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Mst. Tulsi Bai Vs. Chunilal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberFirst Appeal No. 63 of 1960
Judge
Reported inAIR1964Raj243
ActsCode of Civil Procedure (CPC) , 1908 - Order 16, Rule 1 and 1A; Code of Civil Procedure (CPC) (Amendment) Act, 1956
AppellantMst. Tulsi Bai
RespondentChunilal and anr.
Appellant Advocate K.C. Gaur, Adv.
Respondent Advocate M.C. Bhandari, Adv.
DispositionAppeal allowed
Cases ReferredSangratn Singh v. Election Tribunal
Excerpt:
- - she further contended that she had been forcibly turned out by her husband on the 19th april, 1955, after being deprived of all the ornaments which she had on her person including her own 'stridhan'.thereupon, her case is that she was compelled to make an application in the criminal court under section 107 of the code of criminal procedure which resulted in her husband being bound down for good behaviour. 3. if so, whether the respondent no, 1 failed to comply with the decree for restitution of conjugal rights for a period of two years upwards after the passing of the decree? he placed strong reliance in support of his contention on the judgment of a learned single judge of this court in prabhu dayal v. [ii) no party shall be permitted to produce witnesses) other than those.....modi, j.1. this is a first appeal against the judgment and decreeof the district judge, udaipur, dated 3rd december, 1953,in an application for divorce wider the hindu marriageact, 1955.2. the appellant is the wife mst. tulsi bai while the contesting respondent no. 1 is the husband chunilal. it is common: ground between the parties that they were married some thirty years ago before the present application came to be filed on the 19th july, 1958, and that there is one son named shantilal born of this marriage, who was 10 years of age in 1958. !t is also admitted that the respondent husband had instituted a suit being no. 220 of smt. 1989 (corresponding to some time in 1932 a.o.) forrestitution of conjugal rights, against the appellant, and that suit was decreed in his favour subject to.....
Judgment:

Modi, J.

1. This is a first appeal against the judgment and decreeof the District Judge, Udaipur, dated 3rd December, 1953,in an application for divorce wider the Hindu MarriageAct, 1955.

2. The appellant is the wife Mst. Tulsi Bai while the contesting respondent No. 1 is the husband Chunilal. It is common: ground between the parties that they were married some thirty years ago before the present application came to be filed on the 19th July, 1958, and that there Is one son named Shantilal born of this marriage, who was 10 years of age In 1958. !t is also admitted that the respondent husband had instituted a suit being No. 220 of Smt. 1989 (corresponding to some time in 1932 A.O.) forrestitution of conjugal rights, against the appellant, and that suit was decreed in his favour subject to the condition that he must file a surety bond for a certain sum of money to the effect that he would not ill-treat his wife. It appears that the husband was not able to file the bond and consequently the appellant remained at her father's house for a period of about two years before they resumed their conjugal relations.

The respondent's case, was that relations between him and the appellant had become strained because she was a woman of loose character and had developed illicit connection with respondent No. 2 Mohan on the 9th March, 1957. It was further alleged that she got the respondent beaten by her brother and father and eventually left her husband's home more than two years ago taking with herself some gold and silver ornaments, the particulars of which have been mentioned in paragraph (10) of the application. Consequently the respondent prayed that a decree for divorce be awarded in his favour and, in the alternative, a decree for judicial separation be granted.

3. The appellant resisted this application. Her case, put briefly, was that until about four or five years before the present application, was filed by her husband, she had steadfastly lived with, and under the roof of, her husband in spite of all the ill-treatment which he afforded to her, the reason being that he was addicted to drink. She further contended that she had been forcibly turned out by her husband on the 19th April, 1955, after being deprived of all the ornaments which she had on her person including her own 'Stridhan'. Thereupon, her case is that she was compelled to make an application in the criminal court under Section 107 of the Code of Criminal Procedure which resulted in her husband being bound down for good behaviour. Her case further is that she had also made an application for maintenance under Section 488, Cr. P. C. In the criminal court which was allowed right upto the High Court and a maintenance allowance of RSection 20/- per mensem for herself and her son was ordered to be paid by her husband Chunilal to her, but as the latter was bent upon flouting this order, he was ordered to serve a sentence of imprisonment in jail more than once. To sum up, the case of the appellant, therefore, was that the present application by Chunilal was just a device to get rid of the effect of the erder of maintenance which had been passed against him by the criminal court.

4. On these pleadings, the following issues were framed by the trial court on the 28th February, 1959:

'1. Whether respondent No. 1 Mst. Tulsi Bai is living in adultery?

2. Whether a decree for restitution of conjugal rights was passed against the respondent No. 1 in favour of the petitioner?

3. If so, whether the respondent No, 1 failed to comply with the decree for restitution of conjugal rights for a period of two years upwards after the passing of the decree?

4. Whether It is a mala fide application brought to deprive the wife from receiving maintenance? If so, what is its effect?

5. Whether respondent No. 1 Mst. Tulsi Bai took awayornaments belonging to the husband as detailed inparagraph No. 10 of the petition? If so, whetherthe petitioner Is entitled to recover the same fromher?'

Yet another issue was struck on the 4th April, 1959, which was to the following effect:

'Whether respondent Tulsi Bai deserted the petitioner Chunilal for a continuous period of not less than two years immediately preceding the date of the presentation of the petition?'

The trial court decided the main issues as to adultery against the appellant and in that view of the matter granted a decree for divorce. It may be pointed out that that court decided issue No. 2 in favour of the contesting respondent and issues NoSection 3 and 4 substantially in favour of the appellant, and issue No. 5 was not pressed before it on behalf of the said respondent; but as the decision of the case centred around issue No. 1, the additional issue does not appear to have engaged the attention of the Court and the case was against the appellant. Hence the present appeal.

5. Two grounds have been mainly raised before us in this appeal. The first is that the trial court had fallen into serious error in closing the appellant's evidence on the 17th October, 1959, in the manner in which it did. The second is that that court had entirely misappreciatsd the evidence on the point of adultery and had completely misdirected itself in coming to the conclusion that the husband had succeeded in proving that she was living an adulterous life with respondent No. 2 Mohan. We shall deal with both these points in the order in which we have mentioned them above.

6. As to the first question, it is necessary to state a few facts together with the relevant dates. Issues were framed in the first instance on the 28th February, 1959, and thereafter an additional issue was further framed on the 4th April, 1959. The petitioner closed his evidence on the 9th May, 1959, and thereafter the case was posted for the appellant's evidence for the 30th May, 1959. As the Trial Judge was on leave on the last-mentioned date, the case was adjourned to the 18th July, 1959. On that date, it appears that it was reported to the court that there was a possibility of the dispute between the parties being settled by a compromise, and, therefore, the case was adjourned to the 8th August, 1959. It was, however, reported on the 8th August that those talks had broken down and consequently the case was posted for the appellant's evidence for the 19th September, 1959. On that date, the appellant examined herself, and two of her witnesses who were present were sent away without being examined for want of time. The case was then adjourned to the 17th October, 1959. On that date, it turned out that the appellant's witnesses were not present, and it was reported to the court by her that they had gone away to some other village and consequently the case be adjourned to another date for recording evidence.

An objection was, however, raised on behalf of the contesting respondent that as the appellant had not filed any list of her witnesses under Order 16, Rule 1, C. P. C., she had disentitled herself from producing her evidence, and no witnesses of hers could therefore be examined in court. This plea prevailed with the trial court, and it ordered that she was not entitled to produce any evidence in view of the fact that she had not filed a list of her witnesses as required by Order 16, Rule 1, C. P. C. It is in these circumstances that the evidence of the appellant was closed, and the contention of her learned counsel before us is that the trial court had fallen into error in putting the interpretation which it did on Order 16, Rule 1, C. P. C. He placed strong reliance In support of his contention on the judgment of a learned single Judge of this Court in Prabhu Dayal v. Girraj Kishore, ILR (1963) 13 Raj 891 : (AIR 1363 Raj 225).

7. Now the material portion of Order 16, Rule 1 of the Code of Civil Procedure as amended by our Court and as it stood on the 17th October, 1959, reads as follows:

'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.

[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.'

As we understand these provisions on their plain language, it seems to us that their requirements are as under:

(1) Each party to the suit must present in court a list of witnesses whom it proposes to produce at the trial on a date to be fixed by the court which must not be later than 30 days after the settlement of issues.

(2) As a rule, no party is to be permitted to produce witnesses other than those contained in its list.

(3) This rule is however not absolute, and liberty has been reserved to a party to produce other witnesses provided that permission of the court is first obtained to that course, and provided further that good cause for the omission of such witnesses from the list is shown in which case a discretion has been vested in the court to grant permission for the production of such witnesses alter recording reason for doing so.

8. It was contended before us on behalf of the appellant that as a discretion had been vested in the court to allow a party to produce witnesses other than those mentioned in the list with the permission of the court, there could be no valid objection to the examination of such witnesses by the court irrespective of the consideration whether the list containing the names of the party's witnesses had been filed as required by Order 16, Rule 1 (i). It was also pressed for our consideration that the rule which we are called upon to consider was, after all was said and done, a rule of procedure and that it should not he interpreted in such a strict manner that instead of sub-serving the ends of justice, it may really hamper them.

9. At the very outset, we should like to point out that Order 16, Rule 1 as originally enacted by the Code of 1908 was in these terms:

'At any time after the suit is instituted, the parties may obtain, an application to the court or to such officer as it appoints in this behalf, summonses to persons whose attendance is required either to give evidence or to produce documents.'

This was substituted by our High Court acting under Section 122 of the Code by the rule which we have set out above (see notification No. 10/S.R.O. dated the 29th June, 1957, published in the Rajasthan Rajpatra dated the 25th July, 1957, in Part IV ^x* with the consequence that the amended rule came into operation with effect from the 25th July, 1957. For the sake of convenience, we may as well point out here that this rule came in for a further amendment by the Court, which was published under notification No. 1/S.R.O. dated the 20th January, 1961, published in Part ^x* of the Rajasthan Rajpatra dated the 23rd March, 1961. By this amendment 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 his opponent.'

This further amendment came into force from the 23rd March, 1961, the date on which it was published in the State Gazette.

It may be pointed out, however, that this latter' amendment was not available for use either on the 17th October, 1959, when the court closed the appellant's evidence, or, on the 3rd December, 1959, when it finally decided 'the present case. We are, therefore, concerned in this case with the rule as it stood on the 17th October, 1959, and at that time, Order 16, Rule 1 as we have quoted (omitting its immaterial portion) in the foregoing part of our judgment only was in force.

10. From what we have stated above, it should be clear enough that -this High Court was of the opinion that Order 16, Rule 1 as it was originally enacted by the Legislature, required to be amended for certain reasons with which we propose to deal presently, and the amendment was avowedly made to achieve that objective.

11. The next and the more important question Is, what is the precise import and effect of this rule? Is its meaning quite clear on the language used in it or is it ambiguous in any way, and therefore, calls for an interpretation? Having carefully read this rule more than once, we are clearly of the opinion that the language of the rule is quite 'Specific and is not involved in any ambiguity whatsoever. That being so, we are of the opinion that in accordance with the well-established principles which require to be considered in a case' like the present, ail that the court has to do is to read the rule literally, that is, by giving to the words used therein their ordinary, natural and grammatical meaning and state what their meaning is. The point that we wish to make is that where a statute is not ambiguous or capable of two interpretations, it is hardly necessary to have recourse to rules of construction. But what we have -to do is to see what those words mean and give effect to them regardless of the consequences that may ensue.

12. Thus in Mahmutidin Nisa Begum v. Board of Revenue, Rajasthan, ILR (1959) 9 Raj 1043, it was held by a Division Bench of this Court that where the language of a statute is obscure, or it is open to more meanings than one, then it may be necessary to resort to extraneous aids such as the state of pre-existing law and the consideration of cognate provisions and the like, but where that is not the case, there can hardly be any necessity or justification for trying to seek the meaning of the provision elsewhere, except by putting the plain meaning on the words used by the Legislature itself.

13. Again in a Full Bench decision of this Court in Jairam Das v. Regional Transport Authority, Jodhpur, ILR (1957) 7 Raj 806: ( (S) AIR 1957 Raj 312) (FB), to which one of us was a party, it was laid down that where a case falls' within the plain meaning of a provision of law, its application thereto cannot be denied on any 'a priori' considerations as to the supposed intentions of the Legislature, and even though a court may be satisfied thatthe Legislature had not contemplated a particular consequence while enacting a law, the court is still bound to give effect to its clear language.

14. Again in Birba! v. Thaman Singh, ILR (1955) 5 Raj 427 : ( (S) AIR 1955 Raj 91), it was laid down by a Bench of this Court that it was a well settled principle of interpretation, that the statutes of limitation, like all others, ought to receive a construction which may be borne out by plain meaning of the language, and that extraneous or equitable considerations are out of place and the safest guide is the strict grammatical meaning which can be given to the language.

15. To cite one more case of our own Court, it was laid down in Sunder Das v. Regional Settlement Commissioner, Jaipur, ILR (1959) 9 Raj 76 : (AIR 1959 Raj 102), to which again one of us was a party that where the language of an Act was clear and explicit, the court must give effect to it regardless of the consequences thereof, and it is only where the words are susceptible to an ambiguity and two interpretations are possible, and the one leads to injustice and the other avoids it, that the court would be justified in choosing the interpretation which avoids the anomaly or injustice.

16. Bearing these principles in mind, we are altogether unable to hold that the- language of Order 16 Rule 1 as amended is vague or ambiguous in any way. That being so, strictly speaking, it does not call for any interpretative endeavour, and ail that we are properly called Upon to do is to find out and pronounce as to what is its precise meaning and effect, and we need not be obsessed by the consequences which its enforcement may or may not lead to.

17. On a critical examination of this rule, as we have alluded to above, it has been prescribed that after the issues have been settled and not later than 30 days thereof, each party must present in court a list of witnesses whom it wishes to produce at the trial in support of its case. It is further laid down that no party shall obtain process to enforce the attendance of witnesses or produce them in Court if the names of such witnesses have not been mentioned in the list referred to above but an exception has been provided to this, and that is that where a party shows good cause for the omission To mention the name of a witness in the list and seeks permission of the court to produce such a witness even though his name was not so mentioned, the court may grant such permission, recording the reasons for doing so.

18. On a plain reading of these provisions, it seems to us clear that the witnesses which a party will be permitted to produce at the trial must have been named in a list which each party to the suit is required to produce within the prescribed time, and that has been specified as not later than 30 days from the settlement of the issues. On this reading of the rule, it seems to us, with all respect, imperative for the party to file a list of his witnesses before he actually examines his witnesses at the trial. This meaning, to our mind, is made plain beyond any scope for ambiguity by Rule 1 (ii) of Order 16, which lays down in emphatic terms, to wit,

'No party shall produce or obtain process to enforce the attendance of witnesses other than those contained in the list.'

By the manner in which this rule has been framed in the negative or prohibitive form, it is clear, to ourminds, that the unmistakable intention of the rule is thatwhere a party wishes to produce witnesses whose names are not contained in the list required to be filed under Sub-rule (i), or to enforce their attendance, it shall not beallowed to do so unless its case falls within the saving clause namely

'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 sodoing'.

19. We may here invite attention to the principle propounded by Bhandari, J. in Associated Cement Co. Ltd., Lakheri Cement Works, Latheri v. Industrial Tribunal, Rajasthan, Jaipur, 1LR (1959) 9 Raj 1302, relying on Statutory Construction by Crawford, 1940 Edition, page 523,

'Prohibitive or negative words can rarely, if ever, be directory, or as it has been aptly stated, there is but one way to obey the command, 'thou shall not,' and that is to completely refrain from doing the forbidden act.'

In other words, if the command is to do an act in a particular manner as laid down by the legislature, then it can foe done in that manner and no other.

20. On a careful consideration of the entire languageof this provision, we are, therefore, strongly disposed to hold that the requirement as to the filing of the list of witnesses by either party to the suit is a mandatory requirement, and that requirement must be obeyed, and if it is not so obeyed, the consequences mentioned in the rule itself cannot but ensue and have to be given effect to.

21. It may not be out of place at this juncture to say a few words about the objective underlying the rule as amended by this Court. As Order 16, Rule 1 stood enacted by the Legislature, it was well settled that it was open to a party to make an application to the court for summoning witnesses whether they were required to giveevidence or to produce documents after the suit was instituted and before it was disposed of or before the party closed its own evidence, as the case might be. We may as well refer here to Section 30(b), C. P. C. of which Order 16and the various provisions contained therein seem to be the outcome. Section 30(b) lays down that, subject to such conditions and limitations as may be prescribed, thecourt may, at any time, either of its own motion or on the application of any party issue summonses to personswhose attendance is required either to give evidence orto produce documents or such other objects as aforesaid.The point to note is that this power of the court to issuesummonses is subject to certain conditions as may be prescribed, and we have no doubt that Order 16 lays down theseconditions.

22. The position in law, therefore, was well settled,so far as the original Rule 1 of Order 16 was concerned; and 'that was that the court was bound to issue summonses where an application was made to it for that purpose atany time after the institution of the suit and before its final disposal, provided of course that the application made therefor was not a vexatious one or did not amount to an abuse of the process of the court. Such an application could not be refused on the ground that the application was filed too late, though it was within the discretion of the court to refuse an adjournment of the hearing en the ground of want of diligence of a party, the reasonbeing that it was possible that the party may have itsown facilities for the expeditious service of summons. Thus it was held that Rule 9 of Order 16 which provides that summons must be served on the witness in sufficient time, is only a rule in favour of the witness and intended to induce due diligence in the party; but it does not empower the court to refuse a witness 'summons on the ground of late application. Nor can summons be refused on the ground that the party had been given a number of opportunities to produce witnesses in the case which is an old one or that the evidence of a witness may not b& beneficial to the party, or that the witness had not been summoned before, or that the party had undertaken to bring his witnesses, or that steps were not taken by the party within a time fixed by the Court for that aur-pose.

23. The result of this state of law was that cases were not infrequently prolonged by repealed applications for summoning the witnesses before the disposal of the suit, and, in any case, before the party closed its own evidence, and there was also abundant opportunity for production of spurious evidence to suit the exigencies of the occasion. We have no doubt that it was with a view to ensure a speedy, efficient and pure administration of justice, and to eliminate opportunities for production of cooked up witnesses, that our High Court, in its wisdom, thought fit to amend this rule in the form in which it is before us, and, with all respect, we are entirely unable to agree with the learned counsel for the appellant that there is anything in the rule as amended which endangers or obstructs the essential or substantial requirements of justice for either party to the case. As we have analysed the rule, it gives ample opportunity to both parties to produce a list of witnesses whom it wishes to rely on, and as the rule stands amended at this date after the further amendment that was made in 1961, it gives an additional opportunity to the party which has to lead evidence in rebuttal to file a supplementary list also within a prescribed period of the opposite party closing its own evidence.

24. This being the objective of Order 16, Rule 1 as emended, we are definitely of the opinion that it is a very salutary rule, observance of which should not be difficult for the parties and their counsel to ensure if only they care to exercise the ordinary vigilance which is expected) of them, which indeed is not expecting too much; but it for certain reasons which we find it entirely difficult to comprehend, a party or its counsel neglects to read the rule or to comply with it, we have no hesitation in saying that the fault would be entirely its own and we must leave such people to suffer the consequences emanating therefrom, and, in any case, we are categorically of the opinion that they are not entitled to any sympathy from the court.

25. There is one other matter which was not made the subject-matter of any argument before us but which we consider it necessary to refer in order to completely dispose of the matter before us. We may here refer to Order 16, Rule 1-A which was introduced by the Code of Civil Procedure (Amendment) Act, 1956 (No. 66 of 1956) and which reads as follows:

'1A. Where any party to the suit has, at any time on or before the day fixed for the hearing of evidence, filed in the Court a list of persons either for giving evidence or for producing documents, the party may, without applying for summons under Rule 1, bring any such person, whose name appears in the list to give evidence or to produce documents.'

It clearly seems to us that there is a certain amount of inconsistency between this rule and Rule (1) of Order 16 as amended by this Court in 1957. It further seems to us that at the time the amendment was made by this Court acting under Section 122, C. P. C., this Rule 1-A was not brought to the notice of the court, and that is why this Inconsistency unfortunately crept in. We are fortified in coming to this conclusion because later in 1961 when Order 16, Rule 1 again came up for consideration and amendment and the court's attention was obviously drawn to Rule 1-A, again acting under its rule making power under Section 122 of the Code, it decided that Order 16, Rule 1-A be deleted and it stood repealed accordingly. There should be no difficulty, therefore, on this score in cases decided after Rule 1-A of Order 16 was deleted, but the fact remains that the rule was very much in existence when the present case was decided.

The question then is which of these rules should prevail during the period they were both in existence. On giving our most careful and anxious consideration to the matter, we have no hesitation in holding that Order 16, Rule 1 as amended by this Court should prevail, over Order 16, Rule 1-A. We say so far a two-fold reason. The first is that Rule 1-A cannot have any greater force or validity than Rule 1 as it originally existed and they both stand on the same footing so far as their enforceability is concerned. Under Section 122 of the Code, the High Court (not being the Court of a Judicial Commissioner) is empowered to make rules, after previous publication, regulating its own procedure and the procedure of the civil courts subject to its superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule. It is unquestionable that the rules so made by the High Court after observing the formalities and requirements mentioned in Sections 123 to 128 of the Code have the force of law subject to the fundamental consideration that they do not in any way contravene the provisions made in the body of the Code. It is nobody's case before us, nor are we otherwise satisfied, that Order 16, Rule 1 as amended by this Court is in any manner inconsistent with Section 30 or any other provision of the Code bearing on the matter.

26. The position thus is that we have on the one hand Order 16, Rule 1 as amended by the Court in 1957, and on the other hand Order 16, Rule 1-A as enacted into it by the Code of Civil Procedure [Amendment) Act, 1956. We are of opinion that in so far as Order 16, Rule 1-A is in conflict with Rule 1, Order 16, as amended by this Court, it must give way to the latter by necessary implication. If any authority is needed for this proposition, we would refer to a Full Bench decision of the Allahabad High Court in Shakir Hussain v. Chandoo Lal, AIR 1931 All 567. In that case it was found that there was some inconsistency between Order 21, Rule 43 as it existed in the Code and Order 21, Rule 122 as enacted by the High Court. The former rule required that the attaching officer must keep the property In his own custody or in the custody of one of his subordinates, but the latter rule required that the attaching officer shall, subject to approval by the High Court, make-such arrangement as may be most convenient and economic and that if the court approves of it, he can put the property in the custody of some one else other than the subordinate office. It was held that if a new rule that has been added by the High Court under Section 122 of theCode of Civil Procedure is to some extent in conflict with the previous existing rule, the new rule must by implication be deemed to have annulled or altered that rule and it is the new rule which must prevail.

We are of opinion that it is possible to come to the same conclusion by another process of reasoning, and that is that where it is impossible to harmonise contradictions and the same matter happens to be the subject matter of an earlier statute as well as a later one and the two cannot stand together, then the earlier statute stands Impliedly repealed by the later statute. Reference may be made in support of this proposition to a decision of one of us in Sobhalal v. Baghsingh, 1954 Raj LW 382, with which we are in entire agreement. Therefore, we are definitely of the opinion that the existence of Order 16, Rule 1-A in the First Schedule of the Code at the time with which we are concerned cannot in any manner adversely affect the conclusion at which we have arrived above.

27. The position, therefore, in law boils down to this that the provision contained in Order 16, Rule 1 as amended by this Court is an express and explicit one in so far as it commands the parties to a suit to file a list of the witnesses intended to be produced by or in support of their respective cases within 30 days of the settlement of issues therein and further that this provision is mandatory and the rule itself provides the exception where the strict requirements of that rule can be dispensed with, that is, in cases where the party intending to produce any further witnesses shows good reason to the court why the names of those witnesses were not mentioned in the list filed under Order 16, Rule 1 and obtains the permission of the court for their production and the court records the reasons for granting or refusing the permission so asked for.

28. We may also add that after the further amendment of 1961 was made, this rule affords a further opportunity to a party wishing to lead evidence in rebuttal to produce a supplementary list within fifteen days of his opponent closing the evidence. We are, however, clearly of opinion that having regard to the peremptory language of the provision, it will not be open to a party to produce witnesses in spite of the fact that he has failed to produce the list of witnesses as contemplated by or within the meaning of Order 16, Rule 1.

29. The only further thing that we consider it necessary to add in this connection is that, as we look at the rule, it seems to us to put the parties themselves on a somewhat different footing from their witnesses so that it would be open to the parties to examine themselves in evidence notwithstanding the fact that their names may not have been mentioned in the list filed in court. We hold accordingly.

30. This brings us to the decision of the learned; single Judge in ILR (1963) 13 Raj 891 : (AIR 1963 Raj 225) (Supra), on which learned counsel for the appellant strenuously relied. We have carefully examined the facts of this case, which were to the following effect. Issues were framed in that case on the 15th January, 1958. The case was then adjourned to the 17th March, 1958, for the evidence of the parties. On the 20th January, 1958, the plaintiff applied that summonses be issued to six witnesses referred to in that application. He also deposited a certain sum of money for the expenses of his witnesses. On the 17th March, 1958, an objection was raised on us-half of the defendants that as the plaintiff had not filed a list of witnesses as required by Order 16, Rule 1 (i), C. P. C. the evidence of the plaintiff be closed. Thereupon, the plaintiff filed a number of applications. The first one appears to have to the effect that some eight witnesses referred to in that application be allowed to be examined. The second was that the list of the witnesses filed on the 20th January, 1958, be treated as having been filed under Order 16, Rule 1. A third application was filed to the effect that at least the plaintiff who was present in court may be examined.

The trial court rejected all these applications. That court, however, somehow decreed the plaintiff's suit in spite of the fact that no evidence had been examined on his behalf. The defendants went in appeal to the court of the District Judge Bharatpur who allowed the appeal and dismissed the suit of the plaintiff obviously on the ground that there was no evidence in support of it. The matter then came up in second appeal before the learned single Judge, and it was strenuously submitted before him that the trial court had fallen into a serious error of law in closing the plaintiff's evidence on the ground that ne had failed to file a list of witnesses within the meaning of Order 16, Rule 1, C. P. C. The learned single Judge allowed the appeal and remanded the case with a direction that the plaintiff as well as the defendants be allowed to produce their evidence and thereafter the case be tried in accordance with law.

31. Now, so far as the actual decision in the case before the learned single Judge is concerned, With respect, we have no hesitation in saying that it is fully supportable on the ground that the application which was made by the plaintiff on the 20th January, 1958, within six days of the settlement of the issues, for summoning six witnesses could well have been taken to be an application for obtaining summonses to the witnesses within the meaning of Order 16, Rule 1 and that, in our opinion, was enough to quash the decision of the courts below. We are also in full agreement with the learned Judge that the plaintiff could certainly have been examined by the trial court in case he was present, and on the meaning we have put on Order 16, Rule 1, that rule does seem to us to make a distinction between a party and its witnesses and it does not appear to us to have been contemplated that the party must necessarily include his own name in the list of witnesses which are sought to be examined by him.

32. 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 (ay 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 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.

33. Lastly, we may refer to the observations of their Lordships of the Supreme Court in Sangratn Singh v. Election Tribunal, Kotah, (S) AIR 1955 SC 425, on which the learned Judge seems to have placed great reliance, and these observations are:

'Now a code of procedure must be regarded as such. It is 'procedure' something designed to facilitate justice and further 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) lest the very means designed for the furtherance of justice be used to frustrate it.'

The question in this case was as to the true requirement of Order 9 Rule 6 C. P. C. It was held by this Court that before the defendant could have been allowed to participate in the hearing, he should have got the ex parte proceedings set aside against him. The Supreme Court held that no ex parte order was required to be set aside, inasmuch as none was passed or was required to be passed under the Code, and, therefore, it was open to the defendant to take part in the proceedings from the stage at which they had then reached subject to such terms and conditions as the Tribunal might think fit to impose, and it is in this context that Bose J., speaking for the Supreme Court, made the observations which we have extracted above. But, with all respect we wish to point out that these observations must be understood in the context in which they were made and cannot be given a sort of universal application for which learned counsel for the appellant con* tends.

This, in our opinion, will be obvious from some further observations which fell from the same learned Judge in the course of this very judgment and to which we may here refer with advantage :-

'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,' (The underlining) (here ' ') is ours)

The true effect of this judgment, in our respectful submission, is only this that, generally speaking, undue importance should not be given to rules of procedure and any breachthereof should not be visited with penalties; but where there are exceptions to this rule and where such exceptions are clearly defined, there is no course left open to the courts other than to give effect to them. It clearly seems to us that the present is a case which falls within theexceptions to the rule laid down by the Supreme Court in its judgment.

34. In this view of the matter, we are unable toagree with the reasoning contained in the judgment of the learned single Judge though we entirely agree with his conclusion on the facts and circumstances in that case.

35. Applying the law that we have enunciated above to the facts of the present case, what do we find? It is admitted that no list whatever was filed by the defendant appellant Tulsi Bai in the trial Court within the meaning of Order 16 Rule 1 as amended, and that being so, she was not entitled to examine any witnesses on her behalf at the trial, and the trial court was quite justified in coming to 'the conclusion that she was not entitled to examine any witness at the trial. On our interpretation of Order 16 Rule 1 the appellant could however examine herself notwithstanding her omission to file the list and she was examined at the trial in support of' her case. We may also take the opportunity of pointing out at this place that in a proper case it may be possible for the court to examine a certain person as a court witness, but that cannot be done merely to defeat the salutary provision contained in Order 16 Rule 1, because if that is done, we have no hesitation in saying that the rule would be rendered entirely nugatory and wecan have no warrant for allowing such a thing to be done.

It is well established that there are a number of functions which lie in the discretion of a Court, which means that the exercise of such functions is not controlled by any rigid or fixed rules of law or procedure but has to beregulated compatibly with the circumstances of a givencase according to well understood principles of reason andjustice. In other words, the exercise of such discretionshould not be. arbitrary, vague or fanciful, not accordingto the mere private opinion held by a particular presiding officer but it must be regulated by the justice of the case; it must be according to reason and not according to humour. In this view of the law we hold that the trial Court was under the circumstances fully justified in refusing to allow the appellant to produce her witnesses at the trial and we overrule this contention.

36. This brings us to the merits of the case, and 'the question is whether the finding of the Court below that the appellant Mst. Tulsi Bai was living in adultery with (respondent Mohan is correct. The petitioner's case as disclosed in the petition, briefly put, was that his wife had started living in adulterous intimacy with respondent No. 2 Mohan from the 9th March, 1957. As for the period before that, all that he stated was that some two years after their marriage his wife had left his home and had not re-turned, and, therefore, he was compelled to institute a suit for restitution of conjugal rights against her. This suit was No. 220 of Smt. 1989 (1932 A. D.). He further stated that this suit had been decreed in his favour although he discretely avoided saying what was undoubtedly a fact of importance that the decree that was passed was conditional in the sense that before he was allowed to have)the possession of his wife by the Mehandraj Sabha of former State of Mewar, as it then was, he was required to file a surety bond for a sum of RSection 251/-. The petitioner's case further was that even if this decree was passed, his wifehad not resumed cohabitation with him for a period of about two years, and he finally stated that his wife had deserted him more than two years ago. The only other allegations to which it is necessary to draw attention to this connection are that they had a son who was about ten years of age in 1958 and that the appellant had got him (respondent) beaten by her brother and father, and that when she finally left living with him, she carried away gold and silver ornaments the particulars of which are given in paragraph No. 10 of the petition.

37. So far as the charge of adultery is concerned, the petitioner examined two witnesses Kewalram and Prithvi Singh in addition to himself. The learned trial Judge seems to have thought that three more witnesses had been examined on this point at the trial, namely, P.W. 5 Fakir Chand, P. w. 6 Karoo and P. W. 7 Chhogalal. We may state at once 'that the last-mentioned three witnesses say nothing relevant as to her living in adultery.

(After discussing evidence (Paras 38 to 41) the judgment proceeded :)

42. The result is that we are wholly unable to agree with the conclusion at which the learned District Judge arrived on this aspect of the case and hold that the allegation of adultery made against the appellant has no legs to stand on.

43. That, however, does not conclude this unfortunate case, even though we should have been glad to have finally disposed of it if we could. The reason is that there was an additional issue No. 6 which was framed by the trial Judge on the 4th April, 1959, but which he entirely omitted to deal with and decide in his judgment. That issue has been set out by us above, and the point raised in it is whether Mst. Tulsi Bai had deserted her husband for a continuous period of not less than two years immediately preceding the date of the presentation of his application. Learned counsel for both parties are agreed that this issue should have been decided by the learned trial Judge, and that as he has not done that, we should direct him to hear the parties on that issue and decide It. We concur in this prayer without saying anything more about it, lest we might prejudice the case against one party or the other.

44. For the reasons mentioned, above, we allow thisappeal, set aside the decree for divorce passed by thelearned District Judge, Udaipur, and send the case back tohim with a direction that he will hear the parties on theremaining issue and dispose of the case according to law.Costs here and in thertefore will abide the result. We hereby direct learned counsel for the parties to arrange fortheir appearance in the trial court on the 11th May, 1964.


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