Orissa High Court
Bennett Coleman & Co. Ltd. vs Janaki Ballav Patnaik on 9 March, 1988
Equivalent citations: AIR1989ORI145, AIR 1989 ORISSA 145, (1988) 23 REPORTS 100, (1988) 65 CUTLT 776, (1988) 1 ORISSA LR 398, (1988) 1 CURCC 1091
ORDER K.P. Mohaptra, J.
1. This is a petition by defendants 1 to 3 for exemption of compliance with the provisions of Order 16, Rule 1 of the Civil P.C. ('Code' for short). It is stated in the petition that they came to know that their witnesses in the suit were threatened by the plaintiff and/or his representatives/supporters in order to gain them over. They are also being tempted with money so as to desist from giving evidence in the suit against the plaintiff and in support of defendants 1 to 3. The lives of the witnesses on account of threats are in danger. Therefore, in the interest of justice.
their names should not be disclosed in accordance with the provisions of Order 16, Rule 1 of the Code. They have undertaken to produce the witnesses in time whenever the yare called upon to be examined.
2. The plaintiff in a counter has stoutly denied the allegations made in the petition. It is stated that none of the witnesses of defendants 1 to 3 has been threatened by himor his representatives or supporters. None of them has been gained over or tempted with money so as to desist them from giving evidence against him and in support of these defendants. Their lives are also not in danger. As a matter of fact, until ;.30-7-1987, when defendants 1 to 3 filed their list of three witnesses, he had no occasion to know the names of their witnesses. It is stated that for fair trial of the suit and in the interest of justice he should be given sufficient time to ascertain the antecedents and the background of the witnesses who are to figure as defence I Witnesses so that he would be in a position to lead appropriate and necessary evidence, as well as to enable his Advocate to cross-examine the said witnesses.
3. A rejoinder has been filed by defendants 1 to 3 denying some of the istatements made in the plaintiffs counter. It is not necessary to make specific reference to the same.
4. By order dt. 31-7-1987, on the prayer of the learned counsel for defendants 1 to 3 the effect that if necessary he will file an additional list of witnesses later, these defendants were allowed to do so within ten days. No such list of witnesses was, however, filed within the specified date.
5. For facility of reference, Rules 1 and 1A of Order 16 of the Code are reproduced below : --
"Rule 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 summonses 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 who 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 maybe obtained by parties on an application to the Copurt or to such officer as may be appointed by the Court in this behalf.
Rule 1A. 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."
A plain interpretation of the provisions made in Rule 1 shows that a party cannot be excepted from producing the list of witnesses to be examined by him in the suit. That is why defendants 1 to 3 have not stated in the petition under consideration as to under what provision they have filed the same to withhold the names of their witnesses to be examined in the suit.
6. Order 16, Rule 1 came to be interpreted by this Court in ILR (1979) 1 Cuttack 165, Adaramani Dei v. Ichhamoni Bewa. It was held as follows : --
"Under Order 16, Rule 1, Civil Procedure Code after issues are settled in a suit the parties have to present in Court a list of their witnesses whom they propose to call either to give evidence or to produce documents and obtain summons to such persons for their attendancein Court. Under the said rule this step has to be taken not later than fifteen days afterissues are settled. This is a wholesome provision in the Code intending to give notice to a party about the witnesses which its ladversary is to examine in the case so that it would be in a position to know the nature of evidence it has to meet."
Rules 1 and 1A also came up for interpretation before the Supreme Court in AIR 1983 SC 925, Mange Ram v. Brij Mohan. It was held as follows (at pp. 927, 928 and 929) :-
"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.
x x x x x x x x If the requirements of these provisions are conjointly read and property analysed, it clearly transpires that the obligation to supply the list as well as the gist of the evidence of each witness whose name is entered in the list has to be carried out in respect of those witnesses for procuring whose attendance the party needs the assistance of the Court.
X X X X X 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 (1) of Rule 1 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 1A of Order XVI irrespective of the fact whether the name of such witness is mentioned in the list or not.
x x x x x.
There is no inner contradiction between Sub-rule (1) of Rule 1 and Rule 1A 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 is unable to produce him or her on his own under Rule 1A 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 1A operate in two different areas and cater to two different situations."
7. In the aforesaid background of the principles laid down by this Court, as well as the Supreme Court, there is no scope nor any law under which a party to a suit can be exempted from filing the list of his witnesses, It is to be remembered that parties to a suit high or low are placed at par without any distinction in order to enable them to place their cases properly before the Court. They should not only disclose the names of witnesses, but also be entitled to know the names of witnesses of the adversary. If this principle is not adhered to, there cannot be a fair trial.
8. In the present case, issues have been settled on 30-6-1987 and parties were directed to submit their lists of witnesses on 14-7-1987. By order dated 14-7-1987 time was extended till 22-7-1987 for submission of lists of witnesses.
9. The main intention of defendants 1 to 3 in making the petition seems to be that if the names of their material witnesses are disclosed, there is every possibility of the witnesses being tempted or manhandled so as to compel them not to depose against the plaintiff. Such a situation, in my view, has not arisen as observed by the Supreme Court in Transfer Petition No. 404 of 1987 as under : --
"As regards the allegations of intimidation and harassment, we have considered the matter carefully but we are not satisfied at this stage that there is sufficient ground for apprehension that the petitioners will not be able to conduct their defence effectively in the suit and, therefore, we decline to interfere in the matter. The circumstances of the case are such, however, that we grant leave to the petitioners to file a fresh petition for transfer of the suit in the event of further circumstances coming into existence justifying the grant of such relief."
If defendants 1 to 3 still apprehend danger to their witnesses, it is for them to disclose their names and addresses so that the Court will be in a position to give necessary direction for ensuring their safety.
10. For the reasons and subject to the observations made, 1 decline to exempt defendants to 3 from withholding the names of their witnesses. On the other hand, I direct them to submit a complete list of their witnesses within fifteen days hence as a last opportunity with freedom to move if any protection is required for them. In default, law will take its own course.