Karnataka High Court
Rehman Hussain vs Althaf Hussain And Anr. on 2 December, 2003
Equivalent citations: AIR2004KANT172, ILR2004KAR239, 2004(2)KARLJ361, AIR 2004 KARNATAKA 172, 2004 AIR - KANT. H. C. R. 456, (2004) ILR (KANT) (1) 239, (2004) 2 CIVILCOURTC 197, (2004) 1 KANT LJ 361, (2004) 2 RECCIVR 325, (2004) 2 ICC 299, (2004) 2 KCCR 746
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
ORDER 16, RULE 1, 1A - Application filed under Rule 60(2) of KCRP seeking permission of the Court to file list of witnesses after 15 days from the date of settlement of issues whether maintainable notwithstanding the provisions of Order 16 Rule 1 -- Such application is maintainable and the same can be treated as the one filed under Sub-rule (3) read with Sub-rule (1) of Rule 1, Order 16 CPC. Held: If the provisions of Sub-rule (1) is read with the provisions of Sub-rule (3) conjointly, it can be seen that in a case where a party has not filed list of witnesses at all or where he has filed a list of witnesses but has not included names of all witnesses, his right to seek permission of the Court under Sub-rule (3) to call any witness, is not taken away. The words, "any witness" should be given natural and full meaning and such a course would also advance the cause of justice. The word 'any' in ordinary, literal parlance means 'each and every', in other words, without any exception. Sub-rule (3) in an unmistakable term provides that a party with the permission of the Court can call any witness and examine such witness in support of his case. The words other than those whose names appear in the list referred to in Sub-rule(1) occurring in Sub-rule (3) are meant only to highlight the obvious position that with regard to those witnesses whose names are already included in the list of witnesses filed under Sub-rule (1) of Rule 1, seeking permission of the Court to examine such witnesses will never arise or is unnecessary. That phrase does not in any way restrict or limit the power of the Court under Sub-rule (3) to permit any party to call any witness and examine him in support of his case, of course, only on showing sufficient cause as to why he has not included the name or names of such witness/witnesses in the list of witnesses already filed by him or why he could not file the list of witnesses at all within the stipulated time of 15 days after the date of settlement of issues. (B) KARNATAKA CIVIL RULES OF PRACTICE, 1967 - RULE 60(2) -- CIVIL PROCEDURE CODE, 1908 (CENTRAL ACT No. 5 OF 1908) - SECTION 113, ORDER 16, RULE 1, 1A -- Reference on the point whether application seeking permission of the Court to file list of witnesses after 15 days from the date of settlement of issues maintainable and whether Rule 60(2) KCRP is violative or ultra vires Order 16 Rule 1 CPC. Court held that such application can be entertained and maintainable and Rule 60(2) of KCRP is intra vires Order 16 Rule (1) of CPC. ORDER S.R. Nayak, J.
1. The Principal Civil Judge (Jr.Dn.) and JMFC., Mudigere, under Section 113 of Code of Civil Procedure (CPC) has referred the question whether I.A. No. 4 filed by the plaintiff in O.S.No.1 of 2002, under Rule 60(2) of the Karnataka Civil Rules of Practice, 1967, for short, 'KCRP', read with Section 151, CPC seeking permission of the Court to file list of witnesses after 15 days from the date of settlement of issues is maintainable and whether Rule 60(2) KCRP is violative of Order XVI, Rule 1, CPC, to this Court for opinion. On receipt of the reference, the office of this Court has registered it as CRC No. 4 of 2002 and as directed by the Hon'ble Chief Justice, the same is placed before this Bench for opinion.
2. The background facts may be noted first in brief and they are as follows:- The plaintiff has instituted a suit, O.S.No. 1 of 2002 in the Court below for permanent injunction restraining the defendants from interfering with the suit schedule property. The defendants having put in appearance have filed their written statement. The Court below framed the issues on 16.07.2002 and posted the case on 30.7.2002 for filing list of witnesses as envisaged under Order XVI, Rule 1, CPC. On 30.07.2002 on behalf of the plaintiff, I.A.No. 4 was filed under Rule 60(2) KCRP read with Section 151, CPC seeking permission of the Court to file list of witnesses on the next date of hearing. In the affidavit filed in support of the application, it is stated that the plaintiff could not attend to the Court on earlier occasions due to his ill health and, therefore, could not file list of witnesses within the stipulated time of 15 days from the date of settlement of issues. The said I.A.No. 4 was opposed by the defendants by filing a counter affidavit and it was contended by the defendants that Rule 60(2) of KCRP is ultra vires Order XVI, Rule 1, CPC and, therefore, the Court has no jurisdiction to extend the time beyond 15 days after the date of settlement of issues.
3. The Court below having considered the rival contentions put forth before it by the plaintiff and defendants and having thought that in terms of Order XVI, Rule 1 CPC, there is no scope for granting more time to file list of witnesses, has referred the questions noticed above for opinion of this Court under Section 113, CPC.
4. We have heard Sri M.V. Raghunatha Char, learned Counsel for the plaintiff and Sri Sanath Kumar Shetty, learned Counsel for the defendants. Smt.Sona Vakkund and Sri C.V. Nagesh, at our request, assisted the Court and we place on record our appreciation of their service.
5. Before proceeding to consider the questions referred to us for opinion, it is appropriate to notice the relevant statutory provisions which have bearing on the decision-making. Rules 1 and 1A of Order XVI, CPC read as follows:-
"(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 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 within five days of presenting the list of witnesses under sub-rule(1)).
(1A.) 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.)"
6. Sub-rules (1) and (2) of Rule 60 of the Karnataka Civil Rules of Practice, 1967 read as follows:
"60. Witness List.- (1) A party applying for summonses to witnesses shall file a list stating clearly, as far as is known to him, the name, full description and address of each witness, the class to which he belongs according to rules and the approximate distance of his residence from the Court.
(2) The list of witnesses shall be filed within the time specified by the Court or when no such time is specified, within 15 days from the time when the case is first posted for evidence"
Provided that the Court may, on application extend the time."
7. The present Rules (1) and (1-A), Order XVI, CPC, are substituted by Amendment Act 104 of 1976 with effect from 01-02-1977. The Objects and Reasons for amendment read-
"Under Order XVI, Rule 1, at any time after the suit is instituted, the parties may obtain on application to the Court, or to such other officer as may be appointed by the Court, summonses to persons whose attendance is required after to give evidence or to produce documents. There is some doubt as to whether, in view of the use of the words "may obtain", the Courts under an obligation to issue the summons irrespective of any other considerations. The rule is being substituted to provide that the application for the issue of summons should indicate the purpose for which the summons is being obtained. The substituted rule also lays down the procedure for the filing of a list of witnesses by the parties and provides that a person not mentioned in the list shall not be produced as a witness without the permission of the Court. (Statement of Objects and Reasons (Bill) - Gazette of India, Ext., dt. 8-4-1974, Pt.II, Section 2, P. 317.)"
8. When we look at the provisions of Sub-rule (1) of Rule 1, Order XVI, CPC, as substituted by Amendment Act No. 104 of 1976 with effect from 01.02.1977, in isolation, no doubt, it seems to mandate that a party shall file list of witnesses within 15 days after the date on which the issues are settled. But, if the provisions of Sub-rule (1) is read with the provisions of Sub-rule (3) conjointly, it can be seen that in a case where a party has not filed list of witnesses at all or where he has filed a list of witnesses but has not included names of all witnesses, his right to seek permission of the Court under sub-Rule (3) to call any witness, is not taken away. The words, "any witness" should be given natural and full meaning and such a course would also advance the cause of justice. The word 'any' in ordinary, literal parlance means 'each and every', in other words, without any exception.
9. In sub-Rule (3) the words 'any witness', are followed by the phrase 'other than those whose names appear in the list referred to in sub-rule (1)'. On the basis of the above phrase, an argument was advanced before us that permitting a party to call any witness is available to a party only if such party has already filed list of witnesses under sub-Rule (1) of Rule 1 and not otherwise. In other words, according to the learned Counsel for the defendants, if a party has not chosen to file list of witnesses under sub-Rule (1) of Rule 1 within the prescribed time, such party is not entitled to seek permission under sub-Rule (3) of Rule 1 to call any witness and examine him in support of his case. This contention is not acceptable to us for we do not find any rational or logical foundation to support the hypothesis. Sub-rule (3) in an unmistakable term provides that a party with the permission of the Court can call any witness and examine such witness in support of his case. The words 'other than those whose names appear in the list referred to in sub-Rule (1)' occurring in sub-Rule (3) are meant only to highlight the obvious position that with regard to those witnesses whose names are already included in the list of witnesses filed under sub-Rule (1) of Rule 1, seeking permission of the Court to examine such witnesses will never arise or is unnecessary. That phrase does not in any way restrict or limit the power of the Court under sub-Rule (3) to permit any party to call any witness and examine him in support of his case, of course, only on showing sufficient cause as to why he has not included the name or names of such witness/witnesses in the list of witnesses already filed by him or why he could not file the list of witnesses at all within the stipulated time of 15 days after the date of settlement of issues.
10. Be that as it may, there is no need for us to dilate further on the points of reference, because, in our considered opinion, the question referred to this Court could be answered in the light of the judgment of the Apex Court in the case of the LALITHA J. RAI v. AITHAPPA RAI, . In that case, the appellants therein who are the plaintiffs instituted the suit for declaration of title and for possession of plaint schedule property. On 03.08.1993, the plaintiff filed the application enclosing the list of witnesses to issue summons to them for adducing of evidence to prove her case. In the affidavit sworn in by the husband of the plaintiff, who held the power of attorney, it was stated that he was under bonafide mistaken impression that a list of witnesses was already filed, but, he noticed that mistake when he was getting ready, in consultation with the Counsel, to adduce evidence at the trial. So averring, the deponent stated that the failure to file the list of witness was not intentional, but bona fide. In the premise of the above facts, the plaintiff sought permission of the Court to file the list of witnesses under Order XVI, Rule 1. The Trial Court by its order dated 06.09.1993 dismissed the application holding that there is no proper explanation for the delay in filing the list of witnesses. On Revision, this Court declined to interfere with the order of the Trial Court. When the validity of the order of this Court was called in question before the Apex Court, the Apex Court while allowing the appeal and setting aside the orders of this Court and the Trial Court, observed thus:-
"2. Order 16 Rules 1 and 1(A) adumberate that the witnesses at the Trial Court are to be produced for examination by the parties by their filing the list, and omission thereof prohibits them to avail the assistance of the Court to secure their attendance to give evidence or to produce documents on their behalf. It is true that the legislature amended Order 16 Rule 1 and added rule 1(A) to see that the undue delay should not be caused in the trial of the suit by filing list of witnesses or the documents at belated stage. Thereby, it envisages that on or before the date fixed by the Court for settlement of issues and not later than 15 days after the date on which issues were settled, the parties are to file the list of such witnesses whom they propose to call either to give evidence or to produce documents and they are required to obtain summons to such witnesses for their attendance in the Court. On their failure to do the same, Rule 1(A) says that they may without assistance of the Court bring witnesses to give evidence or to produce documents. In other words, if they fail to obtain the summonses through Court for attendance of witnesses they are at liberty to have the witnesses brought without the assistance of the Court.
3. It would, thus, be seen that the legislature did not put a total prohibition on the party to produce the witnesses or the production of the documents for proof of the respective case. Nonetheless, when they seek the assistance of the Court, they are enjoined to give reasons as to why they have not filed the application within the time prescribed under Rule 1 of Order 16. It is seen that in the application it was stated by the husband of the appellant that they were under the bona fide impression that they have already filed the list of the witnesses along with the documents and that the mistake of non-filing the list was discovered when they were getting ready for the Trial. It is not in dispute that the trial is yet to begin. In these circumstances, we think that the Trial Court committed illegality in refusing to receive the list for summoning the witnesses for adducing of evidence by the plaintiff. The appeal is accordingly allowed. The orders of the Trial Court and the High Court are set aside. The list already furnished is a valid list. The Trial Court is directed to summon the witnesses for examination on behalf of the plaintiff. No costs. Appeal allowed."
11. We can also usefully refer to the judgment of the Supreme Court in the case of VIDHYADHAR v. MANKIKRAO AND ANR, In that case, the Apex Court while reviewing the adverse comment made by the Mumbai High Court with regard to the examination of defendant No. 2 as a witness without including his name in the list of witnesses and without making any application envisaged under sub-Rule(3) of Rule 1 considered the conjoint effect of sub-Rule 1 to 4 of Rule 1 and Rule 1A of Order XVI, CPC and summarized the legal position in paragraphs 30 and 31 thus:-
"30. These two Rules read together clearly indicate that it is open to a party to summon the witnesses to the Court or may, without applying for summons, bring the witnesses to give evidence or to produce documents. Sub-rule (3) of Rule 1 provides that although the name of a witness may not find place in the list of witnesses filed by a party in the Court, it may allow the party to produce a witness though he may not have been summoned through the Court. Rule 1A which was introduced by the Code of Civil Procedure (Amendment) Act, 1976 with effect from 1-2-1977 has placed the matter beyond doubt by providing in clear and specific terms that any party to the suit may bring any witness to give evidence or to produce documents. Since this Rule is subject to the provisions of Sub-rule (3) of Rule 1, all that can be contended is that before proceeding to examine any witness who might have been brought by a party for that purpose, the leave of the Court may be necessary but this by itself will not mean that Rule 1A was in derogation of sub-rule(3) of Rule 1. The whole position was explained by this Court in Mange Ram v. Brij Mohan, , in which it was held that Sub-rule (3) of Rule 1 and Rule 1A operate in two different areas and cater to two different situations. It was held (Para 10 of AIR):
"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".
31. In view of the above, even though the name of defendant No. 2 was not mentioned in the list of witnesses furnished by the plaintiff, he was properly examined as a witness and his testimony was not open to any criticism on the ground that he was produced as a witness without being summoned through the Court and without his name being mentioned in the list of witnesses."
12. The above two judgments of the Apex Court in unmistakable terms show that even in a case where a party has not filed list of witnesses within 15 days from the date of settlement of issues as envisaged under sub-Rule (1) of Rule 1, Order XVI, CPC, such party can make an application under sub-Rule (3) of Rule 1 for permission of the Court to summon any witness and examine him in support of his case.
13. We can also draw sustenance for our opinion from the judgment of the Supreme Court in MANGE RAM v. BRIJ MOHAN AND ORS., In which case, it was held that the Court cannot decline to examine a witness on the ground that his name does not appear in the list of witnesses.
14. In the present case, of course, the plaintiff has not filed the application under sub-Rule (3) of Rule 1, Order XVI, CPC, but, he has filed an application purported to be under Rule 60 (2) of KCRP read with Section 151, CPC. It is well settled that if a Court has jurisdiction to entertain an application in law, simply because the mover of the application has not stated correct provision of law or has stated wrong or incorrect provisions of law, that circumstance will not divest the power of the Court to entertain the application and pass appropriate order on merit. Therefore, the application already filed by the plaintiff could be regarded as the application filed under sub-Rule (3) of Rule 1, Order XVI, CPC. Since, we have held that even in a case where a party has not filed list of witnesses envisaged under sub-Rule (1) of Rule 1, order XVI, CPC, he can make an application under Sub-rule (3) read with sub-Rule (1) thereof, condemning Rule 60 (2) of KCRP as ultra vires Order XVI, Rule 1, CPC, would not arise. In other words, Rule 60 (2) of KCRP proviso is intra vires Order XVI Rule 1 (1) of CPC.
15. In conclusion, we answer the reference in the following terms:
1. I.A. No. 4 filed by the plaintiff on 30.07.2002 is maintainable and the same can be treated as the one filed under sub-Rule (3) read with sub-Rule (1) of Rule 1, Order XVI, CPC.
2.We declare that Rule 60 (2) of KCRP is intra vires Order XVI, Rule 1, CPC.
The Reference is answered accordingly.