Sachin Taneja & Ors vs Yatinderjit Singh
2016 Latest Caselaw 5741 Del

$~13
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                            Date of decision: 01.09.2016
+      CM(M) 350/2016 & C.M. No.25554/2016
       SACHIN TANEJA & ORS                        ..... Petitioners
                Through: Mr. Prosenjeet Banerjee, Advocate.

                          versus

       YATINDERJIT SINGH                        ..... Respondent
               Through: Mr. S.K. Rungta, Senior Advocate with
                         Mr. Prashant Singh & Mr. Shivankur
                         Shukla, Advocates.
       CORAM:
       HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. By the present petition, the petitioner seeks to impugn the order dated 15.3.2016 by which an application filed by the petitioner/defendant under Order XVI Rule 1 read with Section 148 and 151 CPC and Section 5 of the Limitation Act for condonation of delay/extending the time for filing the list of witnesses and praying that the list of witnesses submitted on 19.10.2015 be taken on record.

2. The present suit has been filed for perpetual injunction and declaration under the Specific Relief Act by the respondent/plaintiff seeking a decree of perpetual injunction to restrain the petitioner/defendant from entering into the suit property as shown in red in the site plan i.e. 1/4th undivided share of the plaintiff in property No.3, Hanuman Road, Connaught Place, New Delhi or from taking possession of the suit property,

CM(M) 350.2016 Page 1 etc. A decree of declaration is also sought for declaring that the plaintiff is the rightful owner and in possession of the suit property. Other connected reliefs are also sought.

3. On 3.11.2011, when the matter was pending before this court, this court framed issues and directed that affidavit by way of evidence be filed by both the parties within four weeks along with list of witnesses. With the consent of the parties, Sh. K.S. Khurana, former Additional District and Sessions Judge, Delhi was appointed as local commissioner to record the evidence of the parties. On 8.2.2012, on an application moved by the respondent under Order 14 Rule 5 CPC, issue No.4 was recast. On the same date, an order was passed directing the parties to file their respective evidence by way of affidavit. The order was that the plaintiff shall, at the first instance, file his entire evidence before the next date. The petitioner/defendant was to file evidence by way of affidavit within two weeks from the next date fixed before the local commissioner.

4. Thereafter, some evidence has been recorded by the respondents. On 13.4.2012, the respondent moved an application under Order VI Rule 17 CPC for amendment of the plaint. This was allowed on 14.9.2012 rejecting the contention of the petitioner that the application has been filed after the evidence had commenced. Thereafter, the original plaintiff passed away on 30.3.2014 and his legal heirs were brought on record. The matter was then listed before this court on 26.5.2015. On that date, this court had directed the parties to appear before the local commissioner and complete their respective evidence including the cross-examination in four hearings each and each session shall be for about two hours. Pursuant to the above order, on 14.10.2015, the evidence of the plaintiff/respondent was completed. On

CM(M) 350.2016 Page 2 19.10.2015, the petitioner has filed his list of witnesses. Subsequently, the present application has been filed.

5. The trial court vide impugned order has dismissed the application to take on record the said list of witnesses. The trial court noted that for extraordinary delay of 1317 days, no sufficient cause has been shown by the petitioner to file the list of witnesses at this stage. The application was accordingly dismissed.

6. I have heard the learned counsel for the parties. The learned counsel for the petitioner, at the outset, states that though his list of witnesses contains 10 witnesses; however, he confines his relief only to three witnesses, namely, witnesses shown at serial No.4, 5 and 10. The above witnesses listed at serial No.4, 5 and 10 are in addition to two witnesses whose evidence has already been filed, who are at serial No.1 and 2 of the said list of witnesses. He also submits that he will complete his evidence within the time frame as fixed by this court on 26.05.2015. He further submits that there was inadvertent delay in filing of the application. In any case he submits that the respondent has also caused delay on account of amendment application filed seeking amendment of the plaint.

7. The learned senior counsel appearing for the respondent has vehemently opposed the present application pointing out that great prejudice would be caused to the respondent in case the present application is allowed. He submits that the respondent has by now disclosed his entire case and the petitioner has by mischief sought to now bring on record the list of witnesses after the respondent has disclosed his entire evidence. He further submits that this court has no power to extend the time for filing the list of witnesses beyond 30 days as per Section 148 CPC.

CM(M) 350.2016 Page 3

8. As far as the contention of the respondent that the time cannot be extended beyond the period of 30 days under Section 148 CPC is concerned, the said contention is without merit.

9. The Supreme Court in Nashik Municipal Corporation v. R.M.Bhandari & Ors., AIR, 2016 SC 1090/(MANU/SC/0232/2016), held as follows:

"15.......... 41. The amendment made in Section 148 affects the power of the court to enlarge time that may have been fixed or granted by the court for the doing of any act prescribed or allowed by the Code. The amendment provides that the period shall not exceed 30 days in total. Before amendment, there was no such restriction of time. Whether the court has no inherent power to extend the time beyond 30 days is the question. We have no doubt that the upper limit fixed in Section 148 cannot take away the inherent power of the court to pass orders as may be necessary for the ends of justice or to prevent abuse of process of the court. The rigid operation of the section would lead to absurdity. Section 151 has, therefore, to be allowed to operate fully. Extension beyond maximum of 30 days, thus, can be permitted if the act could not be performed within 30 days for reasons beyond the control of the party. We are not dealing with a case where time for doing an act has been prescribed under the provisions of the Limitation Act which cannot be extended either Under Section 148 or Section 151. We are dealing with a case where the time is fixed or granted by the court for performance of an act prescribed or allowed by the court."

Hence, the contention of the respondent on this count is clearly without merits. However, in view of Order 16 Rule 1 and Order 16 Rule 1(3) CPC, resort to Section 148 CPC may not be necessary.

10. Order 16 Rule 1 CPC and Order 16 Rule 1 (3) read as follows:-

CM(M) 350.2016 Page 4 "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."

11. A reference may be had to the judgment of the Andhra Pradesh High Court in the case of Kailasa Bhoomiah v. Kailasa Eashwaralingam, 1988 (1) APLJ (HC) 268/(MANU/AP/0290/1987). The court held as follows:

"3.Though Sub-rule (1) of Rule 1 gives an impression that filing of the list-witnesses within 15 days from the date of settlement of issues is mandatory, but when it is read with Sub- rule (3) the impression gets faded because it permits calling of a person as a witness to the court though his name is not included in the list of witnesses, of course for sufficient reasons to be recorded. Thus, there is sufficient power vested in the court to condone the non-mention of a name in the list of witnesses, Equally Rule 1A permits any party to the suit to bring any witness to give evidence without applying for summons. A comprehensive reading of Rule 1 and 1A leads to an interpretation that filing of list of witnesses within 15 days is not mandatory and the party can file the same even beyond that but reasons to be explained for the delay. This interpretation is also one leaning towards the ultimate object of the ends of justice being met with."

CM(M) 350.2016 Page 5 Hence, also the Madhya Pradesh High Court in the case of Sethurajan v. Rajalakshmi, 2012-5-LW167/(MANU/TN/1331/2012), held as follows:

"12. From the ingredients of Order 16 Rule 3, it is latently and patently quite clear that for reasons to be recorded in I.A. No. 436 of 2009, a Court below may allow a party to summon of any witness through Court or otherwise, if concerned party shows sufficient cause for the omission to mention the name of such witness in the said list. As a matter of fact, Order 16 Rule 1which speaks of summoning of witness and the list of witnesses to be presented by a party, speaks of filing of the application not later than fifteen days after the date on which the issues are settled and the parties to present a list of witness before a Court of Law. In regard to the persons, though either summoned to give evidence or to produce document etc., the said provision, in the considered opinion of this Court is only directory in nature and it is not mandatory in character."

Hence in view of the above provisions, the court has power, for reasons to be recorded, permit a party to call, whether by summoning through court or otherwise, any witness, other than those whose name is in the list of witness, if sufficient cause is shown for their omission.

12. In the present case, the cause shown is inadvertence. The petitioner did not act with due diligence but that would not be a ground to completely non-suit the petitioner from summoning his witnesses. The prejudice caused to the respondent can be compensated by way of cost.

13. It may be noted that a perusal of the proceedings show that even the respondent himself has on several dates prolonged recording of evidence. Firstly, an application was filed by the respondent under Order 14 Rule 5 CPC which was allowed on 8.2.2012 whereby issue No.4 was recast. Subsequently on 13.4.2012, the respondent filed an application for

CM(M) 350.2016 Page 6 amendment of the plaint after evidence had commenced. Despite the fact that the evidence has commenced, this court had allowed the application for amendment on 14.9.2012. The petitioner alone cannot be blamed for the delay in disposal of the suit.

14. There is no merit in the contention of the respondent that great prejudice is caused as the evidence of the respondent has already been placed on record and thereafter, the petitioner has sought to place on record the list of witnesses. No particular sequence is stated in CPC for parties to file their list of witnesses.

15. Accordingly, the impugned order is set aside. Subject to the submissions made above by the learned counsel for the petitioner, namely, that he confines himself only to the witnesses shown at serial Nos.1, 2, 4, 5 and 10 as mentioned in the list of witnesses and that he will complete his evidence within the time frame fixed by this court in its order dated 26.5.2015, this application is allowed and the list of witnesses is taken on record, subject to payment of cost of Rs.25,000/-.

16. With the above directions, the petition stands disposed of.

JAYANT NATH, J.

SEPTEMBER 01, 2016
'AA'




CM(M) 350.2016                                                          Page 7