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Satnam Transport Company and anr. Vs. Prakash Mal Surana - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 36 of 1980
Judge
Reported inAIR1981Raj75; 1980()WLN380
ActsCode of Civil Procedure (CPC) , 1908 - Order 16, Rule 1, 1A and 1(3)
AppellantSatnam Transport Company and anr.
RespondentPrakash Mal Surana
Appellant Advocate J.P. Joshi, Adv.
Respondent Advocate Parmatma Sharan and; R.P. Vyas, Advs.
DispositionRevision allowed
Cases ReferredBhonreylal v. Kunj Beharilal
Excerpt:
civil procedure code - order 16 rules 1 and 1a--list of witnesses not filed--court can permit a party to examine a witness produced by it after recording reasons if sufficient cause is shown--non filing of list or omission to mention names of witnesses does not deprive court of its power to examine witness.;even where no list of witnesses is filed, still the court has power to permit a party to examine any witness produced by it after recording reasons, if sufficient cause is shown for not filing the list. it is true that order 16, rule 1, cpc, does not conceive and contemplate a situation of non-filing of the list, but from that, it can not be said that the legislature intended to deprive the court of such an important power of examining evidence at the instance of a party without which.....orderm.c. jain, j. 1. this revision raises an important question of law as to the interpretation of order 16, rule 1 and rule 1a, c. p. c. it arises under the following circumstances: 2. the plaintiff prakashmal surana instituted a suit for arrears of rent and ejectment and also for the recovery of house-tax, electricity charges etc., against the defendant satnam transport company, through the managing partner smt. satnam malik, delhi gate, udaipur and beharilal, manager, satnam transport co. the suit for eviction was based on personal necessity of the disputed premises. the defendant resisted the suit and submitted the written statement on 23-3-1979. necessary issues arising from the pleadings, were framed. the plaintiff closed his evidence reserving right to adduce evidence in rebuttal.....
Judgment:
ORDER

M.C. Jain, J.

1. This revision raises an important question of law as to the interpretation of Order 16, Rule 1 and Rule 1A, C. P. C. It arises under the following circumstances:

2. The plaintiff Prakashmal Surana instituted a suit for arrears of rent and ejectment and also for the recovery of house-tax, electricity charges etc., against the defendant Satnam Transport Company, through the Managing Partner Smt. Satnam Malik, Delhi Gate, Udaipur and Beharilal, Manager, Satnam Transport Co. The suit for eviction was based on personal necessity of the disputed premises. The defendant resisted the suit and submitted the written statement on 23-3-1979. Necessary issues arising from the pleadings, were framed. The plaintiff closed his evidence reserving right to adduce evidence in rebuttal on 10-9-1979 and the case was posted for defendant's evidence on 27-10-1979. On that very day, that is, on 10-9-1979, the plaintiff submitted an application that the defendant has not filed any list of witnesses within fifteen days after framing of the issues under Order 16, Rule 1, C. P. C. and has been negligent and only the defendant can be examined in evidence. It was prayed that the case may be posted after a week for the statement of the defendant, so that the case can be disposed of within the month of September, 1979.

On 27-10-1979 on behalf of the defendant an application for adjournment, was moved on the ground that the defendant's counsel Shri J.P. Joshi bad to proceed to Delhi, as arguments in Urban Ceiling Case had begun in the Supreme Court. It was also stated in the application that the defendant's witnesses Shankarsingh Rathore (Sampatsingh appears to be mistake, as in earlier application name mentioned is Shankarsingh) and Ramchandra Sharma, are present. Thereafter, another application was moved on behalf of the defendant at about 3.30, p. m., on that very day, wherein it was stated that the case is fixed for defendant's evidence, but the defendant Mrs. Satnam Malik could not come from Udaipur on account of ill health. The statements of two witnesses Shankarsingh Rathore, Branch Manager, and Ramchandra Sharma, an employee of Satnam Transport Company, can be re-corded first and an order to that effect may be passed and the statements of the witnesses may be recorded. A reply to this application was filed by the plaintiff, in which an objection was raised that the provision of Order 16, Rule 1, C. P. C., is mandatory and as no list of witnesses has been filed by the defendant within fifteen days, the defendant has no right to examine the two witnesses. In case the court allows production of the witnesses in evidence, the provisions contained in Order 16, Rule 1, Sub-rules (1) and (3) and Order 16, Rule 1A, will be rendered nugatory. The defendant, thus, cannot examine any witness from her side. The learned Munsif City, Jodhpur, after hearing the arguments, allowed the objection of the plaintiff and rejected the defendant's application for recording the statements of the two witnesses. The learned Munsif ordered that only the statement of the defendant will be recorded. Dissatisfied with the order of the learned Munsif, the defendant has preferred this revision petition.

3. I have heard Shri T.P. Joshi, learned counsel for the defendant-petitioner, and Shri Parmatma Sharan, learned counsel for the plaintiff-non-petitioner, at length.

4. The defendant-petitioner has moved an application under Order 16, Rule 1, Sub-rule (3) read with Section 151, C. P. C., wherein it is stated that the counsel for the defendant-petitioner used to get instructions in the suit from Shri Shankarsingh Rathore, Manager of the Jodhpur Branch of Satnam Transport Company. Therefore, the defendant's counsel, after framing of the issues, contacted Shri. Shankarsingh Rathore and asked him to meet before 5th April, 1979. The defendant's counsel again tried to contact him on phone on 5-4-1979, but he was informed that Shri Shankarsingh Rathore had proceeded to Udaipur, from where he is supposed to go to Ahmedabad. In the facts and circumstances, the defendant's counsel could not contact Shankarsingh Rathore before 7th April, 1979, and could not file the list of the witnesses. It was also stated that the defendant's counsel was of the opinion that in view of judgment in Dalchand v. Ramakant (1971 Raj LW 416) the defendant-petitioner could get the witnesses examined without summoning them on the date when the evidence of the defendant is to be recorded. In view of holding such an opinion, the defendant's counsel did not think it proper to contact Smt. Satnam Malik on phone at Udaipur to get the names of the witnesses. Thus there was sufficient cause for not filing the list of witnesses and prayed that the defendant may be allowed to get the witnesses examined without summoning them on a date appointed by this Court. This application is accompanied with an affidavit of Shri Shankarsingh Rathore. Reply to the said application has not been filed, nor any counter-affidavit has been filed.

5. Shri J.P. Joshi, learned counsel for the petitioner, vehemently contended that the trial court has taken a very technical view of the provisions contained in Order 16, Rule 1, Sub-rules (1) and (3) and Rule 1A, C. P. C. Even when list of witnesses has not been filed, the witnesses, who were present on the date fixed for evidence, ought to have been examined by the court. Rule 1A should not have been given such a strict construction so as to deprive the party to get the evidence recorded of the witnesses, who have been brought by the party and are present in court He urged that the language of Sub-rule (3) of Rule 1, as now stands after 1976 amendment, is not couched in the negative form, but it is rather permissive. Even otherwise the procedural provision should be interpreted in an equitable and liberal manner, so as to advance the cause of justice and not hamper it. He submitted that the trend of decisions after the judgment in Tulsi Bai v. Chunilal, (AIR 1964 Raj 243 : 1964 Ray LW 253) shows that that decision lays down the principle relating to the provisions of Order 16, Rule 1, C. P. C, as then stood and applicable to the State of Rajasthan. He referred the latter decisions to support his contention.

6. Shri Parmatma Sharan, on the other baud submitted that latter decisions of this Court after decision in Tulsi Bai v. Chunilal's case (supra), turned on the rule as amended from lime to time by the High Court of Rajasthan. The relevant provisions of Order 16, Rule 1, as are in force at present after the amendment of the Code of Civil Procedure by Act No. 104 of 1976 enforced with effect from 1-2-1977, are identical to the Rule on which the decision in Tulsi Bai's case rests. The same interpretation should be put on the provisions contained in Order 16, Rule 1, Sub-rules (1) and (3) and Rule 1A, as was put in Tulsi Bai's case (supra), according to which the filing of the list of witnesses by the parties was mandatory and in the absence of the list of witnesses the parties have no right to examine any witness. Only such witnesses, whose names have been omitted in the list of witnesses, can be examined, if sufficient cause is shown for their omissions In the list of witnesses and the court can permit examinations of such witnesses after recording reasons. It was urged by Shri Parmatma Sharan, learned counsel for the plaintiff-non-petitioner that even if the party brings his witnesses, the statements of such witnesses cannot be recorded, as the provisions of Order 16, Rule 1A, has been subject to the provisions contained in Order 16, Rule 1, Sub-rule (3).

7. Before adverting to the controversy as to the interpretation of the provisions, of Order 16, Rule 1 Sub-rules (1) and (3) and Rule 1A, I may first advert to the scheme of the Code with regard to summoning and attendance of the witnesses. Under Section 30 of the Code of Civil Procedure, the court may at any time either of its own motion or on the application of any party, issue summons to persons, whose attendance is required, either to give evidence or to produce documents subject to such conditions and limitations as may be prescribed. Order 16 makes provisions for summoning and attendance of witnesses. Rule 1 of Order 16 deals with the list of witnesses and summons to witnesses and Rule 1A deals with production of witnesses without summons. I shall be dealing with these two rules in relation to the controversy raised before me. Rule 7 of Order 16 empowers the court to examine any person present in Court or requires to produce any document then and there in his possession or power. Rule 14 of Order 16 further empowers the Court to examine any person including a party to the suit and not called as a witness by a party to the suit, when it thinks necessary and the Court may, of its own motion, cause such person to be summoned as a witness to give evidence or to produce any document in his possession, on a day to be appointed, and may examine him as a witness or require him to produce such document. I may reproduce here Rule 1, Rule 1-A, Rule 7 and Rule 14 of Order 16 :--

'Order 16 -- Summoning and Attendance of witnesses:

Rule 1. List of witnesses and summons to witnesses.

(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 when they propose to call either to give evidence or to produce documents and obtain summons to such persons for their attendance in Court.

(2) A party desires 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 Sub-rule (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 he obtained by parties on an application to the Court or to such officer as may be appointed by the Court in this behalf.

Rule 1A. Production of witnesses without summons.

Subject to the provisions of Sub-rule (9) of the Rule 1, any party to the suit may, without applying for summons under Rule (1), bring any witness to give evidence or to produce documents. Rule 7. Power to require persons present in Court to give evidence or produce document.

Any person present in Court may be required by the court to give evidence or to produce any document then and there in his possession or power. Rule 14. Court may of its own accord summon as witnesses strangers to suit.

Subject to the provisions of this Code as to attendance and appearance and to any law for the time feeing in force, where the Court at any time thinks it necessary to examine any person, including a party to the suit arm not called as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence or to produce any document in his possession, on a day to be appointed, and may examine him as a witness or require him to produce such document.'

8. Sub-rule (1) of Rule 1 of Order 16 provides that the parties shall present a list of witnesses whom they propose to call either to give evidence or to produce documents, 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. Fifteen days is the outer limit fixed by the Legislature for submission of the list of witnesses after settlement of the issues. The court may even give lesser time for filing of the list of witnesses. Under Sub-rule (1) the court cannot appoint any date beyond fifteen days. Sub-rule (2) makes a provision that in case a party is desirous of obtaining any summons for the attendance of any person it shall file an application stating therein the purpose for which the witnesses are proposed to be summoned. Sub-rule (2) would be attracted when summons are obtained by the party. Sub-rule (3) provides that where the names of the witnesses have been omitted in the list submitted under Sub-rule (1), then the Court may permit a party to call those witnesses, if the party shows sufficient cause for the omission of the names of the witnesses, and while permitting the party to call such witnesses, the Court is required to record reasons, Rule 1A empowers a party to the suit to bring any witness to give evidence or to produce documents, without obtaining any summons, but this right has been subject to the provisions of Sub-rule (3) of Rule 1.

9. The question that arises for consideration is that where no list of witnesses had been filed whether a party can claim any protection under Sub-rule (3) of Rule 1, that is, whether a party can be permitted to call any witness or to produce any witness after showing sufficient cause for not filing the list? Where list has been filed and names of certain witnesses have not been included in the list, then certainly Sub-rule (8) is attracted and the Court is empowered to permit a party to call witnesses, if sufficient cause is shown for their non-inclusion in the list and the Court may grant permission after recording reasons. As regards the power of the Court, Rule 1 and Rule 1A how are to He interpreted, is a serious question, when the party does not file any list of witnesses. I may now consider the principles which guide the interpretation of procedural laws.

10. In Sangram Singh v. Election Tribunal, Kotah, (AIR 1955 SC 425), their Lordships of the Supreme Court observed as under:--

'Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and farther its ends, not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable, elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) less the very means designed for the furtherance of justice be used to frustrate it.'

'Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs. That proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso our laws of procedure should be construed, wherever that is reasonably possible in the light of that principle.'

11. In State of Gujarat v. Ramprakash P. Puri ((1970) 2 SCR 875) their Lordships stated :--

'Procedure has been described to be a hand-maid and not a mistress of law, intended to subserve and facilitate the cause of justice and not to govern or obstruct it. Like all rules of procedure, this rule demands a construction which would promote this cause.'

12. It is useful to quote the oft quoted passage of Lord Penzance in (1879) 4 AC 504):--

''Procedure is but the machinery of the law after all the channel and means whereby law is administered and justice reached. It strongly departs from its office when in place of facilitating, it is permitted to obstruct and even extinguish legal rights, and is thus made to govern when it ought to subserve.'

(Quoted from Aiyer's Manual of Law Terms and Phrases, 7th Edn. at page 644).

13. The following passage in Balwant Singh Bhagwansingh v. Firm Raj Singh Baldev Kishen, (AIR 1969 Punj and Har 197) is useful to read here:--

''Promptitude and despatch in the dispensation of justice is a desirable thing but not at the cost of justice. All rules or procedure are nothing but handmaids of justice. They cannot be construed in a manner which would hamper justice. As a general rule, evidence should never be shut out. The fullest opportunity should always be given to the parties to give evidence if the justice of the case requires it. It is immaterial if the original omission to give evidence or to deposit process-fee arises from negligence or carelessness. As observed by the Calcutta High Court in Bupendra Deb Haikut's case, AIR 1951 Cal 286, however negligent or careless may have been the first omission and how-ever late the proposed evidence, it should be allowed if that can be done without injustice to the other side. There is no injustice if the other side can be compensated by costs.'

14. The above principles should guide the courts, while interpreting the procedural laws. Too technical, too rigid and too strict a view is not required to be taken, unless the legislature completely deprives the Court from the exercise of the discretionary powers. The object of the legislature in introducing Rule 1 and Rule 1A appears to be speedy disposal of cases and it does not appear to be the object behind Rule 1 o deprive a party to examine witnesses, if he has failed to submit the list of witnesses.

15. By putting an interpretation that in the absence of list of witnesses no witness can be examined and the Court in powerless to permit a party to examine its witnesses, even when it shows sufficient cause for not filing the list of witnesses, it would amount to imposing procedural tyranny and throttling course of justice, which could not have been the intention of the legislature. When the courts have been conferred with powers to examine any witness present in court under Rule 7 or to examine or summon any witness under Rule 14, then in the light of the powers under Rules 7 and 14, Rule 1 is required to be interpreted. Rule 7 and Rule 14 clearly indicate that the courts primarily exist for dispensing real and substantial justice and if they are to impart only technical justice, the court will never require to examine any witness of their own accord. Powers under Rules 7 and 14 have only been conferred with a view to impart justice to the parties.

16. Rule 1 of Order 16, C. P. C., as applicable to Rajasthan, had long legislative history. From time to time there had been amendments in the Rules. In 1957 Rule 1 of Order 16 was as under in Rajas-than:--

'1 (i) On such date as the Court may appoint and not later than 30 days after the settlement of the issues, each party shall present in Court a list of witnesses whom it proposes to produce.

(ii) No party shall be permitted to produce witnesses other than those contained in the said list except with the permission of the Court and after showing good cause for the omission of the said witnesses from the list, the Court granting such permission shall record reasons for so doing.

(iii) On the application to the Court or to such officer as it appoints in this behalf, the parties may obtain summonses whose attendance is required in Court.

17. Thereafter, in 1960 the following proviso was added to Rule 1 (i)-

'Provided that a party giving evidence in rebuttal may file a supplementary list of witnesses with the permission of the Court not later than fifteen days from the date of closure of the evidence of the opponent.'

and Sub-rule (ii) was substituted by the following :--

'No party shall produce or obtain process to enforce the attendance of witnesses other than those contained in the list referred to in Sub-rule (1), except with the permission of the Court and after showing good cause for the same, and the Court granting or refusing such permission shall record reasons for so doing.' Thereafter on 19-11-1970 the word 'supplementary' was deleted from the proviso and in Sub-rule (ii) the words 'and after showing good cause for the same' were deleted, and Rule 1A was added. Thus Rule 1 and Rule 1A as they stand after 19-11-1970 were as under:--

'1. (i) on such date as the Court may appoint and not later than thirty days after the settlement of issues, each party shall present in Court a list of witnesses when it proposes to produce: (23-3-1961).

Provided that a party giving evidence in rebuttal may file a list of witnesses not later than fifteen days from the date of closure of the evidence of his opponent (19-11-1970).

(ii) No party shall produce or obtain process to enforce the attendance of witnesses other than those contained in the list referred to in Sub-rule (i), except will the permission of the Court and the Court granting or refusing such permission shall record reasons for so doing (23-3-1961 and 19-11-1973).

(iii) On the application to Court or to such officer as it appoints in this behalf the parties may obtain summonses for persons whose attendance is required in Court.

(iv) Where in accordance with the Proviso to Rule 8 of Order 16 a party has obtained summonses for any witnesses for service by himself or through his agent summonses for any such witnesses shall not unless specially ordered by the Court for reasons to be recorded in writing, be re-issued for service in the manner provided for the service of summons to a defendant' (25-7-1957 and 23-3-1961).'

'1A. Subject to the provisions of Sub-rule (ii) of Rule 1, any party to the suit may without applying for summons under Rule 1, bring any witness to give evidence or to produce document.' (19-11-1970)'.

18. In Baxiram v. Ashwani Kumar, (1965 Raj LW 111) his Lordship Jagat Narayan, J., as he then was, referred to the observations with regard to the amendment made by 1960 Notification effective from 1961 in Tulsi Bai's case (AIR 1964 Raj 243) (supra) and stated that they are wholly obiter and observed :--

'Not filing a list is in mathematical terms the same thing as filing a list containing no name of any witness and if it is considered necessary to be hyper-technical even in a procedural matter, a party can always be deemed to have filed such a list. The reason for the use of the word 'supplementary' appears to be that while framing the proviso the High Court was thinking of these cases in which the burden of proof of some issues lies on one party and the burden of other issues lies on the other. In such a case both parties are required to file their lists of witnesses when they wish to examine initially to discharge the burden which lies on them under the main Sub-rule (i) and to file further lists under the proviso and these further lists are referred to as supplementary lists.'

His Lordship further treated Sub-rule (ii) as also giving power to the Court to allow a party to produce witnesses despite the fact that it has failed to file a list under the main Sub-rule (1) or the proviso to it, as the case may be.

19. In Bhonreylal v. Kunj Beharilal, (AIR 1969 Raj 299 : 1969 Raj LW 1) Section 5 of the Limitation Act was extruded to the application in the form of presentation of list of witnesses. It was held that the court has got power to extend the period of limitation prescribed under Order 16, Rule 1, C. P. C. if it is satisfied that there was sufficient cause for not making such applications within the prescribed period.

20. The decision in Dalchand v. Ramakant (1971 Raj LW 416) noticed the amendments made in 1970 and it was observed in that case that the amendments made in the year 1970 in Order 16, Rule 1, C. P. C. are procedural and can be invoked in pending cases. Facing the difficulty that it cannot be said that the courts acted with illegality or material irregularity within the meaning of Section 115(c) in following Mst. Tulsi Bai's case (AIR 1964 Raj 243) (supra) adopted the clause that the parties may submit applications in subordinate courts praying for permission to produce or get summoned material witnesses and directed the subordinate-courts to decide these applications on merits. The Court appears to be of the opinion that under Sub-rule (2), the Court can grant or refuse permission for production of witnesses other than those contained in the list, after recording reasons.

21. In Bhanwar Singh v. Gir Raj Prasad, (1977 Raj LW 476: (AIR 1978 Raj 20) it was observed that the provisions of Order 16, Rule 1, C. P. C., as applicable to the State of Rajasthan, gives ample discretion to a court of law to give reasonable opportunity to a party who has failed to file the list of witnesses within the stipulated time.

22. Shri Parmatma Sharan cited two unreported decisions of this Court. In Civil Revn. No. 147 of 1979 Shimbhuram v. Lakha Ram (decided on September 7, 1979 (since Reported in AIR 1980 Raj 184), S.K. Mal Lodha, J., after reviewing the earlier decisions of this court observed as under:--

'In the case in hand, no list of wit-nesses was filed under Order XVI, Rule 1, C. P. C. No reasons were shown for not filing the list. Learned Munsif was not bound to examine Ghamandaram without showing any sufficient cause for the omission. The fact that witness was brought by the defendant with him for giving evidence, by itself, would not entitle the defendant to examine him either under Order XVI, Rule 1A or under Order XVI, Rule IA (Rajasthan) because ' the provisions of Order XVI, Rule 1A and Order XVI, Rule 1A (Rajasthan) are subject to the provisions of Sub-rule (3) of Rule 1 of Order XVI and Sub-rule (ii) of Rule 1 (Rajasthan) of Order XVI respectively. If 'not filing a list is in mathematical terms the same thing as filing a list containing no name of any witness' vide Baxiram's case (1965 Raj LW 111) then sufficient cause was required to be shown in regard to the omission of name of Ghamandaram. Thus, no ground for interference is made out.'

An argument was advanced that on account of misconception about the provisions of Order 16, Rule 1A, C. P. C., the defendant did not file any application showing sufficient cause for not filing the list so the Munsif may be directed to permit the defendant to examine the witnesses brought by him on filing the application in this regard, The learned Judge observed that such a request was not made to the Munsif at the time of the arguments before the order under revision was passed, nor any such ground was taken in the memo or revision. However, the learned Judge observed that it will be for the learned Munsif to consider, as and when such a request for the examination of the witness brought by the defendant is made in writing and thereafter to pass appropriate orders in this regard in accordance with law. It would appear from these observations that even where the list is not filed, an application can be moved for examination of a witness, if sufficient cause is shown. The evidence has not been fully shut out on account of non-presentation of the list of witnesses.

23. In Civil Revn. No. 81 of 1978 Babbo Lal v. Nahata Brothers (decided on 3-11-1979), the plaintiff did not file the list of witnesses within 30 days despite that one witness, namely, Murlidhar, was examined, as no objection was raised by the defendant. But when the plaintiffs wanted to examine another witness Rawat Ram, an objection was raised. The plaintiff, thereupon, presented an application that the statement of Rawat Ram may be recorded, as he was a material witness and his evidence was essential for the decision of the suit. The application of the plaintiffs was rejected and the plaintiffs went in revision, but the revision petition was dismissed and it was held that no sufficient cause for omission to file the list of witnesses for more than six years was shown by the plaintiffs and there is no justification for exercising powers under Order 16, Rule 7, C. P. C., in favour of the plaintiffs. This decision turns on the point that no sufficient cause was shown for omission to file the list of witnesses. It appears that the matter was contested by invoking Rule 7, and reliance was placed on Banmali Sashmal v. Naru Patra (ILR (1963) Cut 957), and in this connection it was observed that power under Order 16, Rule 7, C. P. C., in favour of a party can be exercised to do substantial justice and for the exercise of such power the Court must also take into consideration the laches and the reasons for the laches.

24. In Dalchand v. Ramakant (1971 Raj LW 416) (supra) his Lordship Chhangani, J., aptly stated that the court should give due weight to the need of securing speedy and pure justice but there is still greater imperative need of doing substantial justice to the parties by enabling them to obtain decision on merits, and the courts must have discretion so that they may strike a proper balance between the needs of prompt and expeditious disposal and the needs of determination of controversy on merits. While courts are certainly expected to disapprove, discourage and zealously prevent deliberate attempts at unnecessary prolongation of the cases as also carelessness or indifference to the diligent prosecution of cases they must do so within reasonable and permissible limits they should not avoid trials on merits in a light hearted manner by adopting rigorous and unduly strict tests of expecting unusual and exemplary behaviour of ideally careful litigant; the test to be adopted should be one of reasonable expectation by a reasonably diligent litigant.

25. In the light if the guiding principles for construction of procedural provisions and in the light of the ratio of the cases decided after Tulsi Bai's case (AIR 1964 Raj 243) (supra), I am inclined to [construe Order 16, Rule 1 (3) and Rule 1A, C. P. C., in the manner that even where no list of witnesses is filed, still the court has power to permit a party to examine any witness produced by it after recording reasons, if sufficient cause is shown for not filing the list. It is true that Order 16, Rule 1, C. P. C., does not conceive and contemplate a situation of non-filing of the list, but from that, it cannot be said that the legislature intended to deprive the Court of such an important power of examining evidence at the instance of a party without which no justice can be administered. The matter can further be viewed in the light of the decision in the case of Bhonreylal v. Kunj Beharilal ''AIR 1969 Raj 299) (supra). According to that derision, court is possessed of the power of condonation of delay in the presentation of the list by showing sufficient cause. After condonation of delay in the presentation of the list, witnesses can be examined. The object of the rules seems to be speedy trial and prevention of cooking up of witnesses by giving their names in the list, but the emphasis seems to he on allowing evidence by showing sufficient cause for not filing the list or for omission of the names of witnesses in the list and not on depriving the court of its power to permit the party to examine witnesses when list is not filed.

26. I may further state that the conduct of litigation in India is primarily in the hands of lawyers and the litigants proceed to conduct themselves in accordance with the advice given by the lawyers. The lawyers have to be more vigilant and careful in noticing the changes made in statutes and case law and advice the parties accordingly. Lawyers are supposed to know the law and to advise their clients accordingly. They should see that no lis may suffer on account of lack of knowledge of statutes and case law, However, a lis should not also be allowed to suffer on account of any misconception of law on the part of a lawyer.

In the present case the petitioner has submitted an application before this Court from which it appears that Shri J. P. Joshi asked Shankarsingh Rathore to meet him before 5th April, 1979, but Shri Shankarsingh Rathore, it appears, did not meet him, and when Shri Joshi tried to contact him, he came to know that Shri Rathore had already proceeded to Udaipur. The application does not show that Shri Joshi had advised Shri Rathore that the list of witnesses has to be filed within fifteen days. Further from the application it appears that Shri Joshi was of the opinion that if the witnesses are brought and produced by the party, they will be examined by the Court. There appears to be an honest and bona fide mis-conception and that can be considered to be a sufficient cause for permitting the defendant to examine witnesses, who were present in court on 27-10-1979. In Shimbhuram's case (ATR 1980 Raj 184), no application was moved showing sufficient cause before this Court and the matter was left open to be dealt with by the Munsif when, any such application is moved before him.

In view of the fact that an application supported by an affidavit, has been filed in this Court, this Court can certainly decide that application on merits and it will not be proper to leave the question open to be decided by the trial Court. I may point out that the very purpose of securing speedy trial and disposal of cases is frustrated, when such like matters are not finally decided. The provisions contained in Order 16. Rule 1, C. P. C. should be construed by the courts liberally. The evidence should not be normally shut, unless the conduct of the parties is grossly negligent and there are serious laches on its part. Wrong and unwarranted exercise of discretion, gives rise to avoidable litigations in the form of appeals and revisions and setting aside of such orders in appeals and revisions, would further result in prolongation of the litigation, thereby the very object of the salutary provisions intended to curb the delays, would be defeated. Thus, the trial courts should so exercise their discretion and conduct the lis in such a manner, which may avoid unnecessary litigation and advance substantial justice, unless they are required to adopt a different course, either by force of circumstances, or where their hands are tied by law.

27. In the light of the foregoing discussion. I am inclined to accept this revision petition and allow the present petitioner to produce its witnesses on payment of costs of Rs. 50/-.

28. In the result, the revision petition is allowed, the order of the learned Munsif, City Jodhpur, dated 2-1-1980, is set aside and the case is sent hack to him with a direction that he will allow the defendant Mrs. Satnam Malik, Managing Partner of Satnam Transport Company, to produce and examine her two witnesses, namely, Shankarsingh Rathore and Ramchandra Sharma, on the date appointed by him, on payment of costs of Rs. 50/-(fifty). The parties are directed to appear before the Munsif City, Jodhpur on 19-2-1980. In the circumstances of the case, the parties shall bear their own costs of this revision petition.


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