W.P.No.7512/2010
Deepak Kumar & another Abhaychand Jain & others
12.8.2010
Shri O.P.Dwivedi, counsel for petitioners.
Shri Anil Dwivedi, counsel for respondent no.1.
This petition is directed against an order dated 15.4.2010 by
the Civil Judge Class-I Beohari, District Shahdol in civil suit no.20-
A/2009, by which an application filed by the petitioners to summon
two witnesses namely Jaikumar Jain and Ram Prasad Tiwari was
declined.
Learned counsel for petitioners submitted that petitioners want
to examine his predecessor in title Jaikumar Jain and one Ram Prasad
Tiwari, who has purchased the suit property from respondent no.1.
These witnesses refused to accompany the defendants to appear in
the Court, but stated that in case of receipt of summons from the
Court they shall appear before the Court for their evidence. Stating
aforesaid it was submitted by the petitioners that except for issuance
of summons the petitioners were having no other alternative, but the
trial Court rejected the application only on the ground that no list of
witnesses was filed by the petitioners, so summon cannot be issued.
Learned counsel for petitioners submitted that the aforesaid two
witnesses are necessary to be examined for the just decision of the
case. Shri Anil Dwivedi, learned counsel for respondent no.1
submitted that the examination of witness Ram Prasad Tiwari is
totally irrelevant as he is not a material witness. To this learned
counsel for petitioners submitted that Ram Prasad Tiwari is the
purchaser of suit property from plaintiff, so his statement is
necessary.
Order 16 Rule 1 C.P.C., provides 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 sub-rule (1), if
such party shows sufficient cause for the omission to mention the
W.P.No.7512/2010
Deepak Kumar & another Abhaychand Jain & others
name of such witness in the list.
The aforesaid provision specifically provides wide powers to
the Court to summon any witness whose name was not appearing in
the witness list submitted by the party under Rule 1 of Order 16
C.P.C. Merely because no list was filed by the petitioners and if an
application for issuance of summon was filed stating the reasons, the
trial Court ought to have considered the aforesaid application on
merits. Though the petitioners ought to have filed a list of witnesses
in the case, as required under Order 16 Rule 1 C.P.C., but when the
names of these witnesses were disclosed in the application, the trial
Court ought to have issued summons to these witnesses. Apart from
this Jaikumar Jain is the predecessor in title and Ram Prasad Tiwari is
the person who is purchaser of the disputed property from the
plaintiff, so their statements appear to be just for the decision of this
case.
In view of aforesaid, this petition is allowed. The impugned
order is set aside and the trial Court is directed to issue summons to
both the persons on taking steps in this regard by the plaintiff.
Considering the facts of the case, there shall be no order as to costs.
C.C., as per rules.
(Krishn Kumar Lahoti) (J.K.Maheshwari)
JUDGE JUDGE
M.