of obtaining any summons for the attendance of any person shall file in court an application stating therein the purpose for which the witness is proposed to be summoned. (3) The court may, for reasons to be recorded, permit a party to call, whether by summoning through court or otherwise, any witness other than those whose names appear in the list referred to in subrules ( 1 ) if such party shows sufficient cause for the omission to mention the name of such witness in the said list. (4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the court or to such officer as may be appointed by the court in this behalf: I (A) Production of witnesses without summons : Subject to the provisions of sub-rule (3) of rule I, any party to the suit may, without applying for summons under rule I, bring any witness to give evidence or to produce documents.' Under rule I the plaintiff is required to file a list of witnesses whom he proposes to call and obtain summonses for their attendance in court. In other words, if a party does not want to obtain the summonses for the attendance of his witnesses in court he may not include the names of such witnesses in the list to be filled under Order 16 rule 1 (1) of the Code. Under sub-rule (2) the party is required to state the purpose for which the witness is proposed to be summoned in his application for summoning witnesses. Sub-rule (3) further permits a party to call witnesses not included in the said list, if sufficient cause is shown. Rule 1A of Order 16 of the Code further permits a party to produce a witness without applying for summons for his attendance. Although this rule is subject to sub-rule (3) of rule I the plaintiff or defendant is entitled to examine a witness including himself without applying for summons for his attendance. In other worder, it seems to me that if a party to the litigation desires to examine himself or any of his witnesses without applying for summonses for his attendance in court he can do so under rule I A even if the name of such party or his witness is not included in the list required to be filed under Order 16 Rule 1(1) of the Code. Under the amended Rules I and I A of Order 16 of the Code, lam, thereforee, of the view that the court is bound to record the statement of a witness including a party not included in the list of witnesses if such a witness is present before the court. The impugned order does not give any reason for closing the plaintiff's evidence except that list was not filed by him. This is contrary to law and impugned order is without jurisdiction.

(3) It is also submitted on behalf of the respondents that the plaintiff has been delaying the suit. The suit was filed in February, 1976 but the plaintiff states that the defendants have been delaying the progress of the suit as they filed their written statement after the expiry of more than 19 months and thereafter defendant No. 1 was ordered to be proceeded ex parte and subsequently he made an application for setting aside the order proceeding exparte agai(r)it him. Under these circumstances, it does not appear that the plaintiff himself was delaying the disposal of the suit. On the contrary it appears that the suit has been delayed by the defendants. The impugned order is without jurisdiction and I set aside the same.

(4) Mr. Kohli states that he wants to examine himself besides other witnesses. After hearing the counsel for the parties I allow the petitioner to move an application under Order 16 rule 1 (3) of the Code on or before the next date of hearing seeking permission to produce other witnesses, if any, after obtaining the summonses for their attendance. If the trial court permits him to produce such witnesses he may obtain summonses for their attendance otherwise the petitioner would examine his witnesses including himself without obtaining any summonses for their appearance and the court will record their statements. Parties are directed to appear before the trial court on 7th May, 1981 on which date the plaintiff may file the application seeking premission to produce other witnesses as observed above and the court may also fix a fresh date for plaintiff's evidence. No order as to costs.


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