Shanker Lal @APPELLANT@Hash Shri Shambhu

This writ petition under Articles 226 and 227 of the Constitution of India has been preferred claiming the following reliefs:

“[A] By an appropriate writ, order or direction, the order impugned dated 22.02.2018 (Annex.3) may kindly be quashed and set aside.

[B] By an appropriate writ, order or direction, theapplication of the non-petitioner dated 20.02.2018 may kindly be dismissed.

[C] Any other appropriate order or relief, which thisHon’ble Court may deem just and proper in the facts and circumstances of the case, may

kindly also be passed in favour of the humble petitioner.â€​

The petitioner/plaintiff instituted a suit for partition and permanent injunction against the respondent/defendant with the averment that his ancestor

Duli Chand died about nine years back, and after his death, there was a Joint Hindu Family, which was having certain properties situated at Village

Satpura, Tehsil and District Chittorgarh.

The bone of contention in the present petition is allowing of an application of the respondent/defendant by the learned court below vide the

impugned order dated 22.02.2018, whereby the learned court below has permitted the evidence of Kanhaiya Lal, Mithu Lal and Mohan Lal to be

recorded.

Learned counsel for the petitioner states that the evidence of the respondent was already closed, and therefore, summoning the witnesses, while

allowing the aforesaid application, was contrary to law.

Learned counsel for the petitioner further states that as per Order 16 Rule 1(2) CPC, if a party is desirous to obtain any summon for attendance of

any person, he/she shall file an application in the court stating therein the purpose for which the witness is proposed to be summoned.

Learned counsel for the petitioner also states that the purpose mentioned by the respondent/defendant in the aforementioned application is not such,

so as to warrant summoning of the witnesses by the learned court below.

Learned counsel for the petitioner, in support of his submissions, has relied upon the judgment rendered by this Hon’ble Court in Shimbhuram

Vs. Lakharam, reported in AIR 1980 Rajasthan 184, relevant paras 6 and 7 of which read as under:-

“6. In the case in hand, no list of witnesses was filed under Order 16, Rule 1, C. P. C. No reasons were shown for not filing the list. Learned

Munsif was not bound to examine Ghamandaram without showing any sufficient cause for the omission. The fact that witness was brought by the

defendant with him for giving evidence, by itself, would not entitle the defendant to examine him either under Order 16, Rule 1-A or under Order 16,

Rule 1-A (Rajasthan) because the provisions of Order 16, Rule 1-A and Order 16, Rule 1-A (Rajasthan) are subject to the provisions of Subrule (3) of

Rule 1 of Order 16 and Sub-rule (ii) of Rule 1 (Rajasthan) of Order 16 respectively. If 'not filing a list is in mathematical terms the same thing as filing

a list containing no name of any witness' vide Baxiram's case then sufficient cause was required to be shown in regard to the omission of name of

Ghamandaram, Thus, no ground for interference is made out.

Learned counsel for the petitioner next contended that on account of the misconception about the provisions of Order 16, Rule 1-A, C. P. C., the

defendant did not file any application showing sufficient cause either for not filing the list or for omission of the name of Ghamandaram and, therefore,

learned Munsif may be directed to permit the defendant to examine the witnesses brought by him on filing the application in this regard. Such a

request was not made to the learned Munsif at the time of the arguments before the order under revision was passed. Learned counsel for the

petitioner could not show any ground in the memo of revision relating to this submission, It will, however, be for the learned Munsif to consider, as and

when such a request for the examination of the witness brought by the defendant is made in writing and thereafter to pass appropriate orders in this

regard in accordance with law.â€​

Learned counsel for the respondent however, submits that the proceedings before the learned court below were at the initial stage itself, and Order

16 of CPC gives ample powers to the learned court below to allow the evidence of the witness to be recorded, wherever it is necessary for a proper

adjudication.

After hearing learned counsel for the parties as well as perusing the record of the case, alongwith the precedent law cited at the Bar, this Court

finds that the impugned order dated 22.02.2018 passed by the learned court below is absolutely justified, as the learned court below has dealt with the

issue of requirement of recording of the evidence of all the aforementioned three witnesses, and such powers under Order 16 of CPC have rightly

been exercised by the learned court below.

Moreover, the dates reflect that the proceedings before the learned court below were at the initial stage, and no such prolonged delay has been

attributed or caused by the respondent. Furthermore, the learned court below has also recorded its satisfaction that the evidence of all the

aforementioned three witnesses was important for the proper adjudication.

The precedent law cited by learned counsel for the petitioner is not applicable in the present case.

In light of the aforesaid observations, no interference is called for in the present writ petition and the same is accordingly dismissed. However, the

right of the petitioner to rebut the evidence of all the aforementioned three witnesses before the learned court below shall stand protected.