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Shimbhuram Vs. Lakharam - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 147 of 1979
Judge
Reported inAIR1980Raj184
ActsCode of Civil Procedure (CPC) , 1908 - Order 16, Rule 1, 1(3) and 1A; Code of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantShimbhuram
RespondentLakharam
Advocates: K.N. Joshi, Adv.
DispositionPetition dismissed
Cases ReferredKodumal v. The Ra
Excerpt:
.....not naming in the list. ' with very great deference, we should like to point out that a party can produce witnesses 'not named in the list' provided that he satisfies certain conditions which necessarily contemplate that 'a list' must have been filed in the first instance, and where no list has in fact been filed, there can be no question of examining any witnesses who may be other than those named in the list. but in a case like this, it would really be a case of the plaintiff not filing any list, and therefore, there would be no occasion for him to examine any witness within the meaning of this rule. similarly, the amendments introduced in sub-rule (ii) also vest greater discretion in the subordinate courts in this context, the observations of the supreme court in sangram singh's case..........declining to examine the defendant-petitioner's witness whose name was not mentioned in the list of witnesses but who was brought by him for examination in court.2. the plaintiff-non-petitioner instituted a suit for the recovery of rs. 2500/- in the court of munsif, nagaur. the suit was resisted by the defendant-petitioner. during the pendency of the trial, the defendant did not submit any list of witnesses under order xvi, rule 1, civil p. c. prior to the amendment of the civil p. c. 1908 (no. v of 1908) by the civil p. c. (amendment) act (no. civ of 1976), order xvi, rule 1, as amended in rajasthan, and relevant for the present purpose, read 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.....
Judgment:
ORDER

S.K. Mal Lodha, J.

1. A short but important question of law relating to the scope and applicability of the provisions of Order XVI, Rule 1-A, Civil P. C., is involved in this revision, which has been directed against the order dated May 9, 1979 passed by Munsif, Nagaur, declining to examine the defendant-petitioner's witness whose name was not mentioned in the list of witnesses but who was brought by him for examination in court.

2. The plaintiff-non-petitioner instituted a suit for the recovery of Rs. 2500/- in the court of Munsif, Nagaur. The suit was resisted by the defendant-petitioner. During the pendency of the trial, the defendant did not submit any list of witnesses under Order XVI, Rule 1, Civil P. C. Prior to the amendment of the Civil P. C. 1908 (No. V of 1908) by the Civil P. C. (Amendment) Act (No. CIV of 1976), Order XVI, Rule 1, as amended in Rajasthan, and relevant for the present purpose, read 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 whom it proposes to produce :

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.

(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 with the permission of the Court and the Court granting or refusing such permission shall record reasons for so doing.

(iii) & (iv) ...... ...... ...... ...... ...'

The following Rule 1-A was also added after Rule 1 of Order XVI, Civil P. C.

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

The Code of Civil Procedure, as amended by Act No. CIV of 1976, came into force from February 1, 1977. Order XVI, Rule 1, reads as under, --

'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 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 the reasons to be recorded, permit a party to call, either 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 be obtained by parties on an application to the Court or to such officer as may be appointed by the Court in this behalf.'

Rule 1-A of Order 16 runs as under,--

'Rule 1-A. Production of witnesses without summons.

Subject to the provisions of Sub-rule (3) 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 documents.'

The learned Munsif, by the impugned order, refused to examine the defendant's witness Ghamandaram on the ground that no list of witnesses was filed by the defendant and that sufficient cause was not shown for the omission of his name as required by Order 16, Rule 1 (3), C. P. C. The aforesaid order dated May 9, 1979 of the learned Munsif is challenged in this revision.

3. I have had advantage of hearing learned counsel for the petitioner only as nobody appeared on behalf of the plaintiff-non-petitioner despite service.

4. The contention of the learned counsel for the petitioner is that his witness Ghamandaram was present on April 12, 1979 who was brought by him and, therefore, the learned Munsif ought to have recorded his statement as provided under Order 16, Rule l-A, Civil P. C. and he is not required to show sufficient cause for omission to mention the name of the witness in the list. It may be stated here that in the affidavit dated May 15, 1979, the petitioner has stated that his witness Bhavdeo was present on March 16, 1979 and March 30, 1979 and the witness Ghamandaram was present in Court on April 12, 1979 for giving statement. The question is, whether under Order 16, Rule 1-A, without showing sufficient cause for the omission to mention the name of any witness in the list, a party is entitled to produce and examine any witness brought by it. The language of Order 16, Rule 1-A (Rajasthan) is similar to that of Order 16, Rule 1-A, C. P. C., as amended by Act No. CIV of 1976. So, in other words, the question is, whether under Order 16, Rule 1-A (Rajasthan), without obtaining permission from the Court under Order 16, Rule 1 (ii) (Rajasthan), the party is entitled to produce any witness brought by it to give evidence, A list of the witnesses is required to be filed by the parties within the time provided in Sub-rule (1) of Rule 1 of Order 16 which they propose to call and give evidence and the parties have been given right to obtain summonses to such persons for their attendance in the Court. Under the provisions of Order 16, Rule 1 (2), a party desirous of obtaining any summons for the attendance of any person, is required to make an application stating therein the purpose for which the witness is proposed to be summoned by it. The Court has been empowered, as provided in Sub-rule (3) of Rule 1 of Order 16, after recording reasons, to permit a party to produce any witness whose name has not been mentioned in the list referred to in Sub-rule (1) after showing sufficient cause for omission of the name of such witness in the list, In other words, if there is sufficient cause for not mentioning the name of the witness in the list, the Court can allow a party to call either by summoning through Court or otherwise, such witness after recording reasons for it. Under Order 16, Rule 1-A, any party to the suit can bring any witness to give evidence without applying for summons under Rule 1 but this is subject to the provisions of Sub-rule (3) of Rule 1 of Order 16. It, therefore, necessarily implies that the party, who wants to produce any witness to give evidence and whose name has not been mentioned in the list under Order 16, Rule 1, is required to show sufficient cause for omission to mention the name of such witness and the Court, after recording reasons, may permit it. From Order 16, Rule 1-A, it cannot be said that if the party has not filed the list under Order 16, Rule 1, C. P. C. and even does not show sufficient cause for the omision to mention the name of such witness in the said list would be entitled as of right to examine such a witness imply for the reason that it has brought the witness with it and has not applied for summons. This would, in my opinion, be putting the party who has not filed the list and who has also not shown sufficient cause for the omission of the name of the witness in the list, in an advantageous position over the one who has filed the list but who has omitted to mention the name of the witness in such a list about which there may be sufficient cause. The words, 'subject to the provisions of Sub-rule (3) of Rule 1' occurring in Order 16, Rule 1-A, are of great significance. The right of a party without applying for summons under Rule 1-A of Order 16 to bring any witness to give any evidence has been made subject to the provisions contained in Sub-rule (3) of Rule 1 of Order 16. The only difference between Sub-rule (3) of Rule 1 of Order 16 and Sub-rule (ii) of Rule 1 (Rajasthan) of Order 16 is that in the former, sufficient cause has to be shown for the omission to mention the name of a witness and the Court has to record reasons for permitting a party to call such a witness by summoning through Court or otherwise while in the latter, permission of the Court is necessary for a party to produce or obtain process to enforce the attendance of witnesses other than those contained in the list referred to in Order 16, Rule 1 (1) (Rajasthan) and the Court, while granting or refusing such permission, has to record reasons for so doing. So, according to Rule 1-A of Order 16, after showing sufficient cause for the omission for not mentioning the name of the witness in the list, the party can bring any witness to give evidence or to produce documents if it does not want to summon him through Court or otherwise. In other words, if the party brings any witness to give evidence or to produce documents, whose name has not been mentioned in the list, it will have to show sufficient cause for the omission of not mentioning the name in the list. Various rules in Order 16 relate to the matter of enforcing the attendance of persons either to give evidence or to produce documents and Rule 1-A of Order 16 only enables the party to bring any witness to give evidence or to produce evidence without obtaining any summons but this is, however, subject to the provisions of Sub-rule (3) of Rule 1 of Order 16. Similarly, Rule 1-A of Order 16, which was added after Rule 1 of Order 16 in Rajasthan, makes provision that subject to the provisions of Sub-rule (ii) of Rule 1 (Rajasthan) of Order 16, after obtaining permission from the Court, a party can produce and examine any witness without applying for summons under Rule 1 (Rajasthan) of Order 16. For granting or refusing permission, the Court is required to record reasons for so doing.

5. Learned counsel for the petitioner did not cite any authority in support of his submissions. However, I have been able to lay my hands on the authorities to be discussed hereinafter, which, according to me, have bearing on the question. Order 16, Rule 1 (Rajasthan) came up for consideration before a Division Bench of this Court in Mst. Tulsi Bai v. Chunilal, 1964 Raj LW 253 : (AIR 1964 Raj 243); Prabhau Dayal v. Girraj Kishore, 1963 Raj LW 463 : (AIR 1963 Raj 225) was dissented in that case and it was observed,--

'Where, however, we find ourselves unable, with all respect, to agree with the learned single Judge is as to the interpretation he put on Order 16, Rule 1 as amended by this Court, in so far as he held that the filing of the list was merely a subsidiary matter or a matter of no importance, as the emphasis of the rule in his opinion lay on the requirement 'that the witnesses not named in the list cannot be produced without the permission of the Court and without showing good cause for their not naming in the list.' With very great deference, we should like to point out that a party can produce witnesses 'not named in the list' provided that he satisfies certain conditions which necessarily contemplate that 'a list' must have been filed in the first instance, and where no list has in fact been filed, there can be no question of examining any witnesses who may be other than those named in the list. We further find it difficult to accept the proposition laid down in this decision that 'the case may be taken as one in which the list has been filed containing no name of any witness.' If a list has been filed, and that list says that the plaintiff does not wish to examine any witness, then in our opinion, it would amount merely to this that he does not want any witnesses to be summoned by the Court or produce them himself, and, that all that he wants to do is perhaps to examine himself in support of his case. But in a case like this, it would really be a case of the plaintiff not filing any list, and therefore, there would be no occasion for him to examine any witness within the meaning of this rule.'

Jagat Narayan, J. as he then was, in Baxiram v. Ashwani Kumar, 1965 Raj LW 111, after considering the amended Order 16, Rule 1 (Rajasthan), observed as follows,--

'.........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 hypertechnical even in a procedural matter, a party can always be deemed to have filed such a list.'

Chhangani, J., after noticing the cases of Baxiram, Mst. Tulsi Bai and Girraj Kishore, in Dalchand v. Ramakant, 1971 Raj LW 416 observed as under in para 17,--

'There is no doubt that the subsequent amendments made in the year 1970 vide S.C. 25 dated 6-10-70 published on 19-11-70 made the position abundantly clear. In proviso the word 'supplementary' has been deleted and the expression 'with the permission of the Court' has also been deleted. Having regard to these changes, the observations of the Bench in connection with the list of witnesses to be examined in rebuttal cannot have any binding force or relevance in interpreting the amended rule. Similarly, the amendments introduced in Sub-rule (ii) also vest greater discretion in the subordinate Courts in this context, the observations of the Supreme Court in Sangram Singh's case (AIR 1955 SC 425) as to the need of interpreting procedural law with flexibility should govern the interpretation of the rule and it will be hardly proper to treat this rule as a well defined exception within the meaning of the obsevations of the Supreme Court.'

Dwarka Prasad, J., in Kodumal v. The Ra,iasthan Small Industries Corporation, 1976 WLN (UC) 477, after considering Order 16, Rule 1, as amended in Rajasthan, held that a party may, with the permission of the Court, produce or obtain process to enforce the attendance of witnesses not mentioned in the list referred to in Sub-rule (1) and it is incumbent upon the Court while granting or refusing permission to record reasons for doing so,

6. In the case in hand, no list of witnesses was filed under Order 16, 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 16, Rule 1-A or under Order 16, Rule 1-A (Rajasthan) because the provisions of Order 16, Rule 1-A and Order 16, Rule 1-A (Rajasthan) are subject to the provisions of Sub-rule (3) of Rule 1 of Order 16 and Sub-rule (ii) of Rule 1 (Rajasthan) of Order 16 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 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.

7. Learned counsel for the petitioner next contended that on account of the misconception about the provisions of Order 16, Rule 1-A, C. P. C., the defendant did not file any application showing sufficient cause either for not filing the list or for omission of the name of Ghamandaram and, therefore, learned Munsif may be directed to permit the defendant to examine the witnesses brought by him on filing the application in this regard. Such a request was not made to the learned Munsif at the time of the arguments before the order under revision was passed. Learned counsel for the petitioner could not show any ground in the memo of revision relating to this submission, It will, however, 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.

8. With these observations, the revision petition is dismissed. As nobody has appeared to oppose the revision petition, there will be no order as to costs.


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