The Bombay High Court dismissed a petition seeking the quashing of an order of the Trial Court dated 26.8.2022. A single judge bench of this Court comprising Hon’ble Justice Sandeep V. Marne observed that the Respondents cannot be denied an opportunity of examining two additional witnesses for a technical lapse.
Brief Facts:
The petition was filed to challenge an order dated 26.8.2022. The objection of the Petitioner/Defendant to the order dated 26 August 2022 was that the Respondents/Plaintiffs in the first instance had failed to file the list of witnesses as mandated under Order XVI Rule 1 of Code of Civil Procedure (hereinafter referred to as ‘CPC’). Having failed to file the list of witnesses under that provision, it was incumbent on the Respondents/ Plaintiffs to show sufficient cause for seeking issuance of witnesses summons to additional witnesses under the provisions of Sub-rule 3 of Rule 1 of Order XVI of CPC. It was contended that since no sufficient cause was pleaded or shown, the trial court erred in allowing the Application and issuing summons to witnesses whose names were not included in the list of witnesses to be filed under the provisions of sub-rule 1 of Rule 1 of Order XVI of CPC.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner argued that showing sufficient cause is a mandatory requirement under the provision of sub-rule 3 of Rule 1 of Order XVI of CPC and in absence of any sufficient cause being pleaded in the Application, the Court does not enjoy a discretion to allow the Application by issuing summons to the additional witnesses.
Contentions of the Respondent:
The Learned Counsel of the Respondent argued that examination of the two witnesses is necessary for proving the proposed document that was expected to be executed between the parties. The two witnesses sought to be examined by the Respondents/Plaintiffs have issued such NOC.
She further argued that additional witnesses (whose names are not stated in the list of witnesses) can also be summoned by the Court and there is no requirement of showing sufficient cause. She also submitted that the use of the words “show sufficient cause for the omission” is procedural in nature and once the Respondents/Plaintiffs satisfied the Court that examination of a particular witness is necessary for the purpose of determining the real question of controversy between the parties, the provision is required to be held to be directory and not mandatory.
Observations of the Court
The Court observed that if the Respondents/Plaintiffs are denied an opportunity of examining the two additional witnesses for technical lapse of non-inclusion of their names in the list of witnesses or for non-showing of sufficient cause in the application, the same would result in a miscarriage of justice. In the event of Respondents/Plaintiffs being successful in proving that the transaction in question is that of a sale by examining the said two additional witnesses, the same would have a material bearing on the result of litigation.
In such circumstances, Court would not deny them the opportunity by showing technical rules of procedure, drafted for advancing the cause of justice.
The decision of the Court:
The Bombay High Court, dismissing the petition, ordered that the trial Court did not commit any error in passing the impugned order.
Case Title: Dinesh Singh Bhim Singh vs Vinod Shobhraj Gajaria & Anr.
Coram: Hon’ble Justice Sandeep V. Marne
Case no.: WRIT PETITION NO. 11185 OF 2022
Advocate for the Petitioner: Mr. C.K. Tripathi
Advocate for the Respondent: Ms. Neeta P. Karnik
Read Judgment @LatestLaws.com
Picture Source :