Writ Petition No.3282 of 2005

11th November, 2013

Petitioner Counsel: Mr. KIRAN N. JOSHI

JUDGMENT

JUDGMENT :- The above Writ Petition filed under Article 227 of the Constitution of India takes exception to the order dated 15/03/2005 passed by the Joint Civil Judge, Junior Division, Kalyan by which order the application Exhibit 28 filed by the Respondent/Orgi. Plaintiff for summoning the witnesses through court was held not maintainable. However, the Plaintiff was allowed to produce the said witnesses and examine them in view of the provisions of Order XVI Rule 1-A of the Code of Civil Procedure.

2. A short question therefore which arises for consideration is whether the court could have allowed the Plaintiff to produce and examine the witnesses having regard to Order XVI Rule 1-A of the Code of Civil Procedure.

3. In the suit in question being Regular Civil Suit No.289 of 1999 the Plaintiff had examined himself. It is an undisputed position that the Plaintiff had not filed the list of witnesses who he desired to examine and in respect of whom he desired that the summons be issued. It is after the examination of the Plaintiff was over that the Plaintiff had filed an application on 17/08/2004 for the witness summons being issued to two persons i.e. one Ambavane Kishor and one Shri Sunil Joshi, the Executive Engineer, Kalyan Dombivali Municipal Corporation. Except asking for summons be issued to the said two persons, nothing else was stated by the Plaintiff. The said application filed by the Plaintiff was opposed on behalf of the Defendants i.e. the Petitioners herein. The opposition was principally on the ground that since the persons in respect of whom the Plaintiff wanted summons be issued were not cited as witnesses in any list filed by the Plaintiff, the Plaintiff ought to give the reasons as to why he wanted to examine them and as to why their names were not appearing in the list of witnesses when the Plaintiff desired to examine them. The Defendants therefore prayed that the said application was not maintainable having regard to Order XVI Rule 1 of the Code of Civil Procedure.

4. The Trial Court considered the said application and having regard to the provisions of Order XVI Rule 1(1) of the Code of Civil Procedure held that the said application was not maintainable, but surprisingly thereafter held that the Plaintiff could examine the said witnesses without assistance of the Court, having regard to Rule 1-A of Order XVI of the Code of Civil Procedure. As indicated above, it is the said order which is impugned in the present Writ Petition.

5. Heard Shri Joshi the learned counsel appearing for the Petitioners. None appears for the Respondents, though served.

6. In the context of the controversy which is involved in the present Petition it would be apposite to refer to Order XVI Rule 1 (1), Rule 1(3) and Rule 1-A, the same are reproduced herein 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 persons for their attendance in Court.

(2) --------------------------

(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 party shows sufficient cause for the omission to mention the name of such witness in the said list;

(4) ---------------------------

1-A Production of witnesses without summons:- Subject to the provisions of subrule (3) of rule 1, any party to the suit may, without applying for summons under rule 1, bring any witness to give evidence or to produce documents."

Hence, in terms of Rule 1 (1) of Order XVI of the CPC the parties are obliged to submit a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court and that the same has to be done within the time stipulated in Rule 1 of Order XVI of the CPC. In so far as Rule 1A of Order XVI of the CPC is concerned, it postulates that subject to the provisions of sub-rule (3) of Rule1, any party to the suit may, without applying for summons under Rule1, bring any witness to give evidence or to produce documents. Hence Rule 1-A of Order XVI is subject to the provisions of sub-rule (3) of Rule 1 of Order XVI. The said sub-rule (3) contemplates that 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 Rule 1 (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.

In the instant case, as indicated above, the application dated 17/08/2004 is bereft of any reason as to why the names of the said two witnesses whom the Plaintiff wanted to examine were not made part of the list of witnesses and filed in the Court. The said application is also bereft of any reasons as to why the Plaintiff wanted to examine them after his examination was over. Since the pre-requisite for permitting examination of the witnesses is on the basis of the Plaintiff showing sufficient cause. In the absence of Plaintiff showing sufficient cause in the instant case, as the application is bereft of any reason, the Plaintiff could not be allowed to examine the witnesses even under Rule 1-A of Order XVI of the CPC. The Trial Court as can be seen has totally glossed over the fact that Rule 1-A of Order XVI is controlled by sub-rule 3. It is only if the Plaintiff satisfies the court by showing sufficient cause then powers can be exercised under Rule 1-A. In the instant case, as indicated above, the application in question is bereft of any reason and therefore the Plaintiff cannot be said to have shown sufficient cause and therefore the Trial Court had erred in allowing the Plaintiff to examine the witnesses by having recourse to Rule 1-A of Order XVI of the CPC. In that view of the matter the impugned order is required to be quashed and set aside and is accordingly quashed and set aside. Rule is accordingly made absolute in the aforesaid terms with no order as to costs.

Petition allowed.