JUDGMENT
P.K. Misra, J.
1. Defendant has filed this revision against the order of the Civil Judge (Senior Division), Jeypore, in O.S. No. 53/95. The said suit relates to a proceeding under Sections 30 and 33 of the Arbitration Act. The case had been posted to 6.9.1999 for hearing. The defendant-petitioner had produced one M.L. Malviya as witness. Soon after the examination of the said witness had commenced, the plaintiff filed an application raising objection to the witness being examined on the ground that the case had been posted for examination of other witnesses and defendant had not indicated the name of M. L. Malviya in the witness list. The trial Court after hearing both sides passed an order on 14.9.1999 accepting the contention of the plaintiff. The trial Court directed that the portion of the evidence already recorded shall be expunged and the defendant shall not be permitted to further examine M. L. Malviya. The trial Court also did not permit the defendant to examine any other witness. By a subsequent order, the trial Court also rejected two other petitions filed by defendant for examination of witnesses.
2. The trial Court in its order observed that earlier the case was being adjourned for examination of two other witnesses, namely D. K. Raju and B. Padmanavam and the case had been posted to 6.9.1999 for examining those witnesses. It further observed that since those witnesses were not produced and M. L. Malviya was never intended to be examined as a witness, the defendant cannot be permitted to examine such witness. Though the trial Court has not referred to any provision of the Code of Civil Procedure (in short, the “C.P.C.”) it is apparent that the trail Court has relied upon the provisions contained in Order 16, Rules 1 and C.P.C.
3. The provisions of Order 16, Rules 1 and 1-A, relevant for the purpose, are extracted hereunder :
“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 summonces to such persons for their attendance in Court.
(2) A 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.
(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.
(4) Subject to the provisions of Sub-rule (2) summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the Court in this behalf.
1-A. Production of witnesses without summons. –
Subject to the provisions of sub-rule (3) of Rule 1, any party to the suit may without applying for summons under Rule 1, bring any witness to give evidence or to produce documents.”
The provision of Order 16, and Rule 1-A had been introduced by way of amendment in 1977.
4. The provisions of order 16, Rules 1 and 1 -A came up for discussion in the decision of the Supreme Court reported in A.I.R. 1983 Supreme Court, 925 (Mange Ram v. Brij Mohan and Ors.). Though the aforesaid decision related to an election dispute under the Representation of People Act, the discussion made by the Supreme Court relating to the scope of Order 16, Rules 1 and 1-A is of general application. After referring to the provisions of Order 16, Rules 1 and 1-A, the Supreme Court posed the following question :
“…….Where a party to a preceding does not wish to have the assistance of the Court for the purpose of procuring the attendance of a witness or witnesses, could he be denied the privilege of examining witnesses kept present by him on the date fixed for recording his evidence, on the sole ground that the names of the witnesses and the gist of evidence have not been set out in the list which may or ought to have been filed in compliance with Order XVI, Rule 1 of the Civil P.C. ? ”
The Supreme Court then proceeded to observe :
” 8. Sub-rule (1) of Rule 1 of Order XVI casts an obligation on every party to a proceeding to present a list of witnesses whom it proposes to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court. Sub-rule (2), requires that the parties seeking the assistance of the Court for procuring the attendance of a witness must make an application sating therein the purpose for which the witness is proposed to be summoned. Sub-rule (3) confers a discretion on the Court to permit a party to summon through Court or otherwise any witness other than those whose names appear in the list submitted in Sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. Rule 1-A in its amended form in force since 1977 enables a party to bring any witness to give evidence or to produce documents but this enabling provision is subject to the provision contained in sub-rule (3) of Rule 1 of Order XVI……”
The Supreme Court further observed :
” 9….. Where the party wants the assistance of the Court to procure presence of a witness on being summoned through the Court, it is obligatory on the party to file the list with the gist of evidence of witness in the Court as directed by Sub-rule (I) and make an application as provided by Sub-rule (2) of Rule 1. But where the party would be in a position to produce its witnesses without the assistance of the Court, it can do so under Rule 1-A of Order XVI irrespective of the fact whether the name of such witness is mentioned in the list or not. ”
The further contention that provision’ of Rule 1-A was subject to sub- rule (3) of Rule 1 was answered in the following manner :
“10….There is no inner contradiction between Sub-rule (1) of Rule 1 and Rule 1-A of Order XVI. Sub-rule (3) of Rule 1 of Order XVI confers a wider jurisdiction on the Court to cater to a situation where the party has failed to name the witness in the list and yet the party in unable to produce him or her on his own under Rule 1-A and in such a situation the party of necessity has to seek the assistance of the Court under Sub-rule (3) to procure the presence of the witness and the Court may if it is satisfied that the party has sufficient cause for the omission to mention the name of such witness in the list filed under Sub-rule (1) of Rule 1, the Court may still extend its assistance for procuring the presence of such a witness by issuing a summons through the Court or otherwise which ordinarily the Court would not extend for procuring the attendance of a witness whose name is not shown in the list. Therefore, sub-rule (3) of Rule 1 and Rule 1-A operate in two different areas and cater to two different situations.”
The aforesaid decision has also full application to trial of suits even though it was rendered in the context of an election dispute. Applying the ratio of the aforesaid decision, there cannot be any doubt that the defendant had the right to examine the witness produced by the defendant on the date fixed for hearing even though name of such witness had not been indicated in the list of witnesses furnished by the defendant.
It is, of course, true that in the decision of this Court reported in 1988 (I) OLR 398 (M/s. Bennett Coleman & Co. Ltd. and Ors. v. Janaki Ballav Patnaik) it appears that a different view has been taken. In the said decision, though reference has been made to the decision of the Supreme Court reported in AIR 1983 Supreme Court, 925 (supra) it has been held that a party cannot be exempted from filing the list of his witnesses. The decision was in the context of petition filed by one of the parties for being exempted from furnishing a list of witnesses. It is doubtful if the aforesaid decision can be of any assistance in the present case, where facts are completely different.
5. In the present case, the defendant had already produced the witness and the examination of the said witness had commenced, but at that stage petition was filed by the adversary for discontinuing the further examination of the witness and for expunging the evidence. Even assuming that provisions of Order 16, Rule 1 (3) were applicable, a discretion vested in the trial Court to permit examination of witness not furnished in the list. The trial Court having already examined in part the witness produced, there was hardly any scope for directing expunction of the evidence of the witness.
6. For the aforesaid reasons, the order of the trial Court cannot be sustained and the orders passed on 14.9.1991 are quashed. The defendant shall be permitted to produce M.L. Malaviya and such other witnesses for examination and the trial Court shall proceed to decide the case thereafter. Since the defendant had already availed of several opportunities, it is made clear that the defendant shall produce all his witnesses on a date to be fixed by the trial Court. The suit should be disposed of as expeditiously as possible, preferably by end of January, 2000.
The Civil Revision is accordingly allowed. There would be no order as to costs.