Order XVI Rule 1 CPC Confers Wider Jurisdiction To Cater A Situation Where Party Failed To Name A Witness: J&K&L High Court

The Jammu and Kashmir and Ladakh High Court ruled that Sub-rule (3) of Rule 1 of Order XVI CPC confers a wider jurisdiction on the Court to cater to a situation where the party has failed to name the witness in the list or the party is unable to produce him or her on his own under Rule 1A and in such a situation, the party out of necessity may seek the assistance of the Court under sub-rule (3) to procure the presence of the witness.

The observations were made by Justice Sindhu Sharma while hearing a petition through the medium of which the petitioner had invoked the jurisdiction of the Court under Article 227 of the Constitution of India, assailing the order dated 06.04.2022, passed by the 3rd Additional Munsiff, Jammu.

The petitioner challenged the order on the ground that the same is perverse and illegal as the same was passed without taking into consideration any cause much less a good cause shown by the respondent who had filed three different applications for examination and summoning the witnesses. Counsel for the petitioner further submitted that the grounds carved out in the application are only an afterthought to defeat and delay the trial and the trial Court had erroneously accepted the affidavits of two persons who were cited in as witnesses even though the application for permitting them to examine witnesses was yet to be decided and this in turn resulted in delay in the proceedings.

Contesting the plea the respondent submitted that during the pendency of the suit, the original defendant expired and his daughters being the legal representatives were brought on record. The legal representatives of the defendant, it is stated, despite availing all efforts were unable to contact many witnesses, as some had died and some had left the place of residence and moved elsewhere, they have thus even deleted ten witnesses as mentioned in the list, the counsel argued.

Counsel for the respondents further submitted that the respondents, had moved an application for allowing them to examine witnesses as given in the list in place of list of witnesses already submitted by the defendant and hence the trial court, after hearing both the parties allowed the application of the respondents under Order 16 Rule 1 (3) and Order 16 Rule 1(A).

Adjudicating upon the matter Justice Sindhu Sharma observed that CPC is amply clear on the subject that 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. This disclosure enables the Court to decide as to whether the examination of such witness to decide is necessary to decide the dispute or not.

Deliberating on the law with regard to production of witnesses with the assistance of the Court the bench placed reliance on Supreme Court judgement in "Mange Ram vs. Brij Mohan and others", AIR 1983 SC 925 wherein SC observed,

"The advance filing of list of witnesses is necessary because summoning the witnesses by the Court is a time consuming process and to avoid the avoidable delay an obligation is cast on the party to file a list of witnesses whose presence the party desires to procure with the assistance of the Court. But if on the date fixed for recording the evidence, the party  is able to keep his witnesses present despite the fact that the names of the witnesses are not shown in the list filed under sub-rule (1) of Rule 1, the party would be entitled to examine these witnesses and to produce documents through the witnesses who are called to produce documents under Rule 1 of Order XVI"

In view of the aforesaid legal position the bench observed that the trial Court had rightly allowed the application for examination of the witnesses and the contention of the petitioner that this application was only to delay the trial is also without any merit, in view of the fact that the respondents have already deleted almost eighteen witnesses and two have died during the pendency of the trial.

The was thus dismissed as being without any merit.

Case Title : Vijay Singh Vs Lalita Karki & Ors.

Citation : 2022 LiveLaw (JKL) 159

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