K.S. Lodha, J.
1. This is a defendant's revision against the order of the learned Munsif, Bhinmal dated 25-9-82, by which the defendant's request for examining the witness, who was present in Court was turned down by the learned Munsif on the ground that the name of this witness was not mentioned in the list of witnesses required to be filed under Order 16 Rule 1 CPC and no reason was mentioned for the non-inclusion of his name in order to enable the court to give permission to examine that witness under Order 16 Rule 1(3).
2. I have heat d the earned Counsel for the parties. The controversy appears to have been set at rest by the decision of their lordships of the Supreme Court in Manga Ram v. Brij Mohan : 3SCR525 , It was observed as under:
Where the party wants the assistance of the Court to procure presence of a witness on being summoned through the Court, it is obligatory on the party to file the list with the gist of evidence of witness in the Court as directed by Sub-rule (1) of Rule 1 and make an application as provided by Sub-rule (2) of Rule 1 But where the party would be in a position to produce its witnesses without the assistance of the Court, it can do so under Rule 1-A of Order 16 irrespective of the fact whether the name of such witness is mentioned in the list or not.
The Court further observed as under:
There is no inner contradiction between Sub-rule (1) of Rule 1 and Rule 1-A of Order 16. Sub-rule (3) of Rule 1 of Order 16 confers a wider jurisdiction on the Court to a situation where the party has failed to name the witness in the list and yet the party is unable to produce him or her on his own under Rule 1-A. There fore, Sub-rule (3) of Rule 1 and Rule 1-A, operate in two different areas and cater to two different situations.
In these circumstances, when the witness was present in the court, the court could not have refused to examine him merely on the ground that his name was net mentioned in the list. In this view of the decision of the Hon'ble Supreme Court, I need not refer to the decision of this Court or other High Courts taking a little different view.
4. The revision is, accordingly, allowed, the order of the learned Munsif, Bhinmal, dated 25-9-82 is set aside. The defendant shall be entitled to examine the witness or witnesses whom he can keep ready before the court although their names may not be mentioned in the list under Order 16 Rules 1 CPC The parties are directed to appear before the learned Munsif on 28-11-83 and on that date, the learned Munsif will fix another date for the defendant's evidence. The defendant shall produce all his witnesses on that date and shall not ask for any further adjournment. Looking to the circumstances of the case, there shall be no order as to costs.