JUDGMENT
N.K. Mody, J.
1. Being aggrieved by the Judgment and the Decree dated 6-10-88 passed by I ADJ, Dhar in Civil Appeal No. 8-A/86 whereby the appeal filed by the appellant was dismissed and the judgment and decree dated 30-4-84 passed by Civil Judge class-II, Sardarpur in Civil Suit No. 52-A/ 81 was maintained, the present appeal has been filed which was admitted by this Court vide order dated 3-5-89 on the following substantial questions of law:
(i) Whether under the facts and circumstances of the case all the witnesses be dis-believed merely on the ground that permission to examine them was not obtained under Order 16, Rule 1 or Rule 3 specially when an objection was raised by the other side and the matter was remitted for recording further statements?
(ii) Whether under the facts and circumstances of the case First Appellate Court was justified in holding that witnesses cannot be relied upon because their names are not given in the pleadings and is the party of the suit supposed to plead the evidence and names of witnesses?
2. Short facts of the case are that present appellant filed a suit for specific performance alleging that respondent is the owner of the suit property who entered into an agreement with the appellant on 6-5-78 for selling the suit property for a consideration of Rs. 3,100/-. It was alleged that sale-deed could not take place at that time because the appellant was not having the money. It was also alleged that suit property was taken on rent by the appellant @ Rs. 17/- per month. Further case of the appellant was that after taking possession of the accommodation as tenant, appellant repaired the suit property by spending a sum of Rs. 230/-. On 15-4-81, appellant asked the respondent to execute the sale-deed after obtaining a sum of Rs. 3100/- but the respondent denied, hence the suit was filed. The suit was contested by the respondent.
3. On the basis of pleadings of parties, learned trial Court framed the issues, recorded the evidence and dismissed the suit, against which an appeal was filed which was also dismissed.
4. Learned Counsel for the appellant submits that the statement of witnesses wee recorded. Therefore, learned Courts below committed error in discarding the same only on the ground that names of witnesses were not disclosed in the list of witnesses. Learned Counsel also submits that in the suit, the facts are required to be pleaded and not the evidence. So far as pleadings are concerned, learned Counsel for appellant draws my attention to Order 6, Rule 2 CPC which lays down that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.
5. So far as submission of list of witnesses is concerned, learned Counsel submits that under Order 16, Rule 1 CPC, the list of witnesses are required to be submitted within 15 days from the date on which the issues are settled whom they propose to call either to give evidence or to produce documents.
It is submitted that Order 16, Rule 1A lays down that – any party to the suit may without applying for summons under Rule 1 bring any evidence or to produce documents. It is submitted that Sub-rule (3) of Rule 1 of Order 16 lays down that the Court may, for reasons to be recorded, permit a party to call, 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 witnesses in the said list. Learned Counsel submits that statement of witnesses were recorded, therefore, suit could not be dismissed only on the ground that names of witnesses were not pleaded in the plaint. As per Order 6, Rule 1 CPC, it is not imcumbent upon the plaintiff to plead the names of witnesses.
6. From perusal of record, it is evident that issues were framed on 10-9-82. PW-1, Jamnalal, appellant himself was examined on 26-4-84. No list of witnesses was submitted by the appellant. PW-2, Parmeshwar Singh and PW-3, Kaluram were examined on 16-7-88 i.e. after more than 4 years. Learned Court below has disbelieved the statement also on the ground that PW-2 and PW-3 were not the listed witnesses. Order 16, Rule 1 Sub-rule (3) permits a party to call those witnesses who were not listed but the parry who examines those witnesses is required to show sufficient cause for the omission to mention the names of such witnesses in the said list. Order 16, Rule 1A authorizes the Court to call any witnesses to give evidence without applying for summons. Since the case of the plaintiff-appellant was based on oral agreement which has been alleged to have taken place in the year 1978 and the witnesses were examined in the year 1988, therefore, it was expected from the appellant to list the names of witnesses before whom the agreement took place in the list of witnesses. Since the appellant did not submit any list of witnesses, therefore, no illegality has been committed by the Courts below in discarding the evidence adduced by the appellant on the ground that those witnesses are unlisted witnesses, hence unbelievable. So far as mentioning the name of witnesses in the plaint is concerned, it is not the requirement of law. Therefore, the suit could not have been dismissed on that ground. However since the suit has also been dismissed on the ground that witnesses examined were not the listed witnesses, therefore, the appeal falls and is dismissed. No order as to costs.