Kailasa Bhoomiah vs Kailasa Eashwaralingam

Bhaskar Rao, J.—The only question in this revision is, whether the list of witnesses filed under Order 16 Rule 1 CPC, can be accepted even if it is so filed beyond 15 days after framing of the issues in the suit.

In this revision, the application filed condone the delay in filing the list of witnesses was dismissed by the lower court on the ground that it was filed after 10 months of framing of issues. The ground pleaded for delay by the petitioner is that he is old and not keeping good health.

Order 16 Rule 1 to the extent relevant and Rule 1A are as under:

List of witnesses and summons to witness:

(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 parts shall present in court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summons to such persons for their attendance in court.

(2) xx xx xx

(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.

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 under Rule 1, bring any witness to give evidence or to produce documents.

Though Sub-rule (1) of Rule 1 gives an impression that filing of the list-witnesses within 15 days from the date of settlement of issues is mandatory, but when it is read with Sub-rule (3) the impression gets faded because it permits calling of a person as a witness to the court though his name is not included in the list of witnesses, of course for sufficient reasons to be recorded. Thus, there is sufficient power vested in the court to condone the non-mention of a name in the list of witnesses, Equally Rule 1A permits any party to the suit to bring any witness to give evidence without applying for summons. A comprehensive reading of Rule 1 and 1A leads to an interpretation that filing of list of witnesses within 15 days is not mandatory and the party can file the same even beyond that but reasons to be explained for the delay. This interpretation is also one leaning towards the ultimate object of the ends of justice being met with.

It is now to be seen whether there are sufficient reasons given by the petitioner for the delay in the presenting the list. It is averred that the petitioner is an old man of 62 years and his health was not good and therefore he could not file the list in time. I feel satisfied that this is a matter where the delay can be condoned by permitting the receipt of list of witnesses.

Before parting with this matter, I may add that in Mange Ram Vs. Brij Mohan and Others, the Supreme Court held that non-mention of the names the witnesses is not material. The Supreme Court held:

...Where the party would be in a position to produce its witnesses without the assistance of the court, it can do so under Rule 1A of Order 16 irrespective of the fact whether the name of such witness is mentioned in the list or not.

Thus, this decision of the Supreme Court also fortifies the view I have expressed.

The Revision petition is accordingly allowed by setting aside the order of the lower court, and the lower court is directed to receive the list of witnesses and proceed according to law. No costs.