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Whether court can refuse permission to examine witness if witness list is not filed?

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)

W.P. No. 4928 of 2013

Decided On: 16.06.2014

Anil Ramesh Bhusari

Vs.
Bhaskar Ramesh Bhusari

Hon’ble Judges/Coram:Z.A. Haq, J.

Citation: 2015(1) ALLMR 724

1. Heard learned Advocates for the respective parties. Rule. Rule made returnable forthwith.

2. The petition takes exception to the orders passed by the learned trial Court rejecting the application filed by the petitioner (Exhibit 228) to issue witness summons to Shri Vithoba Rajaram Shelke and order rejecting the application (Exhibit 229) praying for recall of the order passed on Exhibit 228 and for permission to examine Sudam Umaji Jadhav as the witness.

3. It is undisputed that the petitioner/original plaintiff has not given the list of witnesses in the application (Exhibit 228). Prayer was made to issue witness summons to Shri Vithoba Shelke, however, no reason is given in the application pointing out the necessity of examining the said witness. In the application (Exhibit 229), the plaintiff prayed for recall of the order passed on application (Exhibit 228) and submitted that the plaintiff be permitted to examine Shri Sudam Umaji Jadhav. Again, the reason necessitating the examination of this witness is not given in the application. Sub-rules (1), (2), (3) and (4) of Rule 1 of Order XVI of the Code of Civil Procedure read as follows:

ORDER XVI

SUMMONING AND ATTENDANCE OF WITNESSES

1. 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 are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court.

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(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 sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.

(4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the [Court in this behalf within five days of presenting the list of witnesses under sub-rule (1).]

The provisions of Rule 1(1) of Order XVI casts an obligation on the party to submit the list of witnesses whom it proposes to call either to give evidence or to produce documents and to obtain summons in the name of such persons for their attendance in Court.

Rule 1(2) of Order XVI lays down that a party desirous of obtaining any summons for the attendance of any person shall file an application in Court stating therein the purpose for which the witness is proposed to be summoned.

Rule 1(3) of Order XVI lays down that 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 sub-rule (1), if such party show sufficient cause for the omission to mention the name of such witness in the said list.

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4. Considering the procedure laid down in Order XVI, Rule 1(1)(2) and (3) of Code of Civil Procedure, it is clear that the party desirous of examining any witness has to obtain summons for his attendance in the Court and this exercise has to be done in respect of the witnesses whose names are included in the list submitted by the party. As per Order XVI, Rule 1(3) of the Code of Civil Procedure, the Court may permit the party to call any other witness, provided the party who desires to examine any such witness whose name is not included in the list of witnesses, show sufficient cause for the omission to mention the name of such witness in the said list and the Court has to record reasons for permitting the party to examine the witness whose name is not included in the list submitted as per sub-rule (1) of Rule 1.

5. It is undisputed that in the present case, the petitioner/original plaintiff has no supplied the list of the witnesses. The applications (Exhibits 228 and 229) filed by the petitioner praying for permission to examine the witnesses and for issuance of witness summons do not show any reason to enable the Court to record its reasons for permitting the original plaintiff/petitioner to examine the witnesses or to issue the witness summons. The trial Court has properly considered the matter. Apart from this, the civil suit is of year 1994 and the trial Court has observed that the petitioner/plaintiff is unnecessarily protracting the matter. Be that as it may, the plaintiff has not been able to point out any irregularity in the impugned orders. The only submission made on behalf of the petitioner is that if the petitioner/original plaintiff is not permitted to examine the witnesses named by him in the applications, Exhibits 228 and 229, then it will cause prejudice to him. This submission cannot be accepted in view of the provisions of sub-rules (1), (2) and (3) of Rule 1 of Order XVI of Code of Civil Procedure. Sub-rule (4) of Rule 1 of Order XVI lays down that the summons referred to in this rule may be obtained by the parties on an application to the Court within five days of presenting the list of witnesses under sub-rule (1) as mentioned above. However, the sub-rule (4) of Rule 1 of Order XVI has been brought in statute book by way of amendment on 1-7-2002 and the civil suit is prior to that and may not be affected by this provision. But the petitioner/original plaintiff having failed to comply with the requirements of Rule 1(1)(2) and (3) of Order XVI of Code of Civil Procedure, in my view, the impugned order cannot be faulted with. Hence, the writ petition is dismissed.

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Parties to bear their own costs.

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