Mehta Yog Raj vs All J&K Labanan Sikh Centre Gurdwara

A suit was presented before the Court of Munsiff R.S Pura on 17101990. Issue were framed on 28101994 and the parties were directed to file

the list of witnesses. The case was adjourned for arguments on the preliminary issue. On 30031995 however with the agreement of the learned

counsel for the parties, the Court below directed that the preliminary issue shall be decided togather with the factual issues. The parties were

directed to file their list of witness within 15 days and the case was adjourned. The plaintiff had to produce the evidence first who failed on a

number of occasions and on 22111995 the defendant in the suit filed an application seeking permission of the court to file a list of witnesses.

According to the learned Munsiff, no reasons were given for filing the list beyond time. He eventually dismissed the application and seek the

plaintiff to produce his evidence. This order of the learned Munsiff which has been passed on 14121996has been challenged.

No legal grounds have been taken in the revision on the basis of which this court could intervene in the matter. However, it is necessary to decide

the matter on merits so that there is no confusion.

Rule 1 Order 16 lays down that on or before such date the court may appoint, and not latter than fifteen days after the date on which the issue was

framed, the parties shall present in the Court a list of witnesses whom they propose to call either to give evidence or to produce documents and

obtain summons to such person for their attendance in the Court. The learned Munsiff in his order has held that no reasons were given for filling of

the application after the fifteen days of framing the issues. Therefore, the application could not be allowed. For the proper appreciation of the law

on the point, it is necessary to reproduce some of the provisions. Rule 1 Order 16 lays down :

List of witnesses and summons to witnesses:

On or before such date as Court may appoint, and not latter than fifteen days after the date on which the issue are settled, the parties shall present

in the Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summons to such person for

their attendance in Court.

A party desirious 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.

Reading Rule 1 and Rule 2 together, it becomes clear that the list of such witness is to be given to the Court within the period fixed by the Court,

or within fifteen days from the date on which the issues were setelled, whom the party wants to be summoned by the Court. Rule 1 is titled as ""List

of witnesses and Summons to witnesses"" by a bare persual of Rule 1, it becomes clear that list of such witnesses is mandatory to be given whose

attendance a party wants in Court through summons by the Court. Rule 2 makes it emphatically clear that a party who wants such summons to be

issued must make an application. Therefore, in so far as the witnesses for whom summons are needed a list is to be given within the time stipulated

under Rule 1 and no discretion is left with the Courts to extend the period.

This matter come up before the Supreme Court in Mange Ram V/s Brij Mohan and others(AIR 1983, SC 92'5). The Court while analysing the

legal position framed a question that ""Where a party to a proceeding does not wish tohave the assistance of the Court for the purpose of procuring

the attendance of a witness or witnesses, could he be denied the privilege of examining witnesses kept presentby him on the date fixed for

recording his evidence on the sole ground that the names of the witnesses and the gist of evidence have not been set out in the list which may or

ought to have been filed in compliance with Order XVI Rule 1 of the Civil P.C.?

After analysing the position of law the Supreme Court came to the conclusion that there are two sets of witnesses; one whose attendance a party

wants to procure through the process of the Court. For such witnesses a list has to be given mandatorily. But if a party wants to bring in the

witness on his own, he need not give the list of the witnesses. The Court was of the opinion that the Court while issuing a summons to a witness is

to come to the conclusion that the evidence of such a person needed. Because if the summons of the Court is refused by a witness such witness

will have to bear the consequences. In the ensuring legal consequences warrants can be issued against him, his prorerty can be confiscated and he

may be even send to Jail. The Court found that Order 16 Rule 1A was operating in a altogether different field there must be a right to the party to

bring in a witness for whome no list has been filed in terms of Rule 1.

The Court while analysing Rule 1A was of the view :

Rule 1A of Order XVI clearly bring to the surface the two situations in which the two rules operate. Where the party wants the assistance of the

Court to produce presence of a witness on being summoned through the Court, it is obligatory on the party to file the list with the gist of evidence

of the witness in the Court as directed by subrule(1) of the rule 1 and make an application as provided by subrule (2) of Rule

But where the parties would be in a position to produce its witness without the assistance of the Court, it can do so under Rule 1A of Order

XVI irrespectiv e of the fact whether the name of such witness is mentioned in the list or not.

This clear pronouncement of law by the Supreme Court makes it abundantly clear that it is only in cases in which a party needs summons, that the

list must be filed with in the period mentioned in subrule(1) and if such list is not filed within the stipulated period of time, Courts have no power to

entertain such application beyond time.

For these reasons this revision petition deserves to be dismissed and is accordingly dismissed. The party has lost its right to get the witness

summoned through Court because it has failed to file the application in terms of Rule 1 and Rule 2 of Order XVI within the stipulated period of

time. However, it is made clear that when the turn of the present petitioner comes for producing the evidence, he shall be at liberty to bring in

witness on his own.