Andhra HC (Pre-Telangana)
Nankani Kishan vs M. Shankar Narayana And Anr. on 13 December, 2001
Equivalent citations: 2002(2)ALD63
ORDER V.V.S. Rao, J.
1. The petitioner is the plaintiff in OS No.39 of 1989 on the file of the Court of Subordinate Judge, Khammam. He filed a suit for recovery of an amount of Rs. 34,400/- based on a promissory note allegedly executed by first respondent. According to the petitioner, the first respondent obtained a loan of Rs. 20,000/-from the second respondent on 5-4-1986. He did not pay the amount as agreed and on 15-3-1989 the second respondent endorsed suit promissory note in favour of the plaintiff under Ex. A2 for a sum of Rs. 30,000/- having received the said amount. The petitioner examined himself as PW1 and one of the attesting witnesses as PW2.
2. First respondent, promissor opposed the suit claim. It appears that second respondent who endorsed the suit promissory note in favour of the petitioner remained ex parte. Therefore, after closure of evidence by both parties, the petitioner filed an application to summon second respondent as witness on behalf of the plaintiff. Another IA was also filed for reopening the suit. The latter IA., being IA No. 549 of 1997 was dismissed by the trial Court on the ground that the petitioner did not utilise the opportunity to examine all his witnesses when the trial was going on and as the petitioner's suit is pending for more than eight years the suit cannot be reopened.
3. In this civil revision petition the learned Counsel for the petitioner Sri P. Vinod Kumar submits that the order of the trial Court suffers from grave error which requires interference by this Court. Learned Counsel for the first respondent Sri P. Visweswara Rao, submits that the application filed by the petitioner for reopening the suit and summoning the second respondent is belated one. He also submits that as required under Order XVI, Rule 1 of Code of Civil Procedure, 1908 (CPC, for brevity) parties to the suit have to submit the list of witnesses to the Court and in the absence of such list, the petitioner cannot be allowed to seek reopening of the suit and also examine witnesses. The learned Counsel also relied on the judgment of Rajasthan High Court in Bakhtawar Khan v. Noor Mohammed, AIR 1986 Raj. 167.
4. The petitioner's claim is that second respondent has endorsed suit in his favour after receiving consideration of Rs. 30,000/-. He is a material witness to speak about the truth or otherwise of the plaint allegations, especially having regard to the fact that the defence of first respondent is a total denial of execution of promissory note as well as the suit claim. In such a case, it is always open to the trial Court to permit the petitioner as plaintiff to summon any material witness including the original promissee who endorsed the sum in favour of the plaintiff. Order XVI, Rule 1 of CPC deals with list of witnesses and summons witnesses. Sub-rule (1) of Rule 1 of Order XVI of CPC requires the parties to present to the Court the list of witnesses on or before such date not later than fifteen days after the date on which the issues are settled and Sub-rule (2) enables a party to apply to the Court to issue summons to a person who is to be examined as a witness. Order XVI, Rule 1(3) of CPC enables the Court to permit a party to the suit to summon any witness whether or not the name of such witness appears in the list referred to in Sub-rule (1) of Rule 1 of Order XVI of CPC provided sufficient cause for omission to mention the name is shown. Sub-rule (3) of Rule 1 of Order XVI of CPC reads as under:
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.
5. In the opinion of this Court ample I discretion is vested in the Court to permit a party to summon a witness whose name does not appear in the list to be submitted within fifteen days after settlement of' the issues as per Sub-rule (1) of Rule 1 of Order XVI of CPC. Further, the submission of list of witnesses under Order XVI, Rule 1(1) cannot be considered to be mandatory though the word "shall" is used in Sub-rule (1). It is well settled that in the absence of any penal consequences, for noncompliance with a rule, the provision must be deemed to be directory and not mandatory. Further, there is no provision in CPC that the case of the plaintiff or the defendant can be thrown out by trial Court on a mere ground that list of witnesses as required under Order XVI, Rule 1(1) is not submitted to the Court within fifteen days after settlement of issues. This position may be compared with the procedure contained in Order IX of CPC. Order IX of CPC contains provisions enabling the Court to set dependant ex parte or to dismiss the suit for default on the happening of certain events contained therein. For instance, absence of the plaintiff when the suit is called or absence of the defendant when the suit is called after receiving summons. Such is not the case insofar as Order XVI, Rule 1 of CPC is concerned.
6. In Bakhtawar Khan's case (supra) the facts are these. The application was filed by the defendants for appointing advocate-Commissioner to examine a witness, who was aged 73 years. The application was rejected on the ground that the name of the witness was not mentioned in the list of witnesses submitted by the party concerned. In the revision before the High Court of Rajasthan, the same ground was pressed. The High Court found error in the order of the trial Court and observed as under:
In these circumstances it cannot be conceived that a commission cannot be issued for examining a witness under Order XXVI, Rule 1 CPC, merely because the list of witnesses has not been filed by the party concerned, hi these circumstances, I am clearly of the opinion that the learned Magistrate was entirely wrong in refusing to issue a commission for the examination of Shri Narsinghdass and he acted illegally or at least with the material irregularity in exercise of his jurisdiction in dismissing the application for issuing commission.
7. The view of the Rajasthan High Court supports the view taken by this Court above.
8. - In the result, the civil revision petition is allowed. However, as the petitioner has not placed any material before this Court that he was diligent in prosecuting his case the petitioner should be burdened with costs. Accordingly, the petitioner shall pay an amount of Rs. 750/- (rupees seven hundred fifty) to Sri P. Visweswara Rao within one week from today. IA Nos.549 and 550 of 1997 on the file of the Court below stands allowed. The Court below will issue summons to N. Gopala Krishna, second respondent herein, and proceed with the suit. The suit is pending since 1989. Hence, this Court directs the learned Subordinate Judge, Khammam to dispose of the suit within three months from the date of receipt of a copy of this order. Both the learned Counsel, assure the Court that they will co-operate with the Court below in early disposal of the case.