Khairati Lal vs Kishori Lal

The petitioner is the tenant of respondent and is resisting the ejectment suit pending before learned Sub Judge, Kathua. He filed an application

under Order 16 rule 3 C.P.C. before the trial court on 8.1.1992 praying therein that he be a flowed to produce fresh list of witnesses to summon

them through court. His application has been rejected vide order dated 18.9.1993. He has filed a revision petition to assail the order on variety of

grounds.

It is submitted by learned counsel for the petitioner. Mr.. Thakur, that the trial court has rejected the prayer after the petitioner had established a

sufficient cause for summoning the new witnesses. The Court, it is urged should not have drawn a presumption against the petitioner which in any

way could not have been drawn against him, and should have decided the application on merits. On the contrary, it had resorted to the

technicalities to dismiss the application without appreciating that no prejudice would be caused to the plaintiff in the process. He pointed out that in

the suit evidence of the defendant has been ordered but so far no DW had been examined. According to him, some supervening events had taken

place during the pendency of the suit necessitating fresh list of witnesses which had an important bearing on the fate of the case. He urged that the

trial court had compounded the error by attributing default to the petitioner without taking a view whether he had succeeded in establishing a

sufficient cause as required under Order 16 rule 3 C.P.C.

Mr. J.P. Singh, learned counsel for the respondent justified the order impugned by submitting that the petitioner had failed to satisfy the bare

minimum requirements of Order 16 Rule 3 C. P.C. He said that the petitioner had been casual and negligent in filing application and had not even

cared to mention the names of the witnesses he proposed to summon, not to speak to the gist of the evidence which they were required or

expected to give. Similarly he had not indicated as to how and when ""new facts"" had come to his knowledge warranting the filing of fresh list of

witnesses. His efforts was only to protract the proceedings and to defeat the cause of the respondent by resorting to dilatory tactics.

I have heard learned counsel for the parties and examined the record. It becomes necessary to refer to the relevant provisions to appreciate the

rival contentions of the parties. Order 16 and its relevant rules, read thus:

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 were settled, the parties shall present in Court a list of witnesses whom they propose to cad either to give evidence or to

produce documents and obtain summons to such person for their attendance in Court.

(2) A party desirous of obtaining any summons for the attendance of any person 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, whether by summoning through Court or otherwise., any witness, other than

those whose names appear in the list referred to in subrule (1), if such party shows sufficient cause for the omission to mention the name of such

witness in the said list.

A perusal of the provisions show that the parties are required to submit their list of witnesses whom they propose to call to give evidence or to

produce documents on such date as the Court may appoint but not later than 15 days after the date on which issues are settled. When such list is

filed they may obtain summons to such persons for their attendance in the court and where a party wants to call any witness other than those

whose names appear in the list, the Court may permit it to call such witnesses provided the party shows sufficient cause for the omission to mention

the name of such witness in the said list. The court is also required to record reasons for granting such permission.

What emerges is that a party who wants to call a witness outside the list must show a sufficient cause for the omission to mention his name in the

list already filed. Therefore, in the very nature of things the party has to disclose the identity of the witnesses who did not figure in the list and must

also show a sufficient cause for such noninclusion. The petitioner's application indeed falls short of requirement as would be evident from its

contents. All it states is that ""During the pendency of the case and from the plaintiff's evidence many new facts have arisen which can he rebutted

by adducing evidence of witnesses not mentioned in the list"". What are these new facts and what bearing these have on the issues in controversy, is

not indicated. The application similarly does not disclose the identity of the witnesses who are proposed to be called. It only saves that the

petitioner wants to produce some Govt. Officials and civil persons. The application is thus couched in the vaguest terms and conceal more than it

reveals. It is only here in this revision petition that the petitioner has disclosed that the respondents had constructed some new shops during the

pendency of the suit and that some functionaries of the Town Area Committee and revenue agency were required to be produced as witnesses in

support of this position to dislodge the ground of personal necessity taken by the respondent in the suit. Nothing prevented the petitioner from

showing so in his application before the trial court. His omission to do so, naturally has rendered his application deficient leaving no option to the

Court but to reject it.

It may be true that the trial court has not brought out the petitioner's failure to establish sufficient cause within the meaning of Order 16 rule SC

.P.C. in so many words but all the same the rejection of the application is based on its vagueness and the omission to disclose the identity of the

witnesses to be summoned. This by itself points out the fact that the petitioner has failed to satisfy the minimum requirements of the provision.

Therefore, the order impugned cannot be faulted on that account.

It may also be true that no sky would fail or no prejudice would be caused to the plaintiff if the petitionerdefendant was allowed to file a fresh list

of witnesses. But that by itself does not absolve him from showing sufficient cause for his omission to mention the names of new witnesses in the list

filed and no relief can be granted to him in a case where he fails to satisfy this requirement. There is no gainsaying the fact that the procedure is the

handmaid of justice only meant to advance its cause but it is also not meant to be given a go bye with impunity and also cannot be allowed to sub

serve and further the respective interests of the litigating parties. Mr. Thakur has relied upon AIR 1983 SC 925. I have gone through the judgment

which does not advance his cause any way. He made a last bid prayer that the petitioner be allowed to produce the witnesses particulars whereof

have been given in the body of this petition on his own after obtaining summons from the trial court. This was objected to by the other side on the

ground that the official witnesses could be summoned only after the particulars of the record were furnished to the court and subject to its

satisfaction.

Considering the circumstances of the case and also the interests of justice, I dispose of this revision petition with a direction that the petitioner be

allowed to produce his new witnesses whose particulars are given in the petition on his own in two sessions on the dates to be fixed by the trial

court. In case tine petitioner wants to obtain any summons from the court the may file an application in this regard within one week from today

which shall be disposed of by the trial court within two weeks thereafter after inviting objections from the respondent.

I noticed that the trial in the suit is proceeding to a small pace and petitionerdefendant is taking his own time to adduce evidence. The trial court

is accordingly directed to fix a schedule for the defendant's evidence and to ensure that the same is completed within four months from the date of

receipt of this order. If it is not so completed necessary steps should be taken to close the evidence.