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2009 DIGILAW 410 (JK)

Jai Krishan Basotra v. Santosh Gupta

2009-08-24

HAKIM IMTIYAZ HUSSAIN, J.P.SINGH

body2009
H. Imtiyaz Hussain, J. C.REV. No. 136/2004 1. This Civil Revision is directed against the order of Sub-Registrar, Jammu dated 29th of May 2004 in a civil suit No. 41 of 2001 pending disposal before the said Court. By means of the impugned order, the Court has rejected an application filed by the petitioner-defendant for permission to file list of witnesses and to summon them for their examination as witnesses. 2. Issues in the case were framed on 06-06-2002. Evidence of the plaintiff was closed on 16-02-2004 and when the petitioner-defendant was called upon to produce evidence it was found that no list of witnesses has been filed on behalf of the defendant. The petitioner-defendant, therefore, applied to the Court for permission to file list of witnesses and for depositing their expenses. The plaintiff objection to it on the ground that the list of witnesses was required to be filed within fifteen days from the date of framing of issues, since the defendant did not file the list within this period he cannot be allowed to do so after the expiry of the said period. 3. The Court relying on Mehta Yog Rajs case 1997 KLJ-50 dismissed the application. 4. When the matter was taken up for consideration, Honble the Chief Justice, who heard the case, observed that the Court had rejected the prayer of the petitioner-defendant on the basis of a judgment of this Court in Mehta Yog Raj v. All J&K Labanan Sikh Centre Gurudwara, 1997 KLJ-50 wherein a Single Bench of this Court has held that the provisions of Order XVI, Rule 1 of the Code of Civil Procedure were mandatory in nature and no discretion is left with the Courts to extend the period fixed by the Court, to file the list of witnesses by the parties. Learned Chief Justice expressed his reservations in agreeing with the view taken by the learned Judge in the aforesaid case, as such referred the case to the Division Bench for an authoritative pronouncement. 5. During the pendency of the civil revision, this Court vide its order dated 7th of March 2006 permitted the petitioner-defendant to file the list of witnesses and examine his witnesses. Thus the grievance of the petitioner-defendant got rederessed, the case, however, was kept on Board only for an authoritative pronouncement on the legal issue raised by Honble the Chief Justice. C.REV. No. 176/2005 6. Thus the grievance of the petitioner-defendant got rederessed, the case, however, was kept on Board only for an authoritative pronouncement on the legal issue raised by Honble the Chief Justice. C.REV. No. 176/2005 6. When this petition came up for hearing before the Court, it was observed that the question involved in the petition was the same which is the subject matter of the revision petition no. 136 of 2004 titled Jai Krishan v. Santosh Kumari. The Court, therefore, directed the Registry to place the petition along with the said revision petition. 7. Since the issue involved in both the petitions is same, both the petitions are taken up together and disposed of by this order. 8. The point for consideration, before the Court is whether the word "shall" in Order XVI, Rule 1 of Code of Civil Procedure is mandatory or directory and whether the Court has powers to extend the time fixed for filing a list of witnesses by the party, in appropriate case. 9. We have considered the issue and have gone through the relevant case law on the subject. 10. In Mehta Yog Raj v. All J&K Labanan Sikh Centre Gurudwara, 1997-KLJ, 50 a Single Bench of this Court while considering the scope of Order XVI, observed that under rule 1 & 2 of the said Order list of witnesses is mandatory to be given within the time stipulated and no discretion is left with the Court to extend the period. Learned Judge in this behalf observed as under:- "Reading Rule 1 and 2 together, it becomes clear that the list of such witness is to be given to the Court within the period fixed by the Court, or within fifteen days from the date on which the issues were setelled, whom the party wants to be summoned by the Court. Rule 1 is titled as "List of witnesses and Summons to witnesses" by a bare perusal of Rule 1, it becomes clear that list of such witnesses is mandatory to be given whose attendance a party wants in Court through summons by the Court. Rule 2 makes it emphatically clear that a party who wants such summons to be issued must make an application. Rule 2 makes it emphatically clear that a party who wants such summons to be issued must make an application. Therefore, in so far as the witnesses for whom summons are needed a list is to be given within the time stipulated under Rule 1 and no discretion is left with the Courts to extend the period. (emphasis supplied) 11. Learned Single Judge while arriving at this conclusion relied upon a Judgment of the Apex Court in Mange Ram v. Brij Mohan and others, AIR 1983 SC 925. The Apex Court in the said Judgment observed as under:- "Rule 1A of Order XVI clearly brings to surface the two situations in which the two rules operate. 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 the 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." 12. It was in view of these observations of the Apex Court that the learned Single Judge has found that the word `shall in clause `the party shall present in the Court a list of witness whom they propose to call. . . . . . . . . . . . is mandatory in nature and if the party fails to file the list of witnesses within the stipulated time, the Court has got no powers to extend the time at the request of the party concerned. 13. Order XVI Rule 1 & 2 of the Code of Civil Procedure which is relevant for our purposes provides as under:- "1. List of witnesses and summons to witnesses. 13. Order XVI Rule 1 & 2 of the Code of Civil Procedure which is relevant for our purposes provides as under:- "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 Courts a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summons to such person for their attendance in Court. 2. Expenses of witness to be paid into Court on applying for summons. -- (1) The party applying for a summons shall, before the summons is granted and within a period to be fixed, pay into Court such a sum of money as appears to the Court to be sufficient to defray the traveling and other expenses of the person summoned in passing to and from the Court in which he is required to attend, and for one days attendance." 14. Perusal of the Rules would show that when the trial of a suit begins with the framing of the issues, the parties shall file in the Court a list of witnesses whom they propose to call, either to give evidence or to produce documents. Such a list shall be filed on or before such date as the Court may fix in this behalf. Such a date shall not be later than fifteen days after the date on which the issues were settled. The concerned party can also obtain summons to such person whom it proposes to call as witness, for his attendance in the Court. 15. The object of these provisions is to enable a party to seek assistance of the Court to call and examine a witness, The party has to formally apply for this purpose to the Court by filing a list of such witnesses. The power to fix the time for filing such list has been vested in the Courts. The Courts have to, while adjudicating upon the rights of the parties, act in a just and proper manner. The power to fix the time for filing such list has been vested in the Courts. The Courts have to, while adjudicating upon the rights of the parties, act in a just and proper manner. Since the object is to administer justice, if the Courts find that assistance of the Court is required for summoning and examining a witness of a party, whose evidence will help the Court to arrive at the proper conclusion , it will come to the assistance of such a party by allowing the prayer. In order to enable the Court to exercise a proper and effective control over the proceedings, the legislatures has made it mandatory for a party to state the purpose for which the witness is proposed to be summoned while applying to the Court for obtaining the summons for his attendance. A situation may arise where a party bonafidely requiring the assistance of Court in summoning a material witness, does not file a list of witnesses within the time stipulated under Rule 1 due to some reasonable cause. The question is whether such a party is precluded from filing such a list and the Court is powerless in such circumstances to extend the time. Keeping in view the purpose of these provisions, we find the Courts are possessed with the power to extend time where a genuine cause is shown by the party concerned for not filing the list within the time fixed by the Court. The word "shall" as used in the said clause is, in our view, only directory in nature and not mandatory. When the provisions are read as a whole, it would appear that it gives the powers to the Court to fix time for filing the list and this power would include the power to enlarge the time on sufficient cause. The Court can exercise discretion if the Court is satisfied that there was a sufficient cause for not filing the list within the stipulated time. 16. Such a construction would advance the purpose for which Rules 1 & 2 have been enacted. The Court can exercise discretion if the Court is satisfied that there was a sufficient cause for not filing the list within the stipulated time. 16. Such a construction would advance the purpose for which Rules 1 & 2 have been enacted. Such a view we take also in view of the provisions of Section 148 of the Code of Civil Procedure, which provides that where any period is fixed or granted by the Court for doing of any act prescribed or allowed by this Code, the Court may in its discretion, from time to time enlarge such period, even though the period originally fixed or granted may have expired. 17. In P.T.Rajan v. T.P.M Sahir, AIR 2003 SC-4603, it was held:- "A statute as is well-known must be read in the text and context thereof. Whether a statute is directory or mandatory would not be dependent on the user of the words "shall" or "may". Such a question must be posed and answered having regard to the purpose and object it seeks to achieve." 18. In this behalf reference may also be made to the observations of the Supreme Court in Ganesh Prasad v. Lakshmi Narayan, AIR 1985 SC-964 where their Lordships held in para 7 as under:- "Ordinarily the use of the word `shall prima facie indicates that the provision is imperative in character. However, by a catena of decisions, it is well established that the court while considering whether the mere use the word `shall would make the provision imperative, it would ascertain the intendment of the legislature and the consequences flowing from its own construction of the word `shall. If the use of the word `shall makes the provision imperative, the inevitable consequence that flows from it is that the court would be powerless to grant any relief even where the justice of the case so demands. If the word `shall is treated as mandatory, the net effect would be that even where the default in complying with the direction given by the court is technical, fortuitous, unintended or on account of circumstances beyond the control of the defaulter, yet the court would not be able to grant any relief or assistance to such a person. If the word `shall is treated as mandatory, the net effect would be that even where the default in complying with the direction given by the court is technical, fortuitous, unintended or on account of circumstances beyond the control of the defaulter, yet the court would not be able to grant any relief or assistance to such a person. Once a default is found to be of a very technical nature in complying with the earlier order, the court must have power to relieve against a drastic consequence all the more so if it is satisfied that threre was a formal or technical default in complying with its order. To illustrate, if the tenant while he was on the way to the court on the 15th day to deposit the rent for the just preceding month as directed by an order under Sec. 11 A, met with an accident on the road and could not reach the court before the court hours were over, should he be penalized by his defence being struck off. Even if the court is satisfied that he was on the way to the court to make the necessary deposit, that he had the requisite amount with him, and that he started in time to reach the court within the prescribed court hours and yet by circumstances beyond his control, he met with an accident, would the court be powerless to grant him relief. This illustration would suffice to disclose the intendment of the legislature that it never used the word `shall to make it so imperative as to render the court powerless." 19. In R.N. Jadi and Brothers & Ors v. Subhashchandra, AIR 2007 SC-2571, the Supreme Court was dealing with a case under Order VIII, Rule 1 CPC, which casts an obligation on the defendant to file the written statement within 30 days. The Court held:- "8. Order VIII, Rule 1 after the amendment casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provisions does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. The provisions does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Further, the nature of the provision contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Substituted Order VIII, Rule 1 intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried. 9. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice." The Court further observed:- "14. It is also to be noted that though the power of the Court under the proviso appended to Rule 1 of Order VIII is circumscribed by the words--"shall not be later than ninety days" but the consequences flowing from non-extension of time are not specifically provided though they may be read with necessary implication. Merely, because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form. " 20. The courts, when called upon to interpret the nature of provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form. " 20. A similar observation was made by a Full Bench of this Court in Paras Ram and etc., v. Sudershan Kumar Khanna and etc., AIR 1987, J&K 89, where the issue before the Court was whether word `shall occurring in S.12 (4), Jammu and Kashmir Houses and Shops Rent Control Act, 1966 is directory or mandatory and in default of payment of monthly rent by the tenant, the striking out of the defence is inevitable. The Court on consideration of the matter held as under:- "20. The word `shall occurring in S.12 (4) being directory is not intended to be defeated by a tenant at his sweet will. The tenant can surmount the rigour of expression `shall only if he makes out a case of sufficient cause which prevented him from depositing the rent within the time fixed by the Court. In that case the Court has discretion to enlarge the time in his favour and the Court will not strike out the defence of the erring tenant. The other question which needs to be considered in this case is as to whether the Court will be empowered in all cases to remove the rigour of provisions of S.12(4), Houses and Shops Rent Control Act in so far as it prescribes penalty for non compliance with its order in the matter of deposit of rent. If the tenant deliberately fails to comply with the orders of the Court and is not able to show sufficient cause for non-deposit of rent within the time fixed, the Court will be empowered to strike out the defence of such tenant and place him in the same position as if he had not defenced the claim of eviction. By holding that the word `shall is to be construed as directory and not mandatory, it only recognizes the powers of the Court to enlarge the time on sufficient cause and allow the Court to exercise discretion after assuming satisfaction that there was sufficient cause which had prevented the tenant from depositing the rent within the time fixed by the Court or by the Statute. A bona fide tenant who is not able to comply with the directions of the Court in the matter of deposit of rent for reasons beyond his control is not intended to be punished and in his case Court has the discretion to extend the time for deposit of rent and save him from facing the penal consequences for non-deposit of rent. Same is not true in so far as a tenant who has intentionally and deliberately, without any sufficient cause failed to deposit the rent within the time fixed by the Statute and the Court. In case of such a tenant Court may refuse to exercise the discretion for extension of time to comply with the order regarding deposit of the rent. Court certainly has the power to examine each case on its merits with a view to find out as to whether a tenant was prevented by sufficient cause from depositing the rent within the time fixed. After passing the order of deposit of rent under S.12(4) the Court does not become functus officio. It has the power to extend the time provided sufficient cause by a tenant is shown for non-deposit of rent within the time fixed. So each will depend on its own facts and circumstances." 21. Learned counsel for the petitioner has also referred to a recent Judgment of the Apex Court in Lalitha J. Rai v. Aithappa Rai, AIR 1995 SC 1984 where the Apex Court has laid down as under:- "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 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. 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 adducting the 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." (emphasis supplied) 22. Thus, the Apex Court too has permitted filing of list of witnesses after the time fixed where a sufficient cause is shown. The issue therefore, can be taken as settled by the Supreme Court. In view of this legal position, we find the view taken in Mehta Yog Rajs case is not the correct law. 23. In Mange Ram v. Brij Mohan and others, AIR 1983 SC 925 relied upon by the learned Single Judge, the Apex Court was dealing with the interpretation of Sub-rule 1-A of Rule 1 of Order XVI. It also dealt with the scope of Rule 1(3) of Order XVI and held that said sub-rule confers a wide 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 1(A). But the Court while dealing with the scope of Rule 1(A) of Order XVI observed that it is obligatory on the party to file the list of witnesses with gist of evidence of witness in the Court as directed by sub-rule 1 of the Rule 1 and make an application as provided by sub rule 2 of Rule 1. The Court no where held that the provisions were mandatory in nature as such the Court had no power to extend the time in any circumstances. Thus, with respect, we find that reliance placed by learned Single Judge on the said Judgment was not correct. The facts of the case were totally different so the principle laid down can not be applied to a case like the present case. Learned Judge has gone by the literal meaning of the word "shall" and has taken too technical a view without going to the substance of the provisions. The facts of the case were totally different so the principle laid down can not be applied to a case like the present case. Learned Judge has gone by the literal meaning of the word "shall" and has taken too technical a view without going to the substance of the provisions. Such a view, if allowed, is likely to cause miscarriage of justice. 24. In view of this discussion, we hold as under:- "Word `shall in clause "the party shall present in the Court a list of witness whom they propose to call..." occurring in Order XVI Rule 1 is directory in nature. The Courts can in suitable cases where sufficient cause is shown by the party, extend the time as fixed by the Court for production of witness by the party." The reference is replied accordingly.