{"id":255660,"date":"1983-08-03T00:00:00","date_gmt":"1983-08-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mange-ram-vs-brij-mohan-and-others-on-3-august-1983"},"modified":"2017-09-01T16:29:47","modified_gmt":"2017-09-01T10:59:47","slug":"mange-ram-vs-brij-mohan-and-others-on-3-august-1983","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mange-ram-vs-brij-mohan-and-others-on-3-august-1983","title":{"rendered":"Mange Ram vs Brij Mohan And Others on 3 August, 1983"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mange Ram vs Brij Mohan And Others on 3 August, 1983<\/div>\n
Equivalent citations: 1983 AIR 925, 1983 SCR (3) 525<\/div>\n
Author: D Desai<\/div>\n
Bench: Desai, D.A.<\/div>\n
           PETITIONER:\nMANGE RAM\n\n\tVs.\n\nRESPONDENT:\nBRIJ MOHAN AND OTHERS\n\nDATE OF JUDGMENT03\/08\/1983\n\nBENCH:\nDESAI, D.A.\nBENCH:\nDESAI, D.A.\nREDDY, O. CHINNAPPA (J)\n\nCITATION:\n 1983 AIR  925\t\t  1983 SCR  (3) 525\n 1983 SCC  (4)\t36\t  1983 SCALE  (2)63\n\n\nACT:\n     Code of  Civil Procedure,\t1908-O. XVl,  rs. 1  and 1A-\nTrial of  election  petition-Right  to\tbring  any  witness,\nwithout applying  for summons,\tfor examination under r. 1A-\nScope of-Can court decline to examine witnesses kept present\nby party  on the  sole ground that their names have not been\nset out in the list filed in compliance with r. 1?\n\n\n\nHEADNOTE:\n     Sub-r. (1)\t of r. 1 of O. XVI, Code of Civil Procedure,\n1908 casts  an obligation  on every party to a proceeding to\npresent a  list of witnesses whom it proposes to call and to\nobtain summonses  to such  persons for\ttheir attendance  in\ncourt; sub-r.  (2) requires  that  the\tparty  seeking\tsuch\nassistance from\t the court  must make an application stating\nthe  purpose  for  which  the  witness\tis  proposed  to  be\nsummoned; and  sub-r. (3)  confers a discretion on the court\nto permit  a party  to summon through court or otherwise any\nwitness other  than those  whose names\tappear in  the\tlist\nsubmitted under\t sub-r. (1),  if such party shows sufficient\ncause for  the omission\t to mention the name of such witness\nin the said list. Rule 1A of O. XVI enables a party to bring\nin any\twitness without\t applying for summons under r. 1 but\nthis enabling  provision is ' subject to sub-r. (3) of r. 1.\nRule 22\t of the\t \"Rules of  Procedure and  Guidance  in\t the\nmatter of  trial of  Election Petition\tunder Part Vl of the\nRepresentation of  the People  Act, 1951\"  of the Punjab and\nHaryana High  Court merely  re-enacts sub-rs. (1) and (2) of\nr. 1 of o, XVI, C.P.C.\n     Sub-s. (1) of s. 87<\/a> of the Representation of the People\nAct, 1951  makes O.  XVI, c.P.c.  applicable to the trial of\nelection petitions  and the  proviso thereto  gives the High\nCourt the  discretion to refuse to examine any witness if it\nis of  the opinion  that the evidence of such witness is not\nmaterial or  that the  party tendering such witness is doing\nso on  frivolous  grounds  or  with  a\tview  to  delay\t the\nproceedings.\n     The appellant,  who was  the petitioner  in an election\npetition, had  filed an\t application seeking  permission  to\nproduce and  examine witnesses\twhose names  were set out in\nthe application\t and the court had passed appropriate orders\nthereon. When  the court  was recording\t the evidence of the\nappellant he submitted another list of witnesses whom\/he had\nkept present  in the court for being examined, but the court\nrejected the  same for\ttwo reasons.  (i) that the appellant\nhad not mentioned their names in the application made by him\nearlier; and  (ii) that\t there was no mention of the purpose\nfor which  they were  being  offered  for  examination.\t The\nappellant challenged the validity of the Court's order.\n526\n     Allowing the appeal,\n^\n     HELD: It  is obligatory on the party to a proceeding to\nfile the  list of witnesses with the gist of evidence and to\nmake an application for issue of summons as provided in sub-\nrs. (1)\t and (2)  of r. 1, O. XVI only where the party wants\nthe assistance\tof the\tcourt to  procure  the\tpresence  of\nwitnesses; but\twhere the  party is in a position to produce\nits witnesses without the assistance of the court, it can do\nso under r. 1A irrespective of the fact whether the names of\nsuch witnesses\tare mentioned  in the  list or\tnot and\t the\ncourt cannot  decline to  examine them unless it proposes to\nact under  the proviso\tto  sub-s.  (1)\t of  s.\t 87<\/a>  of\t the\nRepresentation of the People Act, 1951. [531 G-H, 532 A]\n     (i) The obligation to file a list of witnesses with the\ngist of\t evidence of each witness within the time prescribed\nunder sub-r.  (1) of  r. 1,  O. XVI  is in  respect of those\nwitnesses to  procure whose  presence the  assistance of the\ncourt is  necessary. And,  this ought  to be  so because the\ncourt  wants   to  be  satisfied  about\t the  necessity\t and\nrelevance of  the evidence  of such  witness whose  presence\nwill be\t procured with\tthe assistance of the court. If mere\nomission to  mention the  name of  a  witness  in  the\tlist\nenvisaged by  sub-r. (1)  of r.\t 1 would enable the court lo\ndecline to  examine such  a witness,  r. 1A  would not\thave\nomitted to  mention that  only those  witnesses kept present\ncould be  examined whose  names are  mentioned in  the\tlist\nenvisaged by sub-r. (1) of  r. 1  and who  can\tbe  produced\nwithout the  assistance of the court. The marginal note of r\n1A reads:  \"Production of witnesses without summons\" and the\nrule proceeds to enable a party to bring any witness to give\nevidence or  produce documents\twithout applying for summons\nunder r.  1. If it was implicit in r. 1A that it enables the\nparty to  examine  only\t those\twitnesses  whose  names\t are\nmentioned in  the list\tfiled under  sub-r. (1) of r. 1 whom\nthe  patty  would  produce  before  the\t court\twithout\t the\nassistance of  the court, it was not necessary to provide in\nr. 1A  that the party may bring any witness without applying\nfor summons under r. 1. [533 B-H]\n     (ii) The  contention that r 1A is subject to sub-r. (3)\nof r. 1 and therefore the court must ascertain how far sub-r\n(3) would  carve out  an exception to the enabling provision\ncontained in  r. 1A  cannot be\taccepted. Sub-r. (3) of r. 1\nand r.\t1A operate  in two  different areas and cater to two\ndifferent situations.  Sub-r. (3)  of r.  1 confers  a wider\njurisdiction on\t the court to cater to a situation where the\nparty has  failed to name the witness in the list and yet is\nunable to  produce him\ton its own under r. 1A and seeks the\nassistance of  the court under sub-r. (3) of r. 1 to procure\nthe presenee of the witness. [534 C-E]\n     (ii) Failure  to comply  with the\tsummons served\ton a\nperson entails certain consequences in law as provided in r.\n10 of  O. XVI:\tthe court may issue a proclamation requiring\nhim to attend to give evidence or to produce the document at\na time\tand place  named therein, or issue a warrant for his\narrest with  or without\t bail, or  impose a  fine on him, or\norder his property to be attached and sold. In view of these\nlegal consequences ensuing from the issuance of a summons by\nthe court and failure to comply with the same, the scheme of\nrs. 1  and 1A of O. XVI and r. 22 of the Rules framed by the\nHigh\n527\nCourt envisaged\t the filing  of a  List only  in respect  of\nwitnesses whom\tthe parties  desire to\texamine and  procure\npresence with  the assistance  of  the\tcourt.\tThe  advance\nfilling of  list is necessary because summoning of witnesses\nby court is a time-consuming process. [532 D-H]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 4379 of
\n1983.\n<\/p>\n
     From the  Judgment and  order dated  the 11th  January,
\n1983 of\t the Punjab  and Haryana High Court at Chandigarh in
\nElection Petition No. 3 of 1982.\n<\/p>\n
     S N. Kacker and V Mayakrishan for the Appellant.
\n     A. K. Sen and Rathin Das for the Respondent.
\n     The Judgment of the Court was delivered by
\n     DESAI, J. On May 3, 1983 we made the following order:
\n\t  “Special leave granted. The appeal is allowed.
\n\t  The order  of the  High  Court  refusing  the
\n     request  of   the\tappellant  to  examine\this  54
\n     witnesses who, according to him, were kept present
\n     is\t varied.   The\telection   petitioner-appellant
\n     herein  shall  produce  all  those\t witnesses  and
\n     examine all  or any of them whomsoever he wants to
\n     examine out  of them  and in  respect of whom, the
\n     Court did\tnot grant  permission to  examine.  The
\n     examination shall be taken up day to day. No Court
\n     assistance need  be  rendered  for\t procuring  the
\n     presence of all or any of them and the examination
\n     shall  be\tcompleted  within  a  span  of\t7  days
\n     commencing from  the date\ton which the High Court
\n     commences examination of witnesses. Subject to the
\n     convenience of  the learned  Judge and the parties
\n     recording of  evidence shall  be taken  up on this
\n     side of the summer vacation of the High Court.
\n\t  In the circumstances of the case, there shall
\n     be no order as to costs. Reasons to follows.”
\nHere are the reasons.\n<\/p>\n
528<\/span><\/p>\n
     Appellant Shri  Mange Ram\tcontested  the\telection  to
\nHaryana Legislative  Assembly from Jind Legislative Assembly
\nconstituency. 14  persons offered  themselves as  candidates
\nfor the\t election. One\tShri Brij  Mohan, 1st respondent was
\ndeclared elected.  Appellant  was  defeated.  The  remaining
\ncandidates lost their deposits. Appellant called in question
\nthe election  of the 1st respondent (the returned candidate)
\nby presenting  . an  election petition\tunder Sec. 81 of the
\nRepresentation of  People Act<\/a>  1951 (‘ 1951 Act’ for short).
\nTo this\t petition, the\treturned candidate  as well  as\t all
\nother candidates  who lost  the election  were impleaded  as
\nparties.  In  the  election  petition,\tcharges\t of  corrupt
\npractice and  irregularities and illegalities in the conduct
\nof election  were made. The returned candidate contested the
\npetition. After\t going through the pleadings of the parties,
\nthe Court  ascertained the  points on  which parties were at
\nvariance  and\tframed\tappropriate   issues.  The  election
\npetition reached the stage of recording evidence.\n<\/p>\n
     It appears\t an application\t was filed by the appellant-
\nelection  petitioner   seeking\tpermission  to\tproduce\t and
\nexamine\t witnesses   whose  names   were  set\tout  in\t the
\napplication. It\t was averred  in the  application  that\t the
\nnames of  the witnesses\t whom  he  desires  to\tproduce\t are
\nalready mentioned  in  the  appropriate\t paragraphs  of\t the
\nelection petition  and that  the petitioner  would keep\t the
\nwitnesses present.  The learned\t Judge to  whom the election
\npetition was  assigned made  an order  on November  29, 1982
\nthat as\t and when witnesses are produced, appropriate orders
\nwill be\t passed determining  whether the  witnesses could or
\ncould not  be produced.\t In the\t meantime, the\tevidence  of
\nelection petitioner  was being\trecorded.  It  appears\tthat
\nagain on  January 11,1983,  petitioner submitted  a list  of
\nwitnesses intimating to the Court that he desires to examine
\nthem. This  was objected  to by\t the returned candidate. The
\nlearned Judge  after  hearing  the  parties  made  an  order
\nupholding the  objection raised\t by the\t returned  candidate
\nthat the purpose for which the witnesses were offered is not
\nmentioned in the list and therefore, the election petitioner
\ncould not  be permitted to examine such witnesses. A further
\nobservation  was   made\t by  the  Court\t that  the  election
\npetitioner could  not be  allowed to  examine more witnesses
\nwhose names  had not been mentioned in the list of witnesses
\nsubmitted in  accordance with the relevant provisions of the
\nCode of\t Civil Procedure  and the  rules framed\t by the High
\nCourt. Accordingly, the learned Judge held that except Bahre
\nson of\tSher Singh,  no other  witness could be examined and
\nthat as\t soon as the evidence of the afore-mentioned witness
\nwas recorded,
\n529<\/span>
\nthe Court  would proceed to record the evidence on behalf of
\nthe returned  candidate; and  thereafter the  matter will be
\nset down  for hearing  oral arguments of the learned counsel
\nof either  side. It  is this  order which  was questioned in
\nthis appeal by special leave.\n<\/p>\n
     An election  petition presented  under Sec.  81 of\t the
\n‘1951 Act’ must satisfy the requirements of Secs. 83 and 84.
\nChapter III  in Part  IV of  the ‘1951\tAct’ lays  down\t the
\nprocedure for  trial of election petitions. Sec. 87 which is
\nmaterial for the present purpose reads as under:\n<\/p>\n
\t  87.  Procedure   before  the\tHigh  Court-(1)
\n     Subject to\t the provisions\t of this Act and of any
\n     rules  made  thereunder  every  election  petition
\n     shall be tried by the High Court, as nearly as may
\n     be in  accordance with  the  procedure  applicable
\n     under the\tCode of\t Civil Procedure,  1908\t (5  of
\n     1908) to the trial of suits:\n<\/p><\/blockquote>\n
\t  Provided that\t the High  Court shall have the
\n     discretion to  refuse, for\t reasons to be recorded
\n     in writing, to examine any witness or witnesses if
\n     it is  of the  opinion that  the evidence\tof such
\n     witness or\t witnesses  is\tnot  material  for  the
\n     decision  of   the\t petition  or  that  the  party
\n     tendering such witness or witnesses is doing so on
\n     frivolous grounds\tor with\t a view\t to  delay  the
\n     proceedings.\n<\/p><\/blockquote>\n
\t  (2) The  provisions of  the  Indian  Evidence
\n     Act<\/a>, 1872\t(1 of  1872),  shall,  subject\tto  the
\n     provisions of  this Act  be deemed to apply in all
\n     respects to the trial of any election petition.”<\/p><\/blockquote>\n
     Order XVI\tRule 1 which is relied-upon on behalf of the
\nreturned candidate reads as under.\n<\/p>\n
\t  “1.  List   of  witnesses   and  summons   to
\n     Witnesses-(1) on  or before such date as the Court
\n     may appoint, and not later than fifteen days after
\n     the date  on which\t the issues  are  settled,  the
\n     parties shall present in Court a list of witnesses
\n     whom they\tpropose to call either to give evidence
\n     or to  produce documents  and obtain  summonses to
\n     such persons for their attendance in Court.\n<\/p><\/blockquote>\n
530<\/span><\/p>\n
\t  (2) A party desirous of obtaining any summons
\n     for the  attendance of  any person\t shall file  in
\n     Court an  application stating  therein the purpose
\n     for which the witness is proposed to be summoned.
\n\t  (3)  The   Court  may,   for\treasons\t to  be
\n     recorded, permit  a  party\t to  call,  whether  by
\n     summoning through Court or otherwise, any witness,
\n     other than\t those whose  names appear  in the list
\n     referred to  in sub-rule  (1), if such party shows
\n     sufficient cause  for the\tomission to mention the
\n     name of such witness in the said list.
\n\t  (4) Subject  to the  provisions  of  sub-rule
\n     (2), summonses  referred to  in this  rule may  be
\n     obtained by  the parties  on an application to the
\n     Court or  to such\tofficer as  may be appointed by
\n     the Court in this behalf.\n<\/p><\/blockquote>\n
\t  1A, Production  of witnesses without summons-
\n     Subject to\t the provisions of sub-rule (3) of Rule
\n     1, any party to the suit may, without applying for
\n     summons under  rule 1,  bring any\twitness to give
\n     evidence or to produce documents.”\n<\/p><\/blockquote>\n
Rule  1A  was  inserted\t by  the  Code\tof  Civil  Procedure
\n(Amendment)  Act<\/a>,  1956.  Both\tRule  1\t and  1A  have\tbeen
\ndrastically amended  by the  Amending Act<\/a>,  1976 which\tcame
\ninto force  on February\t 1, 1977.  Rules 1  and 1A extracted
\nhereinabove are\t the amended rules in force from February 1,
\n1977.\n<\/p>\n
     At the hearing of the appeal, a statement was made that
\nthe Punjab  and Haryana\t High Court has introduced a proviso
\nto subrule (4) of Rule 1 of order XVI. It reads as under:\n<\/p>\n
\t  “Provided that no party who has begun to call
\n     his witnesses  shall be entitled to obtain process
\n     to enforce\t the attendance\t of any witness against
\n     whom process  has not  previously\tissued,\t or  to
\n     produce any  witness not  named in\t a list,  which
\n     must be  filed in\tCourt on  or before the date on
\n     which  the\t hearing  of  evidence\ton  his\t behalf
\n     commences and  before the\tactual commencement  of
\n     the hearing  of such evidence without any order of
\n     the Court\tmade in writing and stating the reasons
\n     therefor.”\n<\/p><\/blockquote>\n
531<\/span><\/p>\n
In exercise  of the powers conferred by clauses 27 and 35 of
\nthe Letters  Patent and\t Sec.  129  of\tthe  Code<\/a>  of  Civil
\nProcedure, 1908,  the High  Court of  Punjab and Haryana has
\nframed rules  styled as\t ‘Rules of Procedure and Guidance in
\nthe matter  of trial  of Election Petitions under Part VI of
\nthe Representation  of the  People Act,\t 1951’\t(High  Court
\nRules for  short). Rule\t 22 of\tthe aforementioned  rules is
\nrelevant. It reads as under:\n<\/p>\n
\t  “22(1) A  party  desirous  of\t requiring  the
\n     attendance of  his witnesses  at the  trial of the
\n     petition through  the process  of the  High  Court
\n     shall, within  fifteen days  of the  settlement of
\n     the issues, make an application for the purpose to
\n     the Registrar.  The said application shall contain
\n     the names\tof the said witnesses and a gist of the
\n     facts to  be proved by each one of them. A copy of
\n     the said  application shall, also, be delivered by
\n     the party\tor his Advocate to the Advocate for the
\n     opposite party  or if  the same is not represented
\n     by an  Advocate, to  the said  party, at  the same
\n     time it is made to the Registrar. .. ,”<\/p><\/blockquote>\n
     The neat  question of  law\t is:  where  a\tparty  to  a
\nproceeding does not wish to have the assistance of the Court
\nfor the\t purpose of procuring the attendance of a witness or
\nwitnesses, could  he be\t denied the  privilege of  examining
\nwitnesses  kept\t present  by  him  on  the  date  fixed\t for
\nrecording his evidence, on the sole ground that the names of
\nthe witnesses and the gist of evidence have not been set out
\nin the\tlist which  may or  ought  to  have  been  filed  in
\ncompliance with\t order XVI  Rule 1  of\tthe  Code<\/a>  of  Civil
\nProcedure ?\n<\/p>\n
     Sub-rule (1) of Rule 1 of order XVI casts an obligation
\non every  party\t to  a\tproceeding  to\tpresent\t a  list  of
\nwitnesses whom it t proposes to call either to give evidence
\nor to produce documents and obtain summonses to such persons
\nfor their  attendance in  Court. Sub-rule  (2) requires that
\nthe  parties   seeking\tthe  assistance\t of  the  Court\t for
\nprocuring  the\t attendence  of\t  a  witness  must  make  an
\napplication  stating  therein  the  purpose  for  which\t the
\nwitness is  pro posed to be summoned. Sub-rule (3) confers a
\ndiscretion on  the Court to permit a party to summon through
\nCourt or  otherwise any witness other than those whose names
\nappear in  the list submitted in sub-rule (1), if such party
\nshows sufficient  cause for the omission to mention the name
\nof such witness in the said list. Rule 1A in its
\n532<\/span>
\namended form  in force\tsince 1977  enables a party to bring
\nany witness  to give  evidence or  to produce  documents but
\nthis  enabling\t provision  is\t subject  to  the  provision
\ncontained in  sub-rule (3)  of Rule  1 of  order XVI.  If  a
\nreference to  Rule 22 of the High Court Rules is recalled at
\nthis stage,  it merely\treenacts sub-rule  (2) of  Rule 1 of
\norder XVI.\n<\/p>\n
     If the  requirements of these provisions are conjointly
\nread and  properly analysed,  it clearly transpires that the
\nobligation to  supply the  list as  well as  the gist of the
\nevidence of  each witness  whose name is entered in the list
\nhas to\tbe carried  out in  respect of\tthose witnesses\t for
\nprocuring whose attendance the party needs the assistance of
\nthe Court.  When a  summons  is\t issued\t by  the  Court\t for
\nprocuring  the\t presence  of  a  witness,  it\thas  certain
\nconsequences in law. If the summons is served and the person
\nserved fails  to comply\t with the same, certain consequences
\nin law\tensue as  provided in  Rule 10\tof  order  XVI.\t The
\nconsequence is\tthat where  the witness\t summoned either  to
\ngive evidence  or to produce documents fails to attend or to
\nproduce the  documents in  compliance with such summons, the
\nCourt on  being satisfied of the service as provided therein
\nand is\tfurther satisfied that the person has without lawful
\nexcuse failed  to honour the summons, the Court may issue is
\na proclamation\trequiring him  to attend to give evidence or
\nto produce  the document  at a\ttime and  place to  be named
\ntherein; and a copy of such proclamation shall be affixed in
\nthe manner  therein provided. Simultaneously, the Court may,
\nin its\tdiscretion, issue  a warrant, either with or without
\nbail, for  the arrest  of such person, and may make an order
\nfor the\t attachment of\this property  for such\tamount as it
\nthinks fit.  Even if thereafter the witness fails to appear,
\nthe Court  may impose  upon him such fine not exceeding five
\nhundred rupees\tas it  thinks  fit,  having  regard  to\t his
\ncondition in life and all the circumstances of the case, and
\nmay order his property, or any part, thereof, to be attached
\nand sold  as provided  in Rule\t12 of  order XVI. In view of
\nthis legal  consequence\t ensuing  from\tthe  issuance  of  a
\nsummons by  the Court  and failure  to comply with the same,
\nthe scheme  of Rules  1, 1A  of order XVI and Rule 22 of the
\nRules framed by the High Court clearly envisaged filing of a
\nlist only in respect of witnesses whom the parties desire to
\nt examine  and procure\tpresence with  the assistance of the
\nCourt. There, however, remains an area where if the party to
\na proceeding does not desire the assistance of the Court for
\nprocuring the presence of a witness, obviously the party can
\nproduce such witness on the date of
\n533<\/span>
\nhearing and  the Court cannot decline to examine the witness
\nunless the  Court proposes  to act under the proviso to sub-
\nsec. (1)  of Sec.  87 of  the ‘1951  Act’ which\t enables the
\nCourt for  reasons to  be recorded  in writing, to refuse to
\nexamine any  witness or\t witnesses if  it is  of the opinion
\nthat the  evidence of  such  witness  or  witnesses  is\t not
\nmaterial for  the decision of the petition or that the party
\ntendering such witness or witnesses is doing so on frivolous
\ngrounds or  with  a  view  to  delay  the  proceedings.\t It,
\ntherefore, unquestionably  transpires that the obligation to
\nsupply the  list of  witnesses within  the  time  prescribed
\nunder sub-rule\t(1) of\tRule 1 of order XVI is in respect of
\nwitnesses to  procure whose  presence the  assistance of the
\nCourt is  t necessary.\tAnd this  ought to be so because the
\nCourt  wants   to  be  satisfied  about\t the  necessity\t and
\nrelevance of  the evidence  of such  witness whose  presence
\nwill be\t procured with the assistance of the Court. This not
\nonly explains  the necessity  of setting  out the  names  of
\nwitnesses in  the list but also the gist of evidence of each
\nwitness. If  mere omission  to mention the name of a witness
\nin the list envisaged by sub-rule (1) of Rule 1 of order XVI
\nwould enable  the Court\t to decline to examine such witness,
\nRule 1A\t of order XVI would not have omitted to mention that
\nonly those  witnesses kept  present could  be examined whose
\nnames are  mentioned in\t the list  envisaged by sub-rule (1)
\nand who can be produced without the assistance of the Court.
\nViewed from this angle, Rule 1A becomes wholly redundant. If
\nit is  obligatory upon\tthe party  to mention the 1 names of
\nall witnesses  irrespective of\tthe fact whether some or all
\nof them\t are to be summoned and even the names of those whom
\nthe party  desires to  produce without the assistance of the
\nCourt are  also required  to be mentioned in the list on the
\npain that  they may not be permitted to be examined, Rule 1A
\nwould have  given a  clear legislative\texposition  in\tthat
\nbehalf and  the marginal  note of  Rule 1A clearly negatives
\nthis  suggestion.   Marginal  note   of\t Rule  1A  reads  as
\n‘Production of\twitnesses  without  summons’  and  the\trule
\nproceeds to  enable a  party to\t bring any  witness to\tgive
\nevidence  or  to  produce  documents  without  applying\t for
\nsummons under  Rule 1. If it was implicit in Rule 1A that it
\nonly enables the party to examine only those witnesses whose
\nnames are  mentioned in the list filed under sub rule (1) of
\nRule 1 whom the party would produce before the Court without
\nthe assistance of the Court, it was not necessary to provide
\nin Rule\t 1A that  the party  may bring\tany witness  to give
\nevidence  or  to  produce  documents  without  applying\t for
\nsummons under  R Rule 1. Rule 1A of order XVI clearly brings
\nto surface  the\t two  situations  in  which  the  two  rules
\noperate. Where the party wants
\n534<\/span>
\nthe assistance of the Court to procure presence of a witness
\non being summoned through the Court, it is obligatory on the
\nparty to  file the list with the gist of evidence of witness
\nin the\tCourt as directed by sub-rule (1) of Rule 1 and make
\nan application\tas provided  by sub-rule  (2) of Rule 1. But
\nwhere the  party would\tbe in  a  position  to\tproduce\t its
\nwitnesses without  the assistance of the Court, it can do so
\nunder Rule  1A of order XVI irrespective of the fact whether
\nthe name of such witness is mentioned in the list or not.\n<\/p>\n
     It was,  however. contended  that Rule 1A is subject to
\nsub-rule (3)  of  Rule\t1  and\ttherefore,  the\t Court\tmust
\nascertain how  far sub-rule (3) would carve out an exception
\nto the\tenabling provision contained in Rule 1A. There is no
\ninner contradiction  between sub-rule (1) of Rule 1 and Rule
\n1A of Order XVI. Sub-rule (3) of Rule 1 of Order XVI confers
\na wider\t jurisdiction on  the Court  to cater to a situation
\nwhere the  party has  failed to name the witness in the list
\nand yet the party is unable to produce him or her on his own
\nunder Rule 1A and in such a situation the party of necessity
\nhas to\tseek the  assistance of the Court under sub-rule (3)
\nto procure  the presence of the witness and the Court may if
\nit is  satisfied that the party has sufficient cause for the
\nomission to  mention the  name of  such witness\t in the list
\nfiled under  sub-rule (1)  of Rule  1, the  Court may  still
\nextend its  assistance for  procuring the presence of such a
\nwitness by  issuing a summons through the Court or otherwice
\nwhich ordinarily  the court  would not\textend for procuring
\nthe attendance\tof a  witness whose name is not shown in the
\nlist. Therefore,  sub-rule (3) of Rule 1 and Rule 1A operate
\nin  two\t  different  areas   and  cater\t  to  two  different
\nsituations.\n<\/p>\n
     The analysis  of the  relevant provisions would clearly
\nbring out  the underlying scheme under order XVI Rules 1 and
\n1A, and\t Rule 22  of the High Court Rules would not derogate
\nfrom such  scheme. The scheme is that after the Court framed
\nissues which  gives notice  to the  parties what  facts they
\nhave to\t prove for  succeeding in  the matter  which  notice
\nwould enable the parties to determine what evidence oral and
\ndocumentary it\twould like  to lead, the party should file a
\nlist of\t witnesses with the gist of evidence of each witness
\nin the\tCourt within  the time\tprescribed by  sub-rule (1).
\nThis advance  filing of\t list is necessary because summoning
\nthe witnesses  by the  Court is a time consuming process and
\nto avoid  the avoidable\t delay an  obligation is cast on the
\nparty to  file a  list of witnesses whose presence the party
\ndesires to procure with the assistance of the
\n535<\/span>
\nCourt. But  if on the date fixed for recording the evidence,
\nthe party  is able to keep his witnesses present despite the
\nfact that  the names  of the  witnesses are not shown in the
\nlist filed  under sub-rule (1) of Rule 1, the party would be
\nentitled to examine these witnesses and to produce documents
\nthrough the  witnesses who  are called\tto produce documents
\nunder Rule  1A. The  only  jurisdiction\t the  Court  has  to
\ndecline to examine the witness is the one set out in proviso
\nto Sec.\t 87 (1) of ‘1951 Act’, the discretion being confined
\nto refusing  to examine\t witnesses on  the ground  that\t the
\nevidence is either frivolous or vexatious or the evidence is
\nled to\tdelay the  proceedings. Save  this the\tCourt has no
\njurisdiction to\t decline to  examine the witness produced by
\nthe party and kept present when the evidence of the party is
\nbeing recorded\tand is\tnot closed,  and the  Court  has  no
\njurisdiction to refuse to examine the witness who is present
\nin the\tCourt on  the short  ground that  the  name  of\t the
\nwitness was  not mentioned  in the list filed under sub-rule
\n(1) of Rule 1 of order XVI. This scheme clearly emerges from
\nthe various provisions herein discussed.\n<\/p>\n
     If the  scheme of\tthe various  provisions is as herein
\ndiscussed, obviously,  the order  of the  learned  Judge  is
\nwholly unsustainable.  He declined to examine the witness by
\naccepting the  submission of the returned candidate that the
\nnames of  the witnesses\t whom the  appellant kept present in
\nthe Court  were not  mentioned in the list. This is the only
\nground on  which the  learned Judge  declined to  permit the
\nappellant to  examine his witnesses who were kept present in
\nthe  Court   and  this\t ground\t is  utterly  unsustainable.
\nTherefore, the\torder of the learned Judge had to be quashed
\nand was accordingly quashed and the appeal was allowed.\n<\/p>\n
H.L.C.\t\t\t\t\t     Appeal allowed.\n536<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mange Ram vs Brij Mohan And Others on 3 August, 1983 Equivalent citations: 1983 AIR 925, 1983 SCR (3) 525 Author: D Desai Bench: Desai, D.A. PETITIONER: MANGE RAM Vs. RESPONDENT: BRIJ MOHAN AND OTHERS DATE OF JUDGMENT03\/08\/1983 BENCH: DESAI, D.A. BENCH: DESAI, D.A. REDDY, O. CHINNAPPA (J) CITATION: 1983 AIR […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-255660","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMange Ram vs Brij Mohan And Others on 3 August, 1983 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mange-ram-vs-brij-mohan-and-others-on-3-august-1983\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mange Ram vs Brij Mohan And Others on 3 August, 1983 - 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