Dinesh Jain vs Krishan Kumar Gupta

Shiv Narayan Dhingra, J.—The petitioner has assailed an order dared 28th May, 2008 whereby an application of the petitioner for connotation of delay in filing list of witnesses along with an application for examination of one Pawan Kumar Jain, Advocate, who was appointed as a Local Commissioner in another suit, was dismissed and the evidence of the petitioner (defendant at the Trial Court) was closed. The petitioner states that the Trial Court failed to consider the provision of Order 16 Rule 1 and 1(A) and the order passed by the Trial Court was illegal. Order 16 Rule 1 and 1(A) reads as under:

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 document and obtain summonses to such persons for their attendance in Court.

(2) A party desirous of obtaining any summons for the attendance of any person shall file in Court and 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 party 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 (30) of rule 1, any arty to the suit may, without applying for summons under rule 1, bring any witness to give evidence or to produce documents.]

A perusal of the above Order 16 Rule 1 shows that the parties are supposed to file list of witnesses within 15 days of framing of issues and they have to obtain summons of such witnesses whose presence is sought in the Court for evidence. Sub-Rule 3 provides that the Court may permit a party to call a witness either by summoning or otherwise whose name does not appear in the list of witnesses, if party shows sufficient cause for omission to mention its name in the list. It is clear that both plaintiff and defendant are supposed to file list of witnesses whom they intend to examine, whether assistance of the Court is needed to summon them or not. There is no escape from filling list of witnesses. Rule 1(A) provides that party may, without applying for summons under Rule 1, bring any witness to give evidence or to produce documents in the Court. This Rule is also subject to Rule 1 sub-Rule 3 which clearly means that the name of witness should be either in the list or the party must show sufficient cause for omission its name in the list.

In Lalitha J. Rai Vs. Aithappa Rai, Supreme Court held that where list of witnesses was not filed within prescribed time and plaintiff subsequently files a list stating that he was under bonafide impression that he had already filed the list along with documents and mistake was discovered when they were got ready for trial, the Trial Court committed illegality in refusing to receive the list for summoning the witnesses.

Filing of list of witnesses is not a mere formality and is not a superfluous act. List of witnesses if filed by the parties to apprise the Court as well as the opposite party as to what evidence will be produced by the party to prove its case. If there is a bonafide mistake and sufficient reasons are given by the party, the Court should allow the filling of such a list. However, if no bonafide reasons are given and the party keeps sleeping, there is no reason for allowing a party to file a list of witnesses later on.

In the present case, the defendant had not filed list of witnesses. However, defendant was allowed to examine the witnesses without a list. After examining his three witness''s defendant filed a list of witnesses along with an application for summoning Mr. P.K. Jain, Advocate stating therein that list of witnesses could not be filed due to oversight and non-advice by counsel for the defendant. Thus the total approach of the petitioner was casual, thinking that filing of list of witnesses was a mere superfluous act and can be done at any point of time. I consider this approach has to be curbed. Filling of list of witnesses must take place as per order 16 Rule 1 and delay in filing list of witnesses can be condoned by the Trial Court only for sufficient reasons. Non-advice by the counsel or oversight is not a sufficient ground.

As far as allowing Pawan Kumar Jain, Advocate to be examined as a witness is concerned, I consider that the Trial Court rightly refused this application. The object of appointing Local Commissioner is not to collect evidence which can be best taken in the Court. The local investigation through a Court Commissioner is merely to assist the Court in deciding particular application and such report is not binding on the Court. The Court Commissioner cannot be appointed to collect evidence nor he can be produced by a party as a witnesses on his side.

In the present case, the local Commissioner was not appointed in this case. The Local Commissioner was appointed in another case. It is the case of respondent that after getting Local Commissioner appointed ex parte, petitioner took forcible possession of the premises and obtained a report from the Local Commissioner. I therefore consider that Local Commissioner was rightly not allowed to be examined as a witness. The Court below had not refused examination of any witness produced by the petitioner before the Court. I find no merits in the petition. The petition is hereby dismissed.