Judgment · High Court · 2012

This application under Article 227 of the Constitution of India read wit h Section 151 of the CPC is filed against the order dated 16-02-2012 passed by t he learned Munsiff 2, Nagaon in Title Suit No 107 of 2006, rejecting the petitio n dated 09-12-2011 praying for allowing the defendants to submit the list of wi tnesses, which was mistakenly, not filed earlier. 2. The aforesaid Suit was filed by the opposite party herein for de claration of right, title, interest and recovery of khas possession. The petitio ners, who are defendants in the Suit, contested the Suit by filing their written statement. The learned Trial Court had framed issues. 09-12-2011 was a date fix ed in the Suit for plaintiff’s evidence. On that very date, the defendants file d a petition, which came to be rejected, as has been noted herein above, by the order which is under challenge in this petition. 3. I have heard Mr. P. Sundi, learned counsel for the petitioners a nd Mr. S. Sarkar, learned counsel for the opposite party, and as agreed to by th e learned counsel for the parties, this petition is taken up for disposal at the admission stage.

#4. Mr. K. Sundi, learned counsel for the petitioners has submitted that though in the petition filed before the learned Trial Court, it was mention ed that no date was fixed for SBPH, the same is not correct as, in fact, dates were fixed for the said purpose and the learned Trial Court was right in observi ng that the contention of the defendants that no dates were fixed for SBPH is no t correct. He has submitted that the learned counsel for the defendants had omit ted to notice two dates fixed for the aforesaid purpose and was under the impres sion that no dates were fixed for submission of list of witnesses. The learned c ounsel submits that the learned Trial Court was in error in concluding that allo wing the defendants to file their list of witnesses when the plaintiff’s side ha d filed their evidence on affidavit, will prejudice the plaintiff. The learned c ounsel submits that even at this stage, the defendants can be permitted to file their list of witnesses. In support of his contention Mr. Sundi relies on the pr ovisions of Rule 1 and 1A of Order XVI CPC. 5. Per contra, Mr. S. Sarkar, learned counsel for the opposite par ty submits that the plea taken by the defendants is wholly untenable and such a plea is taken only with a view to delay the proceedings. The plaintiff had fil ed the list of witnesses on 03-09-2008. More than three years had gone by, when the defendants had filed the petition for allowing them to submit the list of wi tnesses and therefore, the learned Trial Court did not commit any irregularity or jurisdictional error in rejecting the petition. No case is made out for inter ference of the said order, he submits. 6. Rule 1 and Rule 1A of Order XVI reads as under : (cid:28) Rule 1. List of witnesses and summons to witnesses : (1) On or before such date as the Court may appoint, and not later than fift een days after the date on which the issues are settled, the parties shall prese nt in Court a list of witnesses whom they propose to call either to give evidenc e or to produce documents and obtain summonses to such persons for their attenda nce in Court. (2) A party desirous of obtaining any summons for the attendance of any pers on 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, wheth er 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 party shows suffic ient 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 in this beh alf within five days of presenting the list of witnesses under sub-rule (1)]. [ 1-A. Production of witnesses without summons- Subject to the provisions of sub -rule (3) of rule 1, any party to the suit may, without applying for summons und er rule 1, bring any witness to give evidence or to produce documents.] (cid:29). 7. Order XVI provides for summoning and attendance of witnesses. Su b-Rule 1 of Rule 1 of Order XVI imposes an obligation on every party to a suit t o present a list of witnesses whom it proposes to call either to give evidence o r to produce documents and obtain summonses to such persons for their attendance in Court. Sub-rule (2) requires that parties seeking the assistance of the Cour t for procuring the attendance of a witness must file in Court an application in dicating the purpose for which the witness is proposed to be summoned, Sub-rule (3) confers a discretion on the Court to permit a party to summon through Court or otherwise any witness other than those whose names appear in the list submitt ed under Sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. Rule 1A of Order XVI enables the parties to the suit to bring any witness to give evidence or to produce doc ument subject to provision contained in Sub-rule (3) of Rule 1 of Order XVI. 8. The Supreme Court in Mangi Ram -vs - Brij Mohan, reported in AIR 1983 SC 925, had interpreted Rule 1 and Rule 1A of Order XVI. It was laid down in the aforesaid case that the obligation to supply the list as well as the gist of the evidence of each witness whose name is entered in the list has to be car ried out in respect of those witnesses for procuring whose attendance the party needs the assistance of the Court. This is because when a summons is issued and served by the Court for procuring the presence of a witness and the person serve d fails to comply with the same, certain consequences in law ensue as provided i n Rule 10 of Order XVI and Rule 12 of Order XVI. It is in view of the above that the Court is to be satisfied about the necessity and relevance of evidence of s uch witness whose presence will be procured with the assistance of the Court and that explains the necessity of setting out of not only the names of witnesses i n the list but also the gist of evidence of each witness. Explaining Rule 1A of Order XVI, it is laid down that Rule 1A of Order XVI brings to surface two situa tions in which Rule 1 and Rule 1A operate. It was held that Rule 1A enables a pa rty to bring any witness to give evidence or to produce document without applyi ng for summons under Rule 1. Explaining the expression (cid:28) subject to the provisi on of Sub-rule (3) of Rule 1 (cid:29) appearing in Rule 1A, the Supreme Court laid d own that Sub-rule (3) of Rule 1 of Order XVI confers a wider jurisdiction on the Court to cater 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 R ule 1A and in such a situation, the party, perforce of necessity is to seek the assistance of Court under Sub-rule (3) to procure the presence of witness and th e Court may, if it is satisfied that the party has sufficient cause for the omi ssion to mention the name of such witness in the list filed under Sub-rule 1 of Rule 1, the Court may still extend its assistance for procuring the presence o f such a witness by issuing a summons through the Court or otherwise, which ord inarily the Court would not extend for procuring attendance of a witness whose n ame is not shown in the list. 9. (cid:28) 11. The analysis of the relevant provisions would clearly bring out the underl ying scheme under Order XVI, Rules 1 and 1A, and Rule 22 of the High Court Rules would not derogate from such scheme. The scheme is that after the court framed issues which gives notice to the parties what facts they have to prove for succe eding in the matter which notice would enable the parties to determine what evid ence oral and documentary it would like to lead, the party should file a list of witnesses with the gist of evidence of each witness in the court within the tim e prescribed by Sub-rule (1). This advance filing of list is necessary because summoning the witnesses by the court is a time consuming process and to avoid th e avoidable delay an obligation is cast on the party to file a list of witnesses whose presence the party desires to procure with the assistance of the Court. B ut if on the date fixed for recording the evidence, the party is able to keep hi s witnesses present despite the fact that the names of the witnesses are not sho wn in the list filed under Sub-rule (1) of Rule 1, the party would be entitled t o examine these witnesses and to produce documents through the witnesses who are The Supreme Court in Mange Ram (Supra) at paragraph 11 stated thus : called to produce documents under Rule 1A. The only jurisdiction the court has to decline to examine the witness is the one set out in proviso to Section 87(1) of ’1951 Act’, the discretion being confined to refusing to examine witnesses o n the ground that the evidence is either frivolous or vexatious or the evidence is led to delay the proceedings. Save this the court has no jurisdiction to decl ine to examine the witness produced by the party and kept present when the evide nce of the party is being recorded and is not closed, and the court has no juris diction to refuse to examine the witness who is present in the court on the shor t ground that the name of the witness was not mentioned in the list filed under sub-rule (1) of Rule 1 of Order XVI. This scheme clearly emerges from the variou s provisions herein discussed (cid:29). After taking note of Rule 1 and 1A of Order XVI, the Supreme Cou 10. rt in Vidhyadhar -vs- Manik Rao and Anr., reported in (1999) 3 SCC 573, in parag raph 31, laid down as follows : (cid:28) 31. These two Rules read together clearly indicate that it is open to a party to summon the witnesses 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 w itnesses filed by a party in the court, it may allow the party to produce a witn ess though he may not have been summoned through the court. Rule 1A which was in troduced by the Code of Civil Procedure (Amendment) Act, 1976 with effect from 0 1-02-1977 has placed the matter beyond doubt by providing in clear and specific terms that any party to the suit may bring any witness to give evidence or to pr oduce 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 witn ess who might have been brought by a party for that purpose, the leave of the co urt may be necessary but this by itself will not mean that Rule 1A was in deroga tion of Sub-rule (3) of Rule 1. The whole position was explained by this Court i n Mange Ram v. Brij Mohan in which it was held that Sub-rule (3) of Rule 1 and R ule 1A operate in two different areas and cater to two different situations. It was held: (pp. 43-44, para 10) (cid:28)There is no inner contradiction between sub-rule (1) of Rule 1 and Rule 1A of O rder XVI. Sub-rule (3) of Rule 1 of Order XVI confers a wider jurisdiction on th e court to cater to a situation where the party has failed to name the witness i n the list and yet the party is unable to produce him or her on his own under Ru le 1A and in such a situation the party of necessity has to seek the assistance of the court under Sub-rule (3) to procure the presence of the witness and the c ourt may if it is satisfied that the party has sufficient cause for the omission to mention the name of such witness in the list filed under sub-rule (1) of Rul e 1, still extend its assistance for procuring the presence of such a witness by issuing a summons through the court or otherwise which ordinarily the court wou ld not extend for procuring the attendance of a witness whose name is not shown in the list. Therefore, sub-rule (3) of Rule 1 and Rule 1A operate in two differ ent areas and cater to two different situations. (cid:29) 11. From the aforesaid judgments of the Supreme Court, it is apparen t that Rule 1A enables any party to a suit to bring any witness to give evidence or to produce documents without submitting a list of witnesses and without appl ying for summons. It also follows that for application of Sub-rule (3) of Rule ( 1), a list of witnesses must have been filed in terms of Sub-rule (1) of Rule 1 and application of Sub-rule (3) of Rule (1) cannot arise in a case where no suc h list of witnesses had been filed. 12. Coming to the facts of this case, it is nearly three and half ye ars from the date of framing of issues when the petition dated 09-12-2011 came t o be filed for permitting the defendants to file the list of witnesses, that too , on a ground which is not clearly borne out of records and which is also conced ed to by the learned counsel for the petitioners. Prejudice has many facets and therefore, allowing the defendants to submit their list of witnesses at this poi nt of time in clear infraction of Sub-rule (1) of Rule (I) of Order XVI will not be in furtherance of justice and the onus will now be on the defendants to pro duce their witnesses, if any, on the date to be fixed by the learned Trial Court for evidence of witnesses of defendants. The apprehension expressed by Mr. Sund i that in absence of list of witnesses, the defendants will not be allowed to a dduce any evidence is clearly misplaced in view of the discussions discussed h ereinabove. 13. In view of the aforesaid, there is no merit in this application and as such, the same is dismissed. However, the learned Trial Court will bear i n mind the observations made hereinabove while proceeding with the suit. 14. 15. The interim order stands vacated. No costs.