Guman Mal Lodha, J.
1. This is a civil second appeal under Section 100 CPC directing against the judgment & decree passed by the District Judge, Jaipur District, confirming the judgment and decree passed by Civil & Asstt. Sessions Judge, Jaipur.
2. The appellant before this court is the plaintiff who, has got a house in Chowkri Purani Basti, Jaipur, adjacent to the disputed house. Both the disputed house and the plaintiff's house are parts of the same 'Haveli'. The disputed house was originally owned by the defendant No. 2 M.M. Tiwari Two chowks, 'Pole', staircase and latrine in the Haveli' are in the joint ownership of the plaintiff, the defendants and other residents of the Haveli.
3. On 12th June, 1962, the defendant No. 2 executed a sale deed of the house in dispute for Rs. 6700/- in favour of the defendant No. 1 Smt. Sarjoo Devi.
4. The plaintiff being a co-sharer asserted the right of pre-emption.
5. The plaintiff's case is that there is custom of pre-emption in the State of Jaipur and the defendant No. 2 could not have sold the disputed property to anyone except the plantiff and she was willing to purchase the suit property. The suit was filed for pre-emption. The trial court held that the making of Talabs was necessary but no 'Talabs' were made in the present case. It further held that the plaintiff waived her right. Ultimately, the suit was dismissed. The first appellate court confirmed the finding that, the plaintiff waived her rights of pre-emption and she is deprived from raising the suit.
6. Before this court, Shri B.P. Agrawal, the learned counsel for the appellant, submitted that no offer of the purchase of the property in dispute was made to the plaintiff before or after the sale in question. This should have been done after concluding the agreement to sell between the seller and the purchaser. It was argued that the custom is co-extensive with Moham-madan Law, and the surrender of right of pre-emption can only be made after the sale. A reference was made to the judgment of this court in Bhatt Nandlal v. Nagarmal & Gopalbux Civil Appellate Jurisdiction No. 16 of 1949 D.B. decided on 24 July, 51, unreported. It was asserted that even if the plaintiff refused to purchase, there is no waiver, and the right of pre-emption is not lost as it was before the sale. Reference was made to Mulla's Principles of Mohammedan Law Articles 242 and 243 at P. 278.
7. Reference was also made to the decision of this court in Sobhraj Mal and Ors. v. Mst Kamla 1975 WLN (UC) 360 para 13.
8. Shri Agrawal also relied upon the decision of Apex Court in Ram Saran Loll v. Domini Kuer : 2SCR474 wherein, it has been held that the right of pre-emption arises only after the sale deed is executed.
9. On the point of waiver, Shri Agrawal referred to the decision in Associated Hotels of India Ltd. v. SB. Sardar Ranjeet Singh : 2SCR548 Para 14 wherein it was held that there can be no waiver against a person against whom, the waiver is pleaded; had full knowledge of his rights.
10. It was argued that there was no pleading that, M.M. Tiwari, the defendant No. 2, made an offer to the plaintiff to purchase the property. Reliance was placed upon a portion of sale deed Ex. A-2. in which it was mentioned that if there would be any suit for pre-emption then Smt. Sarjoo Devi, the purchaser, would be responsible for it.
11. The respondents, in reply to both, the verbal and written arguments, first emphasised the finding of the Civil Judge and the first appellate court. On evidence, it was pointed out that, it has been proved that the property in dispute was offered for sale to the plaintiff for Rs. 3000/-but, she declined to it because she had no money. It was then found the keys of the house were left by the defendant not the vendor, in possession of the plaintiff for showing the house to the intending purchasers and the plaintiff showed it to the defendent No. 1. It was then found as proved that the plaintiff kept quiet for about one year and allowed the defendant to spend money for additions and alterations.
12. Regarding the judgment referred to by the learned counsel for the appellant, of Bhatt Nand Lal v. Nagarmal Gopalbux (supra), it has been mentioned that photo-stat copies have not been given to the respondent, and, therefore, no reply can be given.
13. Regarding applicability of the principles of Mohammedan Law, it was pointed out that the provisions with regard to the 'Talabs' were modified; and the judgment in Sobhraj Mal v. Mst. Kamla Devi (supra) cited by The learned counsel for the appellant is not applicable, according to the respondent.
14. The emphasis was laid on the judgment of this court in Kala Devi v. Radha Kishan D.B. Civil Special Appeal No. 7/77 decided on 4th October, 1980, wherein there was difference of opinions between two judges; and the matter was referred to a third Judge, who agreed with Kudal, J., that, there can be waiver. It was then argued that the judgment in Ramsharan Lal v. Mst. Domini Kuer (supra) cited by the learned counsel for the appellant is not applicable.
15. The learned counsel for the respondent pointed out that it has been proved that the plaintiff had no money and her own house was mortgaged and when the keys of the suit property were With the plaintiff for showing it to the intending purchasers; the suit property was shown to the defendant No. 1 by the plaintiff; the price and consideration of which were quoted to the defendant No. 1 by the plaintiff; and she assured that she had no objection if the suit property is purchased by the defendant No. 1. Even the plaintiff made no objection for alterations and constructions made by the defendant in the suit property; therefore, the waiver is fully proved, argued Shri Rastogi JS, the learned counsel for the respondent No. 1.
16. Shri Agrawal in rejoinder pointed out that the principles laid down in Kala Devi v. Radha Kishan (supra) cited by the learned counsel for the respondent, are not applicable. In that case, notice (Ex. A. 3) was published in the Newspaper regarding sale of property after agreement, Ex. A. 1) between the Vendor and the Vendee had taken place. Shri Agrawal again emphasised that there is no allegation that the vendor M.M. Tiwari offered it to the plaintiff and the averments in the sale-deed are contrary, and, therefore, the waiver is not proved.
17. Both, in grounds of appeal and the arguments, it was emphasised, that proper opportunity was not afforded to the plaintiff-appellant to produce the evidence and the evidence was wrongly closed. The order dated the 10th August, 1964 of the trial court closing the evidence was challenged.
18. It was argued that the trial court has got a wide power under Order 16, Rule 1 CPC even though a list has not been filed within 30 days.
19. The learned counsel for the appellant submitted that as per the decision of this court in Bhanwar Singh v. Girraj Prasad 1977 RLW 476 the principle of law is well settled that a party cannot be debarred from producing the witnesses merely because, the list was not filed within the prescribed time.
20. In Dal Chand v. Ramakant 1971 RLW 416 Chhangani, J. (as he then was) considered this aspect of the case and in particular the amendments to Order 6, Rule 1, sub-rules (i) and (ii) CPC were concerned. The decision in Mst. Tulsi Bai v. Chunni Lal 1964 RLW 253 was also considered, and the court finally observed in para 15 as under:
I feel strongly inclined to take the view that the courts have been given discretion to permit parties to produce witnesses or to get them summoned even in case where initial lists were not filed.
21. This position has been made clear by the amendment made vide S.C. 25 dated 6-10-1970 published on 19-11-1970. The observations of the Apex Court in Sangram Singh v. Election Tribunal, Kotah : 2SCR1 also point out to the necessity of having a liberal approach.
22. Kudal, J. (as he then was) in Bhanwar Singh v. Girraj Prasad (supra) interpreted Order 16, Rule 1 CPC and held that the court has ample discretion to give reasonable opportunity to a party who has to file the list of witnesses within the stipulated time.
23. In Satrtam Transport Co. v. Prakash Mal Surana 1980 RLW 213 this court has again emphasised that Order 16, Rule 1 CPC should be construed liberally. The observations made are as under:
The provisions contained in Order 16, Rule 1 CPC should be construed by the courts liberally. The evidence should not be normally shut, unless the conduct of the parties is grossly negligent and there are serious laches on its part the wrong and unwarranted exercise of discrection, gives rise to avoidable litigations in the form of appeals and revisions and setting aside of such orders in appeals and revisions, would further result in prolongation of the litigation, thereby the very object of the statutory provisions intended to curb the delays, would be defeated. Thus, the trial courts should so exercise their discretion and conduct the lis in such a manner, which may avoid unnecessary litigation and advance substantial justice, unless they are required to adopt a different course, either by force of circumstances, or where their hands are tied by law.
24. When the learned counsel for the appellant emphasised the above required in his supplementary arguments, Shri J.S. Rastogi, the learned counsel for the respondent No. I, submitted that this was not the theme of the main argument in appeal nor in written arguments; and further that no injustice has been caused to the appellant.
25. In reply, the learned counsel for the appellant pointed out that in the grounds of appeal first three grounds emphasised this aspect of the infirmity only and there has been serious failure of justice and prejudice to the appellant because they could not lead material evidence on all questions specially on the question of waiver.
26. I find that the issues were framed on 23rd January, 1964. No doubt, list was not filed within 30 days but it was filed a little later with an application.
27. The order sheet dated l0th August, 1964 shows that the evidence was closed merely on the ground that the list of the witnesses were not filed within a period of 30 days. The reasons given in the application for non-filing of the list were not examined, at all. A perusal of the various orders passed by the court shows that from 23-1-1964 on which date, the issues were framed and the case was fixed for filing the list of the witnesses and the evidence on 27-3-1974.On this date, two application were filed and the case was adjourened for the arguments for 27th April, 1964 and then the arguments were heard on 7th July, 1964. The case was adjourned for 17-7-1964 and 23-7-1964. Thus it would be seen from 23-1-64 to 10-8-1964 for about 7 months the case was adjourned from time to time and yet ultimately the application dated 10th March, 1964 submitting list of witnesses was not accepted on the technical ground of delay.
28. It is now established law in order to do substantial justice, technical rules of procedure should not be adopted like rituals. The trial court did not even discuss the reasons given in the application for the submission of list of witnesses at late stage. In my opinion, there were sufficient and good reasons and in any case, in could have been compensated by costs.
29. It is not a case where no list of witnesses were filed at all at any stage but there was some delay on account of bonafide and sufficient cause. The rules of procedure are subservient to the principal and main object of administration of justice and they cannot be allowed to create impediment and retard it. The procedural wringers should not be given proprtionate importance to throttle justice.
30. The question of waiver in the present case is a question of great importance and the closure of the plaintiff's evidence without permitting her to examine her witnesses has resulted in a serious failure of justice.
31. I would, therefore, prefer to adopt the procedure which would enhance the justice rather than retard justice. Undoubtedly, it would result in a remand of the case further even almost two decades. This can be compensated by payment of costs to the defendant which should be Rs. 100/-(one hundred) in the facts and circumstances of this case, in addition to the costs of this appeal, first appeal and trial jurisdiction spent so far by the contesting defendant.
32. On payment of the above costs within a period of 3 months form today, the trial court would record the evidence of the plaintiffs as per the list of the witnesses filed and would also allow additional evidence to be produced if sufficient cause is shown and if it is material, & then permit the defendant to lead evidence in rebuttal. The entire case then should be decided afresh according to law.
33. In the result this appeal is accepted as indicated above and the case is remanded back to the trial court for proceeding further in accordance with the above directions.