Shri Ram Sarup vs Shri Nand Lal

Mahajan, J.—This is a petition for revision and is directed against the order of Subordinate Judge 1st Class, Delhi, dated the 27th February, 1961, refusing to examine the witnesses sought to be produced by the Defendant in defence. The ground on which this refusal proceeds is that by an order dated the 17th October, 1960, his predecessor had refused to allow the Defendant to examine witnesses othar than those who had been served for that date and were present in Court. The Defendant after the order of the 17th October, 1960, made two attempts by application to get a proper order passed in the case, but with no avail.

After going through the record I find that the order of the 17th October, 1960, on which the order of the 27th February, 1961, is based is wholly without jurisdiction. The Court below should have realised that the rules of procedure are meant to further the ends of justice and not to throttle it. If the Court below had merely referred to Order 16, Rule 1 of the CPC with a proviso added to it by the Punjab High Court, the mistake would not have occurred. It is significant that on the 17th October, 1960. the Plaintiff''s evidence was still being examined and it is only after the Plaintiff''s evidence was closed that the examination of the Defendant''s evidence was to start. For that purpose, 27th February, 1961, was fixed as the date of hearing. On that date a list of witnesses was filed in the Court indicating the witnesses that were to be examined on that date. It may be mentioned that these witnesses had been summoned but in view of the order of the 17th October, 1960, these witnesses were not examined. It is against this order that the present petition for revision is directed.

Order 16, Rule 1, Code of Civil Procedure, along with the proviso added to it by the Punjab High Court reads thus:

O. 16, r. 1. At any time after the suit is instituted, the parties may obtain, on application to the Court or to such officer as it appoints in this behalf, summonses to persons whose attendance is required either to give evidence or to produce documents.

Provided that no party who has begun to call his witnesses shall be entitled to obtain process to enforce the attendance of any witness against whom process has not previously issued, of to produce any witness not named in a list, which must be filed in Court on or before the date on which the hearing of evidence on his behalf commences and before the actual commencement of the hearing of such evidence without an order of the Court made in writting and stating the reasons therefor.

It will be clear from the proviso that a party is entitled to examine witnesses even if they are not summoned if they are mentioned in the list filed before the hearing or before the examination of the witnesses starts. Reference in this connection may also be made to two reported decisions in AIR 1935 488 (Lahore) and AIR 1941 38 (Lahore) It is obvious that in this case, there has been a clear error by the Court below in the exercise of its jurisdiction. I would accordingly allow this petition, set aside the order of the 17th October, 1960 and the 27th February, 1961 and direct that the Defendant be allowed to examine the witnesses he had summoned or which he may bring for examination before the date of hearing.

As there is no representation for the Respondent there will be no order as to costs.

The trial Court will fix a date for the examination of the Defendant''s evidence after notice to the Defendant as well as the Plaintiff.