Order XVI Rule 1 CPC | Opportunity To Examine Vital Witness Can't Be Denied Only Due To Failure To Show Reason For Omitting Name In Witness List: Bombay HC

The Bombay High Court held that failure to show reason for not including witness names in the witness list under Order XVI Rule 1(1) of CPC alone cannot be a reason to disallow the plaintiff from examining witnesses who are vital for determining the dispute.

Justice Sandeep V. Marne, while upholding trial court’s order allowing the plaintiff to examine two witnesses held –

“even if Respondents/Plaintiffs have failed to show/plead any cause for omission of the names of said two witnesses in the list of witnesses which ought to have been filed under the provisions of sub-rule 1 of Rule 1 of Order XVI of the CPC, that alone cannot be a reason for rejecting Respondents/Plaintiffs request for examination of said two witnesses. This is particularly true when this Court has already arrived at a finding that the examination of the said two witnesses appears to be necessary for the purpose of determining the real question of controversy between the parties”

The respondents/plaintiffs filed a suit for recovery of Rs. 21,55,575/- with interest. They claimed an agreement of sale was executed between the parties to sell the defendant’s flat to them for Rs 29 lakhs. They purchased time duty of Rs. 1,56,000/- for this. However, when the final document was about to be executed, the plaintiffs noticed that the consideration was stated as Rs. 21 lakhs. The agreement for sale was terminated and the defendant agreed to refund the amount paid by the plaintiffs. The defendant in his return statement claimed that the transaction is actually of a loan.

The plaintiff sought to prove an NOC issued by the developers who constructed the building. He claimed that the document bears signatures of the developers as confirming parties and hence it can prove the unexecuted sale agreement.

The plaintiffs’ application for witness summons did not state why the names of the two witnesses were not included in the witness list to be filed under Order 16 Rule 2(1). The trial court allowed it holding that no man should suffer a wrong by technical procedure of irregularities.

Advocate C.K. Tripathi for the defendant/petitioner submitted that showing of sufficient cause is a mandatory requirement under Order 16 Rule 1(3) CPC and the court does not have discretion to allow such applications. Since no sufficient cause for not filing list of witnesses was shown, the trial court wrongly allowed the application.

Advocate Karnik for the plaintiffs/respondents submitted that examination of the two witnesses is necessary to prove the nature of the transaction. Under Order 16 Rule 1(2), witnesses whose names are not stated in the witness list can be summoned and there is no requirement of showing sufficient cause. The words “show sufficient cause for the omission” is procedural in nature and once the plaintiffs satisfy the court that examination of a particular witness is necessary for determining the controversy, the provision is directory and not mandatory.

The court said that the examination of the two witnesses is vital for the purpose of proving the plaintiff’s case as they are the developers of the building and are the conforming parties to the sale agreement that was supposed to be executed.

The court said that if the plaintiffs are denied an opportunity to examine the witnesses, it will be a miscarriage of justice and the opportunity cannot be denied by showing technical rules of procedure.

“If the Respondents/Plaintiffs in present case is 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 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”.

Case no. – Writ Petition No. 11185 of 2022

Case Title – Dinesh Singh Bhim Singh v. Vinod Shobhraj Gajaria

Citation: 2023 LiveLaw (Bom) 62

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