Research › Search › Judgment

Himachal Pradesh High Court · body

2003 DIGILAW 375 (HP)

INDER SINGH v. RANGILA RAM RAO

2003-12-18

M.R.VERMA

body2003
JUDGMENT M.R. Verma, J.—This application under Section 151 of the Code of Civil Procedure (hereafter referred to as the Code) has been filed by the petitioner for condonation of delay in filing the list of witnesses in Election Petition No. 4 of 2003 within the period allowed by this Court and the period as specified under Order 16 Rule 1 of the Code. 2. Brief facts leading to the filing of the present application are that in the aforesaid Election Petition, which is pending disposal in this Court, issues were framed on 22.9.2003 and the petition was ordered to be listed for recording evidence of the petitioner on 5th and 6th November, 2003. It was also ordered that list of witnesses, process fee etc. be filed within two weeks and the petitioner would ensure presence of the witnesses on the dates fixed. The petitioner, however, failed to file the list of witnesses etc. as per the orders of the Court, hence, this application. 3. Case of the petitioner for condoning the delay in filing the list of witnesses, as made out in the application, is that he was out of station and could not be contacted by his counsel well in time which resulted in non-filing of the list of witnesses within the stipulated period as directed by this Court. The list was filed in the Registry on 14.10.2003 which was returned to the counsel for the petitioner with the objection that it has not been filed within the stipulated time. It is claimed that non-filing of the list of witnesses was neither intentional nor wilful but because of the aforesaid reason, therefore, it is prayed that the delay in filing the list of witnesses may be condoned in the interest of justice. 4. The application has been contested by respondent No. 1, who filed reply raising preliminary objection therein that Order 16 Rule 1 of the Code has provided only 15 days time for filing the list of witnesses and in the event of failure of a party to file the list within the said period it looses the right to file the list in view of the mandatory provisions of the Code, therefore, the present application is liable to be dismissed. On merits, the above stand has been reiterated and it is averred that the plea put forward by the petitioner is untenable and unacceptable in law. 5. On merits, the above stand has been reiterated and it is averred that the plea put forward by the petitioner is untenable and unacceptable in law. 5. I have heard the learned Counsel for the parties and have also gone through the relevant records. 6. It is not in dispute that issues in the case were framed on 22.9.2003 when the petitioner was directed to file list of witnesses and process fee etc. within two weeks which he failed to do. The relevant provisions of Rule 1 of Order XVI of the Code reads as follows: "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." It is evident on a bare reading of the aforesaid sub rule that parties are required to present in the Court list of witnesses whom they propose to call either to give evidence or produce the documents on or before such date as the Court may appoint but not later than 15 days after the date on which the issues are settled. Thus, a time limit has been fixed for presentation of the list of witnesses by the parties. The petitioner, admittedly, has not presented the list of witnesses within the time fixed by the Court or the rule (supra). It is also not in dispute that the Code applies to the trial of Election Petition. 7. It was contended by the learned Counsel for the petitioner that rules or procedures are meant to advance cause of justice and not to throttle it. There is nothing in the Code which prevents the Court from extending the time for or condoning the delay in filing the list of witnesses and if a reasonable cause is shown the Court may in the interest of justice condone the delay/extend the time to do the needful. To substantiate his contention, the learned Counsel for the petitioner has relied on Chuhi Ram and others v. Ram Kumar and another (Civil Appeal No. 6679 of 1999, decided by the Apex Court on 21.11.2002). 8. To substantiate his contention, the learned Counsel for the petitioner has relied on Chuhi Ram and others v. Ram Kumar and another (Civil Appeal No. 6679 of 1999, decided by the Apex Court on 21.11.2002). 8. On the other hand, the learned Counsel for the respondent contended that the time limit to file list of witnesses has been purposely fixed by the legislature by sub-Rule (1) of Rule 1 of Order 16 of the Code and obviously the purpose is to cut short the delays in the disposal of the cases and early disposal of the cases is also an object in consonance with the interest of justice, therefore, the delay in filing the list of witnesses cannot be condoned nor the time for filing the list can be extended on the basis of the flimsy grounds as averred in the application and the law even if harsh has to be applied as it is. 9. Be it stated at the very outset that rules or procedures are meant to advance the cause of justice, therefore, must be applied in an enabling manner when so required in the interest of justice. No doubt, the rule has provided 15 days time limit for filing the list of witnesses but if it is shown that the party was prevented from filing such list within the stipulated period for the reasons beyond its control and the lapse is not intentional, deliberate or mala fide the common sense, natural justice, equity, good conscious and interest of justice require that opportunity must be afforded to such party to do the needful so that the ends of justice are served. 10. In Ashok K. Goel v. Venu Bakshi (OMP No. 233 of 2003 in CS No. 39 of 1998 decided on 17.10.2003), this Court has to deal with a situation wherein a party has already availed permissible three opportunities to lead evidence but failed to do so and prayed for further adjournment whereas in view of the proviso? to sub-rule (1) of Rule 1 of Order 17 of the Code no adjournment shall be granted more than three times to the party. The reason for failure of the party in the said application to appear as a witness on the third opportunity was his ailment and admission in the hospital for treatment, therefore, this Court held as under: "9. The reason for failure of the party in the said application to appear as a witness on the third opportunity was his ailment and admission in the hospital for treatment, therefore, this Court held as under: "9. Now, the question arises whether in view of Proviso to Rule 1 of Order 17 of the Code can a person who has availed of three adjournments be permitted to have further adjournment for the same purpose in the same suit. The proviso limits the number of adjournments in a suit to three. However, rules of procedures are meant to enable doing justice, therefore, must be applied in an enabling manner where the ends of justice so require. A situation may arise when a party has the last opportunity to do some act for further prosecution of its case pending in the Court but on that day he is prevented by a cause beyond his control from doing the needful. In such a situation the question whether he should be debarred from doing such act though he could not do it in the circumstances beyond his control necessarily arises for determination. The common sense, natural justice, equity, good conscious and interest of justice require that when a party is prevented to do something because of the circumstances beyond its control, it must be afforded an opportunity to do the needful so that the ends of justice are served. It is for this reason that the Code preserves the inherent powers of the Court under Section 151 to pass appropriate orders in such eventualities." 11. Sub-rule (1) of Rule 1 of Order 16 of the Code also creates a bar in the matter of filing the list of witnesses similar to the one created by Order 17 Rule 1 of the Code in the matter of granting adjournment. Therefore, on the basis of the aforesaid decision what can be said is that if a party is prevented from filing the list of witnesses within the stipulated period because of the circumstances beyond its control and not with mala fide intention of causing delay in the disposal of the case or harassment to the opposite party, the Court has the power to condone the delay in filing the list of witnesses or extending the time for filing the list of witnesses. 12. 12. This view is fully supportable on the basis of the decision of the Honble Supreme Court in Chuhi Rams case (supra) wherein the Apex Court while dealing with a similar question held as under: "A short question pertaining to substantial justice is a focal point for our consideration in this appeal. The appellants herein moved this Court against an order of the High Court of Himachal Pradesh wherein a learned Single Judge dismissed an application for extension of time to file the list of witnesses under Order XVI Rule 1 Code of Civil Procedure. Obviously the list filed was barred by time and hence such an application. Order XVI provides summoning and attendance of witnesses and Rule 1(1) provides that 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, within a period of 15 days as admissible in terms of Rule 1(1) of Order XVI after the issues are settled. Admittedly, the list was not furnished and by reason whereof an application has been made under Section 5 of the Limitation Act which stands dismissed. In our view, the dismissal of the application has not only created prejudice but has affected the concept of justice. The learned Judge would be quite within his jurisdiction to impose any condition but refusal or rejection of such a prayer for extension without assigning any reason does not seem to be in consonance with the concept of law and justice. It is in this perspective that the order under challenge cannot be sustained and hence the appeal is allowed and order is set aside." 13. In the case in hand, the petitioner has specifically averred vide Para-2 of the application that he was out of station and could not be contacted by his counsel in time to enable filing the list of the witnesses within the stipulated period. These averments in the application are duly supported by affidavit of the petitioner. In reply to the aforesaid averments, the respondent in the corresponding para of his reply or elsewhere in the reply has not disputed this averment. These averments in the application are duly supported by affidavit of the petitioner. In reply to the aforesaid averments, the respondent in the corresponding para of his reply or elsewhere in the reply has not disputed this averment. Thus, immediately after the framing of the issues the petitioner, who was represented by a counsel in the Election Petition was not immediately available being out of station and could not be contacted by the counsel to ask him to name his witnesses so that the list could be filed. Thus, the lapse is not intentional, deliberate, dilatory or mala fide and keeping in view the ratio in the aforesaid judgments, I am of the view that in the facts and circumstances of the case, the delay in filing the list of witnesses by the petitioner deserves to be condoned and time to file list 6f witnesses deserves to be extended in the interest of justice but subject to cost of Rs. 500 payable by the petitioner for causing adjournments. 14. As a result, this application is allowed and the delay in filing the list of witnesses by the petitioner is condoned and the time to file such list is extended till 20th December, 2003.