Rajasthan High Court – Jodhpur
Lrs Of Late Shri Jetha Ram vs Nain Singh & Anr on 29 October, 2009
S.B.CIVIL WRIT PETITION NO.1034/2009
LRrs of Jetha Ram vs. Nain Singh & Ors.
DATE OF ORDER : 29/10/2009
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S.B.CIVIL WRIT PETITION NO.1034/2009
(LRrs of Jetha Ram vs. Nain Singh & Ors.)
DATE OF ORDER : 29/10/2009
HON'BLE DR.JUSTICE VINEET KOTHARI
Mr.C.S.Kotwani, for the petitioners.
Mr.Amit Mehta, for the respondents.
1. Heard learned counsels.
2. This writ petition has been filed by the defendant, L.Rs of Jetha
Ram, challenging the impugned order dated 19/1/2009, whereby, the
learned trial court rejected the application of the defendant under
Order 16 Rule 1(3) CPC for summoning the two witnesses during the
course of the defendant's evidence, (i) Dr.Keshav Kotwani and (ii)
Collector (Stamps). Said application was filed by the defendants on
the ground that Jetha Ram executed the sale deed in favour of the
plaintiff under the influence of opium and he was being treated by
Dr.Keshav Kotwani and, therefore, even though list of witnesses filed
by the defendants did not include the name of these two witnesses,
they were required to be summoned by the learned trial court in
support of defence evidence. The other witness namely Collector
S.B.CIVIL WRIT PETITION NO.1034/2009
LRrs of Jetha Ram vs. Nain Singh & Ors.
DATE OF ORDER : 29/10/2009
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(Stamps) was sought to be summoned on the ground that the said
authority had held an inquiry into the execution of the sale deed in
question and, therefore, summoning of that authority was also
necessary.
3. Learned trial court rejected the said application inter alia on
two grounds; (i) that names of these two witnesses was not included
in the list of witnesses and (ii) said application was belatedly filed
when the plaintiff evidence was already over and to delay the trial,
the defendants have moved this application, which was liable to be
rejected at the cost of Rs.300/-. Being aggrieved of the said order, the
defendant have approached this Court by way of present writ petition.
4. Mr. C.S.Kotwani, learned counsel for the defendant petitioners
submitted that Order 16 Rule 1 (3) CPC permits the trial court, for
reasons to be recorded, to call or summon witness even though such
witness do not figure in the list of witnesses filed by the party, if such
party shows sufficient cause for omission to mention the name of
such witness in the said list. He submitted that, relying upon the
various decisions of different High Courts including this Court, that
S.B.CIVIL WRIT PETITION NO.1034/2009
LRrs of Jetha Ram vs. Nain Singh & Ors.
DATE OF ORDER : 29/10/2009
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the provisions of Order 16 Rule 1 (3) CPC are directory in nature,
therefore, in the interest of justice said witnesses can be summoned
by the learned trial court even though their names were not included
in the list of witnesses filed by the defendants. The case laws relied
upon by the learned counsel for the petitioners are as under:-
(i) Eldhose vs. Yacob & Ors. - AIR 2009 Kerala 104
(ii) Minor Dipika & etc. vs. C.G.State Electricity Board &
Anr. - AIR 2007 Chhattisgarh 1
(iii) Gopala Krishna Murthy vs. B. Ramchander Rao & Ors. -
AIR 1973 AP 309
(iv) Bakridi & Ors. vs. In-charge District Judge - 2007 AIHC
340
(v) Rehman Hussain vs. Altaf Hussain & Anr.- 2004 (2)
Kar.L.J. 361
(vi) Satnam Transport Co. & anr. Prakash Mal Surana - AIR
1981 Raj. 75
(vii) N.Balraju & Anr. vs. G. Vidhyadhar - AIR 2004 AP 516
(viii) Bhanwar Singh & Anr. vs. Gir Raj Prasad - AIR 1978
Rajasthan 20
(ix) Kalu & Anr. vs. Chhitar & others - AIR 1987 Rajasthan
206
S.B.CIVIL WRIT PETITION NO.1034/2009
LRrs of Jetha Ram vs. Nain Singh & Ors.
DATE OF ORDER : 29/10/2009
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5. On the side opposite, Mr. Amit Mehta, learned counsel
appearing for the respondent plaintiff submitted that requirement of
Order 16 Rule 1 (1) CPC for furnishing the list of witnesses is
mandatory in nature and, therefore, it cannot be easily be waived or
dispensed with. Moreover, in order to delay the trial the defendants
moved the said application in the suit filed in 2000, when the
plaintiff's evidence was closed on 6/12/2008 and defendants' evidence
was to start in the year 2009. He urged that it was open for the
defendants to produce these witnesses as his own witnesses. Order
16 Rule 1A CPC permits such witnesses to be produced even though
their names are not included in the list of witnesses. He, therefore,
submitted that application filed by the defendant under Order 16 Rule
1 (3) CPC was misconceived and has been rightly rejected by the trial
court with cost.
6. Having heard learned counsels and upon perusal of the record
of the case and reasons given in the impugned order, this court is
satisfied that the learned trial court has not committed any error in
rejecting the application filed by the defendant petitioner under Order
16 Rule 1 (3) CPC.
S.B.CIVIL WRIT PETITION NO.1034/2009
LRrs of Jetha Ram vs. Nain Singh & Ors.
DATE OF ORDER : 29/10/2009
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7. It is true that provisions of Order 16 Rule 1 (3) are directory in
nature and permit the trial court to summon such witnesses, whose
names are not included in the list of witnesses and in the interest of
justice, if the Court is of the opinion that summoning of such
witnesses is necessary. It is equally true that what is permitted to the
trial court is what it can do but does not mandate at the same time to
learned trial court that it should do a particular thing. It is absolutely
within the discretion of the learned trial court to assign reasons, either
for summoning such witnesses or for refusing to summon such
witnesses. In the present case, Dr. Keshav Kotwani, who was sought
to be summoned on the ground that he was treating the said Jetha
Ram for his opium habit, could very well be produced by the
defendant as his own witness. As far as other witness Collector
(Stamps) is concerned, who was sought to be produced in order to
prove the inquiry report for the inquiry allegedly held by him, it is
seen that said inquiry report is certainly a public document and
certified copy of which could have been obtained and produced by
the defendants before the trial court, which was admissible in
evidence. To avoid his own inconvenience, the defendants in the
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DATE OF ORDER : 29/10/2009
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present case threw this burden on the trial court, at the time his
evidence has only commenced. Such application, is believed, and has
rightly been believed to have been filed merely with a view to cause
delay in the trial. Such application cannot be said to be a bonafide.
Therefore, the learned trial court cannot said to have committed any
error in rejecting the said application with cost.
8. This Court finds no force in the submissions of the learned
counsel for the defendant petitioners and without any quarrel to the
preposition of law laid down in the case laws cited by the learned
counsel for the petitioners, this petition is liable to be dismissed and
same is accordingly dismissed.
(DR.VINEET KOTHARI), J.
item no. 1
baweja/-