DUKHU KHAIRA vs BOLAI KHAIRA @ BOLO RAM RAI

Aggrieved of the orders dated 23.06.2006, 07.07.2006 and 27.09.2006 passed in Title (Partition) Suit No.89 of 2004, the petitioner has approached

this Court.Â

The petitioner is the plaintiff in the partition suit which has been filed for 1/3rd share in schedule-A properties to the plaintiff, who claims himself

adopted son of Mongal Khaira. On 15.06.2006, plaintiff’s evidence was closed and an application for recall of the said order was filed on

16.06.2006. Another application under Order XVI Rule 1 (3) CPC for accepting additional list of witnesses was filed on 16.06.2006. By an order

dated 23.06.2006 the trial Judge has recalled the order dated 15.06.2006 by which the plaintiff’s evidence was closed, however, the application for

accepting additional list of witnesses was rejected. A similar application was filed by the plaintiff on 28.06.2006. This application has also been

dismissed on the ground that the plaintiff has failed to show sufficient cause for omission in not including the witnesses who are mentioned in the

additional list of witnesses. This order was challenged by the plaintiff by filing an application under Order XLVII Rule 1 CPC. Finding no substance in

the application for review the trial Judge has dismissed the said application by an order dated 27.09.2006. Â

Order XVI Rule 1 CPC provides that on or before such date as the Court may appoint, the parties shall present a list of witnesses who they

propose to call either to give evidence or to produce documents. Sub-rule 3 to Rule 1 Order XVI CPC, however, permits a party to examine any

witness other than those whose name appeared in the list of witnesses either by summoning through the Court or otherwise. Sub-rule 3 mandates

that while allowing an application under this sub-rule, the Court is required to record reasons. The trial Judge in its orders dated 23.06.2006 and

27.09.2006 has recorded a finding that the plaintiff has failed to disclose any reason for not examining witnesses whom he proposes to examine by

producing additional list of witnesses. Only plea taken by the plaintiff was inadvertence. The materials produced on the record would disclose

that this was not a reason rather, when many of the plaintiff’s witnesses did not support his case; the plaintiff has pleaded that they were won

over by the defendants, on closure of the evidence an additional list of witnesses has been filed.  Â

Finding no infirmity in the orders dated 23.06.2006, 07.07.2006 and 27.09.2006, the writ petition is

dismissed.                Â