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Prabhu Dayal Vs. Girraj Kishore and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Appeal No. 343 of 1958
Judge
Reported inAIR1963Raj225
ActsCode of Civil Procedure (CPC) , 1908 - Order 16, Rule 1
AppellantPrabhu Dayal
RespondentGirraj Kishore and anr.
Appellant Advocate D.P. Gupta, Adv.
Respondent Advocate R.P. Goyal, Adv.
DispositionAppeal allowed
Cases ReferredSangram Singh v. Election Tribunal Kotah
Excerpt:
.....there is no list submitted under order 16, rule l(i). order 16, rule 1 (ii) no doubt makes reference to the list submitted under rule l(i) but the emphasis is on the point 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......on 17-3-1958 an application was filed by the defendant-respondents that the plaintiff had not filed a list of witnesses as required by order 16, rule 1(i) of the civil procedure code and the evidence of the plaintiff be ordered to be closed. on this, the plaintiff filed an application that eight witnesses referred to in that application be examined on his behalf (see page 125d of the record). anotherapplication was filed that the list of the witnesses filed on 20-1-58 may be treated as one filed under order 16, rule 1(i), c. p. c, yet another application was filed that at least prabhudayal plaintiff who was present in the court may be examined. all the applications filed by the plaintiff were rejected by the trial court. the court held that as no application giving the list of the.....
Judgment:

D.M. Bhandari, J.

1. This is a civil second appeal in a suit for grant of perpetual injunction and for possession of the land of the chowk which according to the plaintiff-appellant was joint.

2. The main grievance of the plaintiff-appellant is that the trial Court had wrongly closed his evidence. In order to appreciate this contention, it is necessary to refer to the following facts: In this case, the issues were framed on 15-1-1958 and the case was adjourned to 17-3-58 for the evidence of the parties. On 20-1-1958 the plaintiff applied that the summonses be issued to the six witnesses referred to in that application. He also deposited Rs. 25/- for the expenses of the witnesses. On 17-3-1958 an application was filed by the defendant-respondents that the plaintiff had not filed a list of witnesses as required by Order 16, Rule 1(i) of the Civil Procedure Code and the evidence of the plaintiff be ordered to be closed. On this, the plaintiff filed an application that eight witnesses referred to in that application be examined on his behalf (see page 125D of the record). Anotherapplication was filed that the list of the witnesses filed on 20-1-58 may be treated as one filed under Order 16, Rule 1(i), C. P. C, Yet another application was filed that at least Prabhudayal plaintiff who was present in the Court may be examined. All the applications filed by the plaintiff were rejected by the trial Court. The Court held that as no application giving the list of the witnesses had been filed under Order 16, Rule l(i) within 30 days from the settlement of issues, the plaintiff could not examine any of the witnesses.

The other application for treating the application for summoning the witnesses as an application giving the list of the witnesses was rejected on the ground that that application was under Order 16, Rule l(ii). It was argued before the learned Judge of the trial Court that the Court may exercise its inherent power under Section 151, C. P. C. but the Court held that as there was specific provision in Order 16, Rule l(i), C. P. C. the inherent power could not be invoked contrary to it. The third application for producing Prabhu Dayal plaintiff as a witness was rejected on the ground that his name did not find mention even amongst the witnesses sought to be summoned. The defendants had also not filed the list of the witnesses. It was observed that giving an opportunity to the plaintiff to produce his evidence will be to the prejudice of the defendants as they had not filed the list of witnesses. The evidence of the parties was, therefore, ordered to be closed and the case was fixed for arguments. The case was argued and it was the good fortune of the plaintiff that it was decreed on the strength of the document Ex. 1 already on the record. The trial Court relied on the sale deed Ex. 1 produced by the plaintiff which was a registered document but was not admitted by the defendants.

3. Defendants went in appeal to the Court of the District Judge, Bharatpur. The learned District Judge held that Ex. 1 was not proved and as such the plaintiff could not rely upon it. Taking this view of the matter, he accepted the appeal and dismissed the suit of the plaintiff. He also did not remand the case for permitting the plaintiff to lead evidence. Hence the second appeal.

4. I do not at all appreciate the manner in which the trial Court acted in refusing the plaintiff to lead evidence. The provision of Order 16, Rule 1, C. P. C. as it stood before its amendment by the Rajasthan High Court is as follows:

'At any time after the suit is instituted, the parties may obtain, on 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.'

5. By notification dated 29-6-57 published in the Rajpatra dated 25-7-1957, Rule 1 was amended by the Rajasthan High Court and the following was substituted for Rule 1 :

'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.

(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 XVI 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 reissued for service in the manner provided for the service of summons to a defendant.'

6. The suit in this case was filed on 13-7-1957 but it was governed by the amended Rule as the amendment is merely with regard to a procedural matter. It appears that the counsel for the plaintiff was not aware of this amendment and he merely acted under Order 16, Rule 1 as it stood before the amendment by the Rajasthan High Court and applied on 20-1-5S that the summonses be issued for the attendance of the witnesses mentioned in the application. On 17-3-1958 when his attention was drawn to the amended Rule he at once took steps to see that the plaintiff may be permitted to lead evidence. For this purpose, he made three applications to which the reference has already been made above. In the circumstances of the case, the trial 'Court instead of being too technical should have permitted' the plaintiff to produce witnesses who had been summoned and who, I may point out, were present in the Court on 17-3-58 and who had been sent back without being examined after paying expenses to them. There was absolutely no bar for the trial Court not to have examined those witnesses as Order 16, Rule l(ii) clearly gave the discretion to the trial Court to examine these witnesses.

The trial Court could have also examined Pradbhu Dayal plaintiff who was present. Order 16, Rule l(ii) may be applied even to a case in which there is no list submitted under Order 16, Rule l(i). Order 16, Rule 1 (ii) no doubt makes reference to the list submitted under Rule l(i) but the emphasis is on the point 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. Even when there is no list, Court's power to take evidence of any witness remains unfettered. In a given case it may happen that a party may feel that he is not in need of producing any witness and may not make an application as required under Order 16, Rule l(i) but at a later stage in the case the same party may realise that it is necessary to examine some witnesses on his behalf. Even in such a case the Court may grant permission to that party to produce witnesses. This may be done under Order 16 Rule l(ii). The case may be taken as one in which the list has been filed containing no name of any witness.

7. Again, in the present case there was an application for summoning six witnesses and that application could also be taken as the list of the witnesses by the trial Court under Order 16, Rule 1(i), C. P. C. There was no necessity for invoking Section 151 in the case because that application had been filed within the period of thirty days from the settlement of issues. This could have been done had the trial Court been anxious to see that the parties were not debarred from producing their evidence. It has been pointed out more than once that the rules of procedure are meant to advance the cause of justice and not to hamper it. In this connection, I may quote the following observations of the Supreme Court in Sangram Singh v. Election Tribunal Kotah, (S) ATR 1955 SC 425 :

'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 athing 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.'

8. The learned trial Judge laid much emphasis on the technicality of the provisions and wanted to dispose of the case without caring whether the parties had been given an opportunity to lead evidence or not. One reason that has been assigned by the trial Court for adopting this attitude is that the defendants had also not filed a list of the witnesses whom they wanted to produce. The trial Court could have taken a liberal attitude with regard to the defendants also and could have given them an opportunity to produce witnesses at least in rebuttal as at that time no list was to be filed for producing evidence in rebuttal. Rule 16(1)(i) has been further amended by Notification dated 20-1-61 published in Rajasthan Raj-patra dated 23-3-1961, and a new Proviso has been added to the Rule which is as follows :

'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.'

9. I am, therefore, of the opinion that the case must be remanded to the trial Court for enabling the parties to produce their evidence. The appeal is, therefore, allowed, the judgment and the decree of the learned District Judge, Bharatpur, dated 10-10-1958 are set aside and the case is remanded to the trial Court for decision in accordance with law keeping in view the observations of this Court. The costs so far incurred by the parties shall abide the result.


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