Andhra HC (Pre-Telangana)
Addagatla Narendar vs Some Vijayalakshmi on 31 January, 2006
Equivalent citations: 2006(3)ALD94, 2006(3)ALT422
ORDER P.S. Narayana, J.
1. Heard Sri Krishna Reddy, learned Counsel representing the revision petitioner and Sri Hari Prasad, Counsel representing the respondent.
2. The revision petitioner filed the CRP questioning the order made in IA No. 2815 of 2002 in OS No. 347 of 1990 on the file of the II Additional Junior Civil Judge, Warangal. The defendant in the said suit moved the aforesaid application under Order XVI Rule 1(3) of the Code of Civil Procedure for summoning the witnesses, whose description had been furnished, to establish the execution of the document and also the aspect of possession. The said application was resisted and ultimately, the application was dismissed mainly on the ground that this Court while disposing of CRP No. 5779 of 2002 observed that if the petitioner filed list of witnesses only he will be entitled to examine further witnesses on his behalf, otherwise, he is not entitled to examine further witnesses in case IA No. 2526 of 2002 being allowed. This observation was made while making an order in relation to the recall of DW1 for cross-examination. It appears much water had flown subsequent thereto. Be that as it may, the original pleading was amended praying for the relief of declaration of title also and apart from this aspect of the matter in the affidavit filed support of the application, it was stated by the revision petitioner that he intends to examine three more witnesses; (1) P. Sambasiva Rao, Advocate-Notary, the person who attested the agreement of sale dated 12.12.1983 executed by the plaintiff in his favour, (2) S. Pratap Reddy, attesting witness on agreement of sale, (3) Srinivas, adjacent house owner. It was also specified that to prove the said agreement of sale and also to prove the aspect of possession relating to j the plaint schedule property, these witnesses ! may be essential and hence, the said persons to be summoned to give evidence. The said application was resisted and the same was dismissed and aggrieved by the same the present CRP is preferred.
3. In Kailasa Bhoomiah v. Kailasa Eshwaralingam and Ors. 1989 (1) ALT 487, it was held that the filing of list of witnesses within 15 days is not mandatory and the Court in appropriate cases can condone the delay and receive the list even after 15 days. In N. Balaraju v. G. Vidyadhar , while dealing with the aspect of summoning of witnesses in the absence of filing of list of witnesses it was held that it is permissible if the Court is satisfied with the reasons given by the party seeking such relief under Order XVI Rule 1(3) of the CPC. The reasons, which had been specified in the affidavit filed in support of the application, already had been referred to supra. It may also be pertinent to observe that other two CRPs preferred by the self same revision petitioner questioning the orders in relation to the amendment of the pleadings also had been disposed of today in CRP Nos. 2042 and 2372 of 2004.
4. Reliance also was placed on Mange Ram v. Brij Mohan and Ors. , M. Munaswami Naidu and Anr. v. Smt. K. Nagamani , B. Venkat Ram Reddy v. K. Srinivas and Ors. , National Insurance Company Limited, Calcutta and Ors. v. Susru Sea Foods , Ravi Bai and Ors. v. Thakur Ganesh Sing and Ors. 2003 (2) LS 115, V. Nirmala v. V. Subba Raju , Kosuru Kalinga Maharaju v. Kosuru Kaikamma and Ors. , Mohd. Jaleel v. Palavarapu Rama Murthy and Sain Das v. Narain Sing .
5. In Sri Aurobindo Ahsram Trust and Anr. v. Kamal Dora , it was held that a party who seeks for a prayer to the Court to issue summons to the witnesses must reveal to the Court the purpose for which the witness is proposed to be summoned and once such an application is filed, it is for the Court to use its discretion and to decide whether summons are to be issued to these witnesses and it is to be noted that the issue of summons is not automatic and in appropriate cases or in cases where objections are raised, the bona fides of the request may have to be looked into and appropriate orders to be passed.
6. In Preet Cold Storage and Ice Factory and Anr. v. United Commercial Bank, Sangol and Ors. , it was held that it is one of the cardinal principles of the rules of natural justice that full opportunity should be afforded to the parties to produce their evidence and state their case before the Court and the Court ought to exercise discretion in favour of production of evidence. No doubt where a party is using dilatory tactics and tries to stall the proceedings by seeking adjournment to produce witnesses whose evidence is not relevant, the Court is well within its power to refuse production of such evidence.
7. The Division Bench of the Madhya Pradesh High Court in Brij Mohangupta v. Premchand Jain 1993 MPLJ 183, while dealing with Order XVI Rule 1 of the CPC observed as hereunder:
On reading of Order 16 Rule 1, Civil Procedure Code, it is clear that in a suit, after the issues are settled, a party is bound to present in Court a list of witnesses whom he proposes to call either to give evidence or to produce documents, and obtain summonses to such persons for their attendance in Court. Such list must be filed 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. Under Sub-rule (2) of Rule 1 of Order 16 a party desirous of obtaining any summons for the attendance of any person, has to file an application in Court stating therein the purpose for which the witnesses is proposed to be summoned. Sub-rule (3) of Rule 1 confers a discretion on the Court to permit a party to summon through Court or otherwise any witness other than those whose names appear in the list submitted under Sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. Rule 1A of Order 16 enables a party to bring any witness to give evidence or to produce documents but this enabling provision is subject to the provision contained in Sub-rule (3) of Rule 1 of Order 16.
8. Unless statutory infraction is imperative, procedural technicalities not to defeat the substantial justice. Permitting let in of all admissible evidence is the general rule, rejecting thereof under specified circumstances to be an exception always. Liberal approach to lean in favour of doing substantial justice despite the procedural technicalities, may be highly essential in several of the cases lest the very justice delivery system will suffer in its working to the detriment of the litigant public.
9. In view of the same and also in the light of the facts specified supra, and the reasons, which had been furnished in the affidavit filed in support of the application, the dismissal of the application by the learned Judge definitely cannot be sustained. Accordingly, the impugned order is hereby set aside and the CRP is hereby allowed. No order as to costs.