D.P. Gupta, J.
1. This order will govern both the aforesaid revision petitions.
2. As notice was issued to the non-petitioner, Mr. Bapna appeared on behalf of the defendant non-petitioner. I have heard learned Counsel for both the parties at considerable length.
3. In the suit filed by the applicant Kodumal issues were framed by the trial court of July 1, 1975 and the case was fixed for September 12, 1975, for recording the evidence of the plaintiff and the parties were allowed to file the lists of their witnesses within the statutory period of 30 days. It is common ground that note of the parties filed a list of its witnesses within the cried of thirty days. On September 12, 1976, the learned Counsel appearing for the plaintiff prayed for an adjournment, which was allowed on payment of Rs. 10/- as costs and then the suit was fixed for October 3, 1975 for recording the evidence of the plaintiff. Before the aforesaid date, the plaint ff submitted an application on September 12, 1975 explaining the reasons en account of which he was unable to file a list of his witnesses within the period allowed by law and praying that the witnesses whose names were included ID THE list annexed to that application may be allowed to be examined in support of the plaintiff's case. The plaintiff also filed an affidavit alongwith his application dated September 15, 1975. The defendant did not file any reply to this application. The trial court, by its order dated October 3, 1975, rejected the application of the plaintiff and refused to examine the witnesses mentioned by the plaintiff in the list submitted by him alone with his application dated September 15, 1975 on the ground that the said application was not supported by a medical certificate. The trial court by the said order also proceeded to close the evidence of the plaintiff. By the subsequent order dated October 16, 1975, the trial court rejected the plaintiffs subsequent-application filed on October 10, 1975, although the plaintiff also filed medical certificates in respect of his illness along with his later application. It is against these orders that the two revision applications have been preferred by the plaintiff.
4. Learned Counsel for the plaintiff applicant contended that the plaint ff bad explained in his affidavit dated September 15, 1975 the reasons en account of which he was prevented from submitting the list of his witnesses within the statutory period of thirty days but the said affidavit of the plaintiff was not at alt considered by the trial court. On the other band, the learned Counsel for the defendant opposite party submitted that the trial court was justified in refusing to allow the plaintiff to examine his witnesses, as the plaint ff failed to submit a list of his witnesses within the period of thirty days and further that the discretionary order passed by the trial court should not be interfered with by this Court in its revisional jurisdiction.
5. I have considered the rival contentions. It is not disputed that the plaintiff bad filed a detailed affidavit OD September 15, 1975, giving reason or account of which he was unable to submit a list of his witnesses within the prescribed period of thirty days. The plaintiff stated in his aforesaid affidavit that he was an old man of 75 years and since the beginning of July 1975, he was suffering from blood pressure and kidney ailment and be was unable to move on account of the said illness and in these circumstances he could not instruct his lawyer for submitting the list of his witnesses. It may also be noted here that this submission on the part of the plaint ff was not controverter by the defendants the defendant did not even file a reply to the plaintiff's application dated September 15, 1976 nor did he produce any material or record to rebut the plaintiff's case in this respect.
6. Order XVI Rule 1 Civil Procedure Code, (as amended) in Rajasthan provides:
1. (i) On such date as the court may appoint and not later than thirty days after the settlement of issues, each party shall prefect in Court a lift of witnesses whom it proposes to produce:
(ii) No party shall produce or obtain process to enforce the attendance of witnesses other then 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.... ... ... ... ... ...... ... ... ... ... ...
Sub-rule (ii) of Rule 1 or Order XVI makes provision 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 (i) and it is incumbent upon the court while granting or refusing ouch permission to record reasons for doing so. Io the present case, the trial court has not given any reason for not accepting the grounds given by the plaintiff in his affidavit dated September 15, 1075 for not submitting the list of his witnesses within the specified period of thirty days. The only ground given by the trial court for refusing permission to the plaintiff to examine his witnesses mentioned in the list filed en September 15, 1975 was that a medical certificate was not filed. In view of the fact that the affidavit filed by the plaintiff in this respect was unrequited, there was no reason for the trial court for not accepting the grounds assigned by the plaintiff for the delay in filing the list of his witnesses. The ground for delay appears to be quite reasonable Merely the non production of a medical certificate could not be fatal in the circumstances of the case. It may also be pointed out that in this case the issues were framed on July 1, 1975 and only one adjournment had been granted on September 2, 1975 and soon thereafter, the plaintiff filed the list of his witnesses on September 15, 1975 along with his affidavit giving reasons for the delay caused in the filing of such list. I am of the view that the order passed by the learned trial court in the present case suffers from material irregularity in the exercise of its jurisdiction within the meaning of Clause (c) of Section 115, CPC as the trial court has committed a gross error in the matter of procedure. In Harakchand v. The State of Rajasthan 1970 R.L.W. 30, the Full Bench of this Court observed:
The provisions of the Civil Procedure Code are based on principles of natural justice or are designed to grant effectual bearing to the parties while deciding controversies raised in the proceedings before the Court. Some of these provisions are mandatory and some of the provisions are discretionary. Obviously, if the court exercised its jurisdiction one way or the other while administering discretionary provisions, there will be seldom any pi curd for revision unless the irregularity is of such material nature that the High Court considers that a fit case is made out for interference in revision.
There can be no doubt that the provisions of the Civil Procedure Code are designed to give effectual hearing to the parties as has been held in the aforesaid case. The purpose of the Code is to assist the Court in doing justice between the patties and the rules of procedure are intended to be a band maid to the administration of justice. The rules of procedure are not meant to be utilised for the purpose of penalising any of the parties. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. If the exercise at discretion by the trial court in a matter of procedure is perverse, then this Court is certainly entitled to interfere with each an order in hi revision jurisdiction, to the present case, I find that the trial court did not at all apply its mind to the facts narrated by the plaintiff in his affidavit dated September 15, 1975 but it proceeded to discard the plaintiff submission regarding the delay in filing the list of his witness only on the ground that a medical certificate was not filed. As a matter of fact the plaintiff did file a medical certificate subsequently with his application filed on October 10, 1975. The order passed by the trial court in respect of a matter of procedure without the application of its mind is certainly perverse and the irregularity committed in the present case is no doubt of material nature, as the effect thereof would be that the plaintiff would be deprived of an opportunity of adducing any evidence at all in the suit I, therefore, consider that the present case is a fit cue for interference by this Court in its revisional jurisdiction. Bath the revision applications are accordingly allowed. The orders passed by the trial court dated October 3, 1875 and October 16, 1975 are set aside and the trial court is directed to allow the plaintiff to examine in his evidence such witnesses whose names have been included in the list submitted by the plaintiff on September 15, 1975, provided the plaintiff pays a sum of Rs. 25/- as cost to the defendant within a period of one month from today or deposits the said amount in the trial court within the aforesaid period of one month. The parties are directed to appear before the trial court on December 6, 1976 for further proceedings in the suit. No separate notice need be issued by the trial court cow for the attendance of the patties before it. The record of the trial court should be sent back immediately.