1 - Ramkumar Agrawal ( v. 1 - State Of Chhattisgarh Through The Secretary, Department Of Revenue, Mantralaya, Mahanadi Bhawan
Case Details
SMT NIRMALA RAO 1 2025:CGHC:37410 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 404 of 2025 1 - Ramkumar Agrawal ( Petitioner In Person) S/o Beni Prasad Agrawal Aged About 80 Years R/o Behind Kabibada, Ward No. 1, Now Ward No. 14, Shankar Nagar, Mahasamund P.S. Kotwali Mahasamund, District Mahasamund Chhattisgarh. versus 1 - State Of Chhattisgarh Through The Secretary, Department Of Revenue, Mantralaya, Mahanadi Bhawan, Naya Raipur, District Raipur Chhattisgarh. ... Petitioner(s) 2 Collector District Mahasamund, Chhattisgarh. 3 Tahsildar Tahsil Mahasamund, District Mahasamund, Chhattisgarh. 4 - Veer Singh Sonwani S/o Siyan Das Aged About 66 Years R/o Behind Kabirbada, Wad No. 1, Now Ward No. 14, Shankar Nagar, Mahasamund, P.S. Kotwali, Mahasamund, District Mahasamund Chhattisgarh. 5 - Karan Sonwani S/o Veer Singh Sonwani Aged About 38 Years R/o Behind Kabirbada, Wad No. 1, Now Ward No. 14, Shankar Nagar, Mahasamund, P.S. Kotwali, Mahasamund, District Mahasamund Chhattisgarh. 6 - Hari Singh Sonwani S/o Veer Singh Sonwani Aged About 34 Years R/o Behind Kabirbada, Wad No. 1, Now Ward No. 14, Shankar Nagar, Mahasamund, Mahasamund Chhattisgarh. Mahasamund, Kotwali, District P.S. 7 - Ravi Sonwani S/o Veer Singh Sonwani Aged About 32 Years R/o Behind Kabirbada, Wad No. 1, Now Ward No. 14, Shankar Nagar, Mahasamund, P.S. Kotwali, Mahasamund, District Mahasamund Chhattisgarh. 8 - Bharti Sonwani W/o Karan Sonwani Aged About 32 Years R/o Behind Kabirbada, Wad No. 1, Now Ward No. 14, Shankar Nagar, Mahasamund, P.S. Kotwali, Mahasamund, District Mahasamund Chhattisgarh. 9 - Ved Bai W/o Hari Singh Sonwani Aged About 30 Years R/o Behind Kabirbada, Wad No. 1, Now Ward No. 14, Shankar Nagar, Mahasamund, P.S. Kotwali, Mahasamund, District Mahasamund Chhattisgarh. 10 - Khemin Sonwani W/o Ravi Sonwani Aged About 28 Years R/o Behind Kabirbada, Wad No. 1, Now Ward No. 14, Shankar Nagar, Mahasamund, P.S. Kotwali, Mahasamund, District Mahasamund Chhattisgarh. ... Respondent(s) 2 For Petitioner For Respondents/ State For Private Respondents : : :
Legal Reasoning
introduced by the Code of Civil Procedure (Amendment) Act, 1976 with effect from 01.02.1977 has placed the matter beyond doubt by providing in clear and specified terms that any party to the suit may bring any witness to give evidence or to produce documents. Since this Rule is subject to the provisions of sub-rule (3) of Rule 1, all that can be contended is that before proceeding to examine any witness who might have been brought by a party for that purpose, the leave of the Court may be necessary but this by itself will not mean that Rule 1A was in derogation of sub-rule (3) of Rule 1. The whole position was explained by this Court in Mange Ram Vs. Brij Mohan, AIR 1983 SC 925: (1983) 4 SCC 36: (1983) 3 SCR 525, in which it was held that sub-rule (3) of Rule 1 and Rule 1A operate in two different areas and cater to two different situations." 9. The Hon’ble Supreme Court in the matter of Sangram Singh Versus Election Tribunal, Kotah reported in AIR 1955 SC 425 held that “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.” 10. The Hon’ble Supreme Court in the matter of Sushil Kumar Sen Versus State of Bihar reported in 1975 (1) SCC 774 has held that “morality of justice at the hands of law troubles a judge’s conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable.” 6 11. The Hon’ble Supreme Court in the matter of State of Punjab Versus Shamlal Murari reported in 1976 (1) SCC 719 held that “processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.” 12. In the present case, the learned trial Court has rejected the application moved under Order 16 Rule 2 of CPC holding that the case pertains to getting compensation and the plaintiff has not clarified which point of his case the said witnesses will prove and as the plaintiff has not shown a clear reason as to why these witnesses were not presented in the list of witnesses earlier. 13. In this respect, the approach of the learned trial Court appears to be erroneous. 14. Taking into consideration the above-discussed facts and the law laid down by the Apex Court in the matters of Vidhyadhar (supra), Sangram Singh (supra), Sushil Kumar Sen (supra) and Shamlal Murari (supra), the order passed by the learned trial Court dated 09.05.2025 whereby the application moved by the plaintiff under Order 16 Rule 2 of CPC was rejected is hereby set-aside and the petition stands allowed. 15. The application moved under Order 16 Rule 2 of CPC stands allowed, and the learned trial Court is directed to issue a summons to the proposed witness to record his evidence. Nimmi Sd/- (Rakesh Mohan Pandey) Judge
Arguments
Petitioner - Ram Kumar Agrawal, present in person. Shri Sanjeev Agrawal, P.L. None present though served. Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 30.07.2025 1. 2. Heard on admission. The petitioner has challenged the order passed by the learned Civil Judge, Senior Division, District–Mahasamund (C.G.), in Civil Suit No. 3B/2021 dated 30.01.2025, whereby an application moved by the petitioner under Order 16 Rule 2 of CPC has been rejected on the ground that the proposed witnesses are not listed witnesses and the application has been moved after four years. 3. The petitioner/plaintiff instituted a civil suit for declaration of title, perpetual injunction and further, for the declaration of the sale-deed dated 1.6.1994 as null and void. 4. The petitioner submits that two witnesses of the plaintiff have already been examined by the trial Court. Additionally, defendants No.1 to 9 have not filed their list of witnesses, and the defendants have indicated that they do not intend to produce any witnesses before the learned trial Court. He contends that an application was moved under Order 16 of CPC to examine the witnesses to prove certain documents. The relevance of the documents has been narrated in the application itself. He further contends that as the plaintiff’s witnesses are being examined, the learned Trial Court ought to have allowed the 3 application. He prays to set aside the order impugned and allow the petition. On the other hand, learned State counsel opposes. Heard learned counsel for the parties and perused the documents 5. 6. placed on the record. 7. Order 16 Rules 1, 2 and 3 of CPC read as under:- 1.List of witnesses and summons to witnesses.- (1)On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such person for their attendance in Court. (2)A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. (3)The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such part shows sufficient cause for the omission to mention the name of such witness in the said list. (4)Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the [Court in this behalf within five days of presenting the list of witnesses under sub-rule (1).] 1A. Production of witnesses without summons-. subject to the provisions of sub-rule (3) of rule 1, and party to the suit may, without applying for summons under rule 1, bring any witness to give evidence or to produce documents. 2. Expenses of witnesses to be paid into Court on applying for summons. - (1)The party applying for a summons shall, before the summons is granted and within a period to be fixed, pay into Court such a sum of money as appears to the Court to be sufficient to defray the traveling and other expenses of the person summoned in passing to and from the Court in which he is required to attend, and for one day's attendance. (2)Experts-In determining the amount payable under this rule, the Court may, in the case of any person summoned to 4 give evidence as an expert, allow reasonable remuneration for the time occupied both in giving evidence and in performing any work of an expert character necessary for the case. (3)Scale of expenses.-Where the Court is subordinate to High Court, regard shall be had, in fixing the scale of such expenses to a any rules made in that behalf. (4)Expenses to be directly paid to witnesses.-Where the summons is served directly by the party on a witness, the expenses referred to in sub-rule (1) shall be paid to the witness by the party or his agent. 3. Tender of expenses to witness. - The sum so paid into Court shall be tendered to the person summoned, at the time of serving the summons, if it can be served personally 8. The Hon’ble Supreme Court in the matter of Vidhyadhar Versus Manikrao reported in AIR 1999 SC 1441 has opined in relation to these rules that “it is open to the parties to summon the witness or without applying the summons, bring the witness to lead evidence or to produce documents”. It is further held that “Sub-rule (1) of Rule 1 provides that although the name of a witness may not find place in the list of witnesses filed by a party in the Court, it may allow the party to produce a witness though he may not have been summoned through the Court. The leave of the court may be necessary but this by itself will not mean that Rule 1A was in derogation of sub-rule (3) of Rule 1.” Relevant para of the aforementioned judgment is reproduced herein below:- “30. These two Rules read together clearly indicate that it is open to a party to summon the witness to the Court or may, without applying for summons, bring the witnesses to give evidence or to produce documents. Sub- rule (3) of Rule 1 provides that although the name of a witness may not find place in the list of witnesses filed by a party in the Court, it may allow the party to produce a witness though he may not have been summoned through the Court. Rule 1A which was 5