Lalitha
J. Rai Vs. Aithappa Rai [1995] INSC 242 (27 April 1995)
Ramaswamy,
K. Ramaswamy, K. Hansaria B.L. (J)
CITATION:
1995 AIR 1984 1995 SCC (4) 244 1995 SCALE (3)698
ACT:
HEAD NOTE:
O R D
E R
Leave
granted.
The
appellant plaintiff laid the suit for declaration of title and for possession
of the plaint schedule property.
On August 3, 1993, the appellant filed an application
enclosing the list of witnesses to issue summons to them for adduction of
evidences to prove her case. In the affidavit filed by the husband, who is the
general power of attorney holder, it was stated that he was under bonafide
mistaken impression that the list of witnesses was already filed, but he
noticed that mistake when he was getting ready, in consultation with the
counsel, to adduce evidence at the trial. It was, therefore, stated that the
failure to file the list of witnesses was not international. Accordingly, he
sought permission of the court to file the list of witnesses. The trial court
in its order dated September
6, 1993 dismissed the
application holding that there is no proper explanation for the delay in filing
the list of witnesses. On revision, the High Court of Karnataka declined to
interfere with the order. Thus, this appeal by special leave.
Order
16 Rules 1 and 1(A) adumberate that the witness at the trial court are to be
produced for examination by the parties by their filing the list, and omission
thereon prohibits them to avail the assistance of the court to secure their
attendance to give evidence or to produce documents on their behalf. It is true
that the legislature amended Order 16 Rule 1 and added rule 1(A) to see that
the undue delay should not be caused in the trial of the suit by filing list of
witnesses or the documents at belated stage.
Thereby,
it envisages that on or before the date fixed by the court for settlement of
issues and not later than 15 days after the date on which issues were settled,
the parties are to file the list of such witnesses whom they propose to call
either to give evidence or to produce documents and they are required to obtain
summons to such witnesses for their attendance in the court. On their failure
to do the same, Rule 1(A) says that they may without assistance of the court
bring witnesses to give evidence or to produce documents. In other words, if
they fail to obtain the summonses through court for attendance of witnesses
they are at liberty to have the witnesses brought without the assistance of the
Court.
It
would, thus, be seen that the legislature did not put a total prohibition on
the party to produce the witnesses or the production of the documents for proof
of the respective case. Nonetheless, when they seek the assistance of the
Court, they are enjoined to give reasons as to why they have not filed the application
within the time prescribed under Rule 1 of Order 16. It is seen that in the
application it was stated by the husband of the appellant that they were under
the bonafide impression that they have already filed the list of the witnesses
along with the documents and that the mistake of non-filing the list was
discovered when they were getting ready for the trial.
It is
not in dispute that the trial is yet to begin. In these circumstances, we think
that the trial court committed illegality in refusing to receive the list for
summoning the witnesses for adduction of evidence by the plaintiff. The appeal
is accordingly allowed. The orders of the trial court and the High Court are
set aside. The list already furnished is a valid list. The trial court is directed
to summon the witnesses for examination on behalf of the plaintiff. No costs.
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