Bombay High Court
R/At Manik Colony vs Shri Ramesh Hari Madan on 11 November, 2013
Bench: R.M. Savant
wp-3282.05
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3282 OF 2005
1] Shri Sanjay Sham Bagade ]
age 38 years, Occu. Business ]
R/at Manik Colony, ]
Ahilyabai Chowk, Kalyan (W) ]
Dist. Thane ]
]
2] Shri Ram Bhilaji Bagade ]
age 67 years, Occu. Business ]
R/at Manik Colony, Ahilyabai ]... Petitioners
Chowk, Kalyan (W), Dist. Thane
ig ] (Orig. Defendants)
versus
1] Shri Ramesh Hari Madan ]
age 65 years, Occu. Retired ]
for himself and Power of Attorney
]
holder of Respondent Nos.2 to 4]
R/at Madan House, Tilak Chowk ]
Kalyan (W), Dist. Thane ]
]
2] Shri Ravindra Hari Madan ]
age Adult, Occu. -- ]
R/at Madan House, Tilwak Chowk ]
Kalyan (W), Dist. Thane. ]
]
3] Sou. Smruti Hemant Bhurke ]
age Adult, Occu. -- ]
R/at Madan House, Tilwak Chowk ]
Kalyan (W), Dist. Thane. ]
]
4] Sou.Rajashri Ramesh Ambavane ]
age Adult, Occu. -- ]
R/at Madan House, Tilwak Chowk ]... Respondents
Kalyan (W), Dist. Thane. ](Orig. Plaintiffs)
Mr. Kiran N Joshi for the Petitioners.
None for the Respondents.
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CORAM : R. M. SAVANT, J.
DATE : 11th November 2013
ORAL JUDGMENT
1 The above Writ Petition filed under Article 227 of the Constitution
of India takes exception to the order dated 15/03/2005 passed by the Joint
Civil Judge, Junior Division, Kalyan by which order the application Exhibit 28
filed by the Respondent/Orgi. Plaintiff for summoning the witnesses through
court was held not maintainable. However, the Plaintiff was allowed to
produce the said witnesses and examine them in view of the provisions of
Order XVI Rule 1-A of the Code of Civil Procedure.
2 A short question therefore which arises for consideration is
whether the court could have allowed the Plaintiff to produce and examine the
witnesses having regard to Order XVI Rule 1-A of the Code of Civil Procedure.
3 In the suit in question being Regular Civil Suit No.289 of 1999 the
Plaintiff had examined himself. It is an undisputed position that the Plaintiff
had not filed the list of witnesses who he desired to examine and in respect of
whom he desired that the summons be issued. It is after the examination of
the Plaintiff was over that the Plaintiff had filed an application on 17/08/2004
for the witness summons being issued to two persons i.e. one Ambavane
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Kishor and one Shri Sunil Joshi, the Executive Engineer, Kalyan Dombivali
Municipal Corporation. Except asking for summons be issued to the said two
persons, nothing else was stated by the Plaintiff. The said application filed by
the Plaintiff was opposed on behalf of the Defendants i.e. the Petitioners
herein. The opposition was principally on the ground that since the persons in
respect of whom the Plaintiff wanted summons be issued were not cited as
witnesses in any list filed by the Plaintiff, the Plaintiff ought to give the reasons
as to why he wanted to examine them and as to why their names were not
appearing in the list of witnesses when the Plaintiff desired to examine them.
The Defendants therefore prayed that the said application was not
maintainable having regard to Order XVI Rule 1 of the Code of Civil Procedure.
4 The Trial Court considered the said application and having regard
to the provisions of Order XVI Rule 1(1) of the Code of Civil Procedure held
that the said application was not maintainable, but surprisingly thereafter held
that the Plaintiff could examine the said witnesses without assistance of the
Court, having regard to Rule 1-A of Order XVI of the Code of Civil Procedure.
As indicated above, it is the said order which is impugned in the present Writ
Petition.
5 Heard Shri Joshi the learned counsel appearing for the Petitioners.
None appears for the Respondents, though served.
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6 In the context of the controversy which is involved in the present
Petition it would be apposite to refer to Order XVI Rule 1 (1), Rule 1(3) and
Rule 1-A, the same are reproduced herein under :-
"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.
(2) -----------------------
(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) ------------------------
1-A Production of witnesses without summons ---
Subject to the provisions of sub-rule (3) of rule 1, any party
to the suit may, without applying for summons under rule 1,
bring any witness to give evidence or to produce
documents."
Hence, in terms of Rule 1 (1) of Order XVI of the CPC the parties are obliged to
submit 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
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attendance in Court and that the same has to be done within the time
stipulated in Rule 1 of Order XVI of the CPC. In so far as Rule 1-A of Order XVI
of the CPC is concerned, it postulates that subject to the provisions of sub-rule
(3) of Rule1, any party to the suit may, without applying for summons under
Rule1, bring any witness to give evidence or to produce documents. Hence
Rule 1-A of Order XVI is subject to the provisions of sub-rule (3) of Rule 1 of
Order XVI. The said sub-rule (3) contemplates 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 Rule 1 (1), if such party shows sufficient cause for the omission
to mention the name of such witness in the said list.
In the instant case, as indicated above, the application dated
17/08/2004 is bereft of any reason as to why the names of the said two
witnesses whom the Plaintiff wanted to examine were not made part of the list
of witnesses and filed in the Court. The said application is also bereft of any
reasons as to why the Plaintiff wanted to examine them after his examination
was over. Since the pre-requisite for permitting examination of the witnesses is
on the basis of the Plaintiff showing sufficient cause. In the absence of Plaintiff
showing sufficient cause in the instant case, as the application is bereft of any
reason, the Plaintiff could not be allowed to examine the witnesses even under
Rule 1-A of Order XVI of the CPC. The Trial Court as can be seen has totally
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glossed over the fact that Rule 1-A of Order XVI is controlled by sub-rule 3. It
is only if the Plaintiff satisfies the court by showing sufficient cause then
powers can be exercised under Rule 1-A. In the instant case, as indicated
above, the application in question is bereft of any reason and therefore the
Plaintiff cannot be said to have shown sufficient cause and therefore the Trial
Court had erred in allowing the Plaintiff to examine the witnesses by having
recourse to Rule 1-A of Order XVI of the CPC. In that view of the matter the
impugned order is required to be quashed and set aside and is accordingly
quashed and set aside. Rule is accordingly made absolute in the aforesaid
terms with no order as to costs.
[R.M.SAVANT, J]
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