Chattisgarh High Court
Sunita Agrawal vs Jindal Steel And Power Limited on 5 May, 2025
1
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REKHA signed by
SINGH REKHA
SINGH 2025:CGHC:20561
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WP227 No. 603 of 2023
1 - Sunita Agrawal W/o Rajesh Agrawal, Aged About 48 Years R/o
Beside Shyam Rice Mill, Village Sangi Tarai, Post Chhatamuda, Tahsil
And District Raigarh (Chhattisgarh) ... Petitioner(s)
versus
1 - Jindal Steel And Power Limited Raigarh Through Manager, Jindal
Steel And Power Limited, Patarapali, Tahsil And District Raigarh
(Chhattisgarh)
2 - State Of Chhattisgarh Through The Collector, District Raigarh
(Chhattisgarh) ---- Respondents
For Petitioner/Plaintiff : Mr. Hari Agrawal, Advocate
For Respondents No.1 : Mr. A.K. Samantray, Advocate
For respondent No.2 : Mr. Pramod Shrivastava, Dy. G.A.
Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
05.05.2025
1. The petitioner/plaintiff has challenged the order dated 15.03.2023
passed by the Court of First Additional Judge to the First Civil
Judge Class-II, Raigarh in Civil Suit No.192-A/2021, whereby an
application moved under Order 16 Rule 1(3) of CPC by the
petitioner has been rejected.
2. Mr. Agrawal, learned counsel appearing for the petitioner/plaintiff
would submit that the petitioner filed a suit for declaration to the
effect that the plaintiff has the right to conduct her business over
the suit property and also sought the relief of permanent
prohibitory injunction. It is pleaded that she is the owner of the
suit property situated over Survey No.1022 admeasuring 0.672
hectare at Village Loharsingh, Tehsil Pusour, District Raigarh. It is
also pleaded that the plaintiff had paid the diversion fee of
Rs.1,34,400/- and the annual rent of Rs.3,579/. Mr. Agrawal
would contend that the defendants filed their written statement
and denied the plaint averments. The learned Trial Court framed
issues on 28.10.2022. He would further contend that on
13.02.2023, the petitioner moved an application under Order 16
Rule 1(3) of CPC for the issuance of a summons for the
presence of six official witnesses, namely, A.K. Tondon, Patwari,
Parmeshwar Nayak, Vedram Denjare, Bharat, Chetram Denjare
and Lochan Das Mahant. Mr. Agrawal would also contend that
the application was moved to summon those government
employees to prove the veracity of the revenue documents. He
would argue that the learned Trial Court rejected the application
without assigning sufficient reasons. He would pray to allow the
said application. He would further argue that the learned Trial
Court rejected the application on the ground that the names of
those witnesses were not mentioned in the list of witnesses. In
support of his contentions, he placed reliance on the judgment
passed by the Hon'ble Supreme Court in the matter of Mange
Ram Vs. Brijmohan and others, reported in 1983 (4) SCC 36,
where it is held that sub-rule (3) of Rule 1 of Order XVI confers a
wider jurisdiction on the Court to cater to a situation where the
party has failed to name the witness in the list and yet the party is
unable to produce him or her on his own under Rule 1A.
Relevant para 10 is reproduced herein below:-
"10.............There is no inner contradiction between sub-
rule (1) of Rule 1 and Rule 1A of Order XVI. Sub-rule (3) of
Rule 1 of Order XVI confers a wider jurisdiction on the Court
to cater to a situation where the party has failed to name the
witness in the list and yet the party is unable to produce him
or her on his own under Rule 1A and in such a situation the
party of necessity has to seek the assistance of the Court
under sub-rule (3) to procure the presence of the witness
and the Court may if it is satisfied that the party has
sufficient cause for the omission to mention the name of
such witness in the list filed under sub-rule (1) of Rule 1, the
Court may still extend its assistance for procuring the
presence of such a witness by issuing a summons through
the Court or otherwise which ordinarily the court would not
extend for procuring the attendance of a witness whose
name is not shown in the list. Therefore, sub-rule (3) of Rule
1 and Rule 1A operate in two different areas and cater to
two different situations."
3. On the other hand, learned counsel appearing for respondent
No.1 would oppose the submissions made by Mr. Agrawal. He
would submit that the petitioner failed to assign a reason to
summon those witnesses. He would further submit that the
petitioner failed to name those witnesses in the list submitted
before the learned Trial Court, therefore, the application was
rightly rejected.
4. Learned Panel Lawyer appearing for the State/respondent No.2
would support the order passed by the learned Trial Court.
5. Heard the learned counsel appearing for the parties and perused
the documents placed on the record.
6. Order 16 Rules 1 and 2 of CPC reads as 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 person for
their attendance in Court.
(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 part 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 or to such officer as may be
appointed by the [Court in this behalf within
five days of presenting the list of witnesses
under sub-rule (1).]
1A. Production of witnesses without
summons-. subject to the provisions of sub-rule
(3) of rule 1, and party to the suit may, without
applying for summons under rule 1, bring any
witness to give evidence or to produce
documents.
2. Expenses of witnesses to be paid into
Court on applying for summons. -
(1)The party applying for a summons shall,
before the summons is granted and within a
period to be fixed, pay into Court such a sum
of money as appears to the Court to be
sufficient to defray the traveling and other
expenses of the person summoned in
passing to and from the Court in which he is
required to attend, and for one day's
attendance.
(2)Experts-In determining the amount
payable under this rule, the Court may, in the
case of any person summoned to give
evidence as an expert, allow reasonable
remuneration for the time occupied both in
giving evidence and in performing any work
of an expert character necessary for the
case.
(3)Scale of expenses.-Where the Court is
subordinate to High Court, regard shall be
had, in fixing the scale of such expenses to a
any rules made in that behalf.
(4)Expenses to be directly paid to witnesses.-
Where the summons is served directly by the
party on a witness, the expenses referred to
in sub-rule (1) shall be paid to the witness by
the party or his agent.
7. The Hon'ble Supreme Court in the matter of Vidhyadhar Versus
Manikrao reported in AIR 1999 SC 1441 has opined in relation
to these rules that "it is open to the parties to summon the
witness or without applying the summons, bring the witness to
lead evidence or to produce documents". It is further held that
"Sub-rule (1) of Rule 1 provides that although the name of a
witness may not find place in the list of witnesses filed by a party
in the Court, it may allow the party to produce a witness though
he may not have been summoned through the Court. The leave
of the court may be necessary but this by itself will not mean that
Rule 1A was in derogation of sub-rule (3) of Rule 1." Relevant
para of the aforementioned judgment is reproduced herein
below:-
30. These two Rules read together clearly
indicate that it is open to a party to summon
the witness to the Court or may, without
applying for summons, bring the witnesses
to give evidence or to produce documents.
Sub- rule (3) of Rule 1 provides that
although the name of a witness may not
find place in the list of witnesses filed by a
party in the Court, it may allow the party to
produce a witness though he may not have
been summoned through the Court. Rule
1A which was introduced by the Code of
Civil Procedure (Amendment) Act, 1976
with effect from 01.02.1977 has placed the
matter beyond doubt by providing in clear
and specified terms that any party to the
suit may bring any witness to give evidence
or to produce documents. Since this Rule is
subject to the provisions of sub-rule (3) of
Rule 1, all that can be contended is that
before proceeding to examine any witness
who might have been brought by a party for
that purpose, the leave of the Court may be
necessary but this by itself will not mean
that Rule 1A was in derogation of sub-rule
(3) of Rule 1. The whole position was
explained by this Court in Mange Ram Vs.
Brij Mohan, AIR 1983 SC 925: (1983) 4
SCC 36: (1983) 3 SCR 525, in which it was
held that sub-rule (3) of Rule 1 and Rule 1A
operate in two different areas and cater to
two different situations."
8. The Hon'ble Supreme Court in the matter of Sangram Singh
Versus Election Tribunal, Kotah reported in AIR 1955 SC 425
held that "it is "procedure", something designed to facilitate
justice and further its ends: not a penal enactment for
punishment and penalties; not a thing designed to trip people up.
Too technical a construction of sections that leaves no room for
reasonable elasticity of interpretation should therefore be
guarded against."
9. The Hon'ble Supreme Court in the matter of Sushil Kumar Sen
Versus State of Bihar reported in 1975 (1) SCC 774 has held
that "morality of justice at the hands of law troubles a judge's
conscience and points an angry interrogation at the law reformer.
The processual law so dominates in certain systems as to
overpower substantive rights and substantial justice. The
humanist rule that procedure should be the handmaid, not the
mistress, of legal justice compels consideration of vesting a
residuary power in judges to act ex debito justitiae where the
tragic sequel otherwise would be wholly inequitable."
10. The Hon'ble Supreme Court in the matter of State of Punjab
Versus Shamlal Murari reported in 1976 (1) SCC 719 held that
"processual law is not to be a tyrant but a servant, not an
obstruction but an aid to justice. Procedural prescriptions are the
handmaid and not the mistress, a lubricant, not a resistant in the
administration of justice."
11. In the present case, the learned Trial Court rejected the
application moved under Order 16 Rule 1(3) of CPC on the
ground that the petitioner failed to name the witnesses in the list
of witnesses, thus, the approach of the learned trial Court
appears to be erroneous.
12. Taking into consideration the above-discussed facts and the law
laid down by the Apex Court in the matters of Vidhyadhar
(supra), Sangram Singh (supra), Sushil Kumar Sen (supra)
and Shamlal Murari (supra), the order passed by the learned
trial Court dated 15.03.2023 whereby the application moved by
the plaintiff under Order 16 Rule 1(3) of CPC was rejected is
hereby set-aside and the petition stands allowed.
13. The application moved under Order 16 Rule 1(3) of CPC stands
allowed and the learned trial Court is directed to issue summons
to the proposed witnesses to record their evidence. The learned
Trial Court shall not grant unnecessary adjournments to either
party.
Sd/-
(Rakesh Mohan Pandey)
Judge
Rekha
