JUDGMENT
S.N. Bhargava, J.
1. This is defendants’ second appeal against the judgment and decree passed by Additional District Judge No. 2, Alwar Camp, dismissing the appeal and confirming the judgment and decree passed by Munsif Magistrate, Behror.
2. Learned counsel for both the parties
have made a request before me that this
appeal may be disposed of at admission stage
itself.
3. One of the points raised by learned counsel for the appellants is that defendants were not afforded ample opportunity to lead evidence and defendants’ witnesses were not examined as the list of witnesses was filed late.
4. The suit was filed on 6-10-1975; issues were framed on 14-3-1978 and when the plaintiffs were examining their witnesses, the defendants filed an application on 15-9-1979 along with list of witnesses which they wanted to examine. In the application, it was stated
that the list could not be filed earlier as the defendant was ill. The plaintiffs closed their evidence on 21-4-80 and thereafter, the case was fixed for defendants’ evidence. It was also ordered that if the defendants wanted to get the process issued, process fee should be filed within three days along with the witnesses’ expenses and the case was fixed for 6-5-80. Later on the same day i.e. on 21-4-80, it was further recorded in the order sheet that the plaintiffs (or defendants ?) had filed an application on 15-9-79 giving list of witnesses and the defendants (or plaintiffs ?) wanted to file reply of the said application. Three days time was given to file the reply. The reply was not filed within three days and the case was again adjourned on 6-5-80 for arguments on the application filed by the
defendants on 15-9-79. On the next date i.e. on 23-5-80, neither the defendants nor their counsel was present and therefore, ex parte proceedings were taken and the application dated 15-9-79 was also dismissed. Thereafter, the defendants moved an application for setting aside the ex parte order. The ex parte order was set aside and the case was fixed for recording evidence of the defendants on 21-10-1980. On that day, witnesses Mangal, Bhanwar Singh, Kishori, Kashiram, and Birbal were present, but they were not examined on that day as the Advocates for both the parties wanted time. The witnesses were bound down to appear on the next date i.e. on 3-11-1980. On 3-11-1980, reply to the application dated 15-7-79 was filed, it was submitted that since the list of witnesses was filed beyond time,
the application should be rejected as also that the application had already been rejected on 23-5-1980.
5. Learned trial court after hearing arguments of the parties, dismissed the application dated 15-9-79 by its order dated 3-2-81 on the ground that the defendants had not shown any sufficient cause for not filing the list of witnesses within tune nor they had produced any evidence in support of their application and the witnesses of the defendants were not examined. Learned trial court ultimately vide its judgment dated 5-8-81 decreed the suit of the plaintiffs for permanent injunction. On appeal by the defendants, the learned first appellate court (Additional District Judge No. 2, Alwar Camp) dismissed the same. Hence, this second appeal.
6. Learned counsel for the appellants has placed reliance on Bhanwar Singh v. Gir Raj Prasad, 1977 Raj LW 476 : (AIR 1978 Raj 20); Satnam Transport Company v. Prakash Mal Surana; 1980 Raj LW 213 : (AIR 1981 Raj 75); Jagdish Prasad v. Civil Judge, Jaipur, ; 1985 Rajasthan LR 107 and Mangeram v. Brij Mohan AIR 1983 SC 925.
7. On the other hand, learned counsel for the respondents has supported the judgment of the first appellate court and has stated that no revision petition was filed against the order dated 3-2-81 dismissing the application dated 15-9-79 and that since the defendants have not given any reasons nor had shown any sufficient cause for not Filing the list of witnesses in time, this court should not interfere in second appeal.
8. I have given my thoughtful consideration to the whole matter. I am really pained to observe that the trial Court should have dismissed the application dated 15-9-79. It is true that the parties should file the list of witnesses within the time given in the Civil P.C. but the mere fact that the party has not filed the list of witnesses within time, it cannot take away the right to defend the case and produce the witnesses. In the present case, the witnesses of the plaintiffs were being examined when the list of witnesses was filed
and the evidence of the plaintiffs was closed on 21-4-80, nearly more than six months after the application was filed. Moreover, the defendants’ witnesses were present in court on 21-10-1980 when the case was fixed for recording the evidence and the trial court was expected to record their evidence and in fact, it should have recorded the evidence of those witnesses which had been produced by the defendants without taking any assistance of the court by issuing process. It cannot be said that there is any ulterior motive of the defendants to delay the proceedings. The court has ample discretion to condone the delay in filing the list of witnesses. The procedures prescribed are nothing but had maid of justice and they cannot be utilised to punish a party in this manner. The court’s duty is to do justice between the parties and to arrive at the right conclusion after giving full opportunity to the parties to lead evidence in support of their respective cases. The provisions of Order 16, Rule 1 CPC should be construed liberally. Evidence should not be normally struck off unless the conduct of the party is grossly negligent and if there are serious laches on its part. By exercising its discretion in such manner, the court gives rise to further litigation by way of revision or taking the points in appeal, resulting in prolongation of the litigation, thereby the very object of giving justice speedily and avoiding delay, is defeated. Therefore, the trial Court should exercise its discretion in such a manner so as to do substantial justice and to avoid unnecessary litigation or prolongation of litigation.
9. In this view of the matter, I am inclined to allow this appeal, set aside the judgment and decree of both the learned courts below as also the order dated 3-2-81 rejecting the application filed by the defendants on 15-9-79 and remand the case back to the trial Court for deciding the case afresh after giving reasonable opportunity to the defendants to lead evidence in support of their case in accordance with law. But looking to the facts and circumstances of the case, the parties are left to bear their own costs.