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2009 DIGILAW 583 (GAU)

Sunil Kumar Surana v. Gajaraj Surana

2009-08-19

I.A.ANSARI

body2009
ORDER I.A. Ansari, J. 1. The petitioner herein is the defendant in Title Suit No. 492/2007, which is presently pending in the court of learned Munsiff No. 3, Kamrup, Guwahati. On 24.2.2009, the defendant, in the suit, filed evidence, on affidavit, of two witnesses as DW1 and DW2. Along with the evidence, on affidavit, so filed, the defendant also filed a petition praying for, inter, alia, allowing him to adduce evidence of two more witnesses, namely, Smt. Ratni Devi Surana and Sri Ram Gopal Kejriwal. The relevant portion of the petitioner's said petition is reproduced below: 1. That the above mentioned case is fixed today for evidence-on-affidavit of the defendant. 2. That the evidence-on-affidavit of DW1 and DW2 has been filed today. 3. That the defendant wanted to adduce further evidence of two witnesses, whose names were not included in the list of the witnesses, namely (i) Smt. Ratni Devi Surana, and (ii) Sri R.G. Kejriwal. Moreover, the defendant wanted to delete/remove the names from the list of witnesses as they are not willing to give their evidence. They are (i) Basant Surana, (ii) Nirmal Churaria and (iii) Sri Kamal Baid. 4. That under the facts as stated above the defendant may be allowed to give further evidence-on-affidavit in support of his case. 5. That this petition is filed bona fide and in the interest of justice. Under the aforesaid facts and circumstances, your Defendant I humbly prays that your honour would be pleased to allow the defendant to adduce further evidence-on-affidavit of the above mentioned DWs and/or pass any such order(s) as your honour may deem fit and proper. 2. On the above petition, filed by the defendant, learned court below passed an order, on 24.2.2009, which reads as under: Both parties are represented. DW1 and DW2 has filed evidence-on-affidavit, along with ext. documents (photo copy). Learned Counsel for the defendant has filed a petition vide No. 398/2009, praying for another date for filing further evidence on affidavit of DW1. Prayer is allowed for ends of justice. Fix 24.3.2009 for further evidence of DW1. 3. However, on the date fixed for further evidence, i.e., 24.3.2009, the learned court below passed yet another order, which reads as under: Both parties are represented. Vide petition No. 632/2009 prayer is made for fixing another date for filing evidence on affidavit of DW3, Smt. Ratni Devi Surana. Fix 24.3.2009 for further evidence of DW1. 3. However, on the date fixed for further evidence, i.e., 24.3.2009, the learned court below passed yet another order, which reads as under: Both parties are represented. Vide petition No. 632/2009 prayer is made for fixing another date for filing evidence on affidavit of DW3, Smt. Ratni Devi Surana. Petition is allowed for ends of justice. On perusal of the case record it appears from order dated 24.2.2009 that the defendant filed petition No. 398/2009 and on that petition order ought to have been passed for filing objection against said petition. But inadvertently the petition was allowed. Hence order dated 24.2.2009 is modified. Defendant has filed petition No. 633/2009 under Order XVI, Rule 7A of Code of Civil Procedure. Fixed 21.4.2009 for filing objection against the petitions Nos. 398/2009 and 633/2009. 4. From a careful reading of the petition, which the petitioner had filed, and the orders passed thereon, what becomes clear is that the petitioner had sought to examine two witnesses, whose names had not appeared in the list of witnesses, which the petitioner, as defendant, had filed in the suit. On the petition, so filed, though the learned trial court had initially passed an order, on 24.2.2009, allowing the defendant's prayer to file the evidence of the two witnesses aforementioned on affidavit, the learned trial court, having realized the fact that it ought not to have allowed the defendant's petition without giving liberty of showing cause and hearing to the plaintiff, passed the subsequent order, dated 24.3.2009, permitting the plaintiff-opposite party to file objection. 5. The question, therefore, is this: Having permitted the defendant to examine as witnesses two persons, whose names had not appeared in the list of witnesses, which the defendant had filed, whether the learned trial court could have recalled its earlier order and given an opportunity to the plaintiff to have his say in the matter? It may be noted that what the learned trial court has done is, broadly speaking, reviewed its own order passed on 24.2.2009. 6. The power of review, under the scheme of the Code of Civil Procedure ('the Code'), can be exercised only on the application of a person, who was either a party to the order or is a person affected by the order. 6. The power of review, under the scheme of the Code of Civil Procedure ('the Code'), can be exercised only on the application of a person, who was either a party to the order or is a person affected by the order. There is no specific provision, under the Code, permitting a civil court to review, on its own motion, an order passed by it earlier. What is, however, of utmost importance to note, in this regard, is that there is no specific provision barring or prohibiting a court, which functions under the Code, to review an order passed by it in exercise of its inherent powers as contained in Section 151. 7. With regard to the above, it may be noted that the Code stands divided, broadly speaking, into two parts. While the main body of the Code, which consists of Sections, creates jurisdiction for the civil courts, the Rules framed, under various orders, indicate the procedure for exercise of such jurisdiction. In other words, the rules framed under various orders of the Code lay down the procedure for exercise of the powers conferred on such courts. Taking note of this prominent feature of the Code, observed the Supreme Court, in Varred Jacob v. Sosamma Gretevarghese and Ors. (2004) 6 SCC 378, thus, "The main feature of the Code is its division into two parts. The main body of the Code consists of sections which create jurisdiction while the rules indicate the manner in which the jurisdiction has to be exercised." 8. It is pertinent to note that in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal AIR 1962 SC 527 , S.C. Saha, J (as his Lordship, then, was), took the view that civil courts had jurisdiction to grant temporary injunction only under Order XXXIX, Rules 1 and 2'and' if, in a given case, an injunction cannot be granted, under Order XXXIX, Rules 1 and 2, such an injunction cannot be granted by resorting to the inherent jurisdiction of the court. The relevant observations, made in this regard, in Manohar Lal Chopra (supra), read as under: 36. ...but I am unable to hold that civil courts generally have inherent jurisdiction in cases not covered by Rules 1 and 2 of Order 39, Civil Procedure Code to issue temporary injunctions restraining parties to the proceedings before them from doing certain acts. The relevant observations, made in this regard, in Manohar Lal Chopra (supra), read as under: 36. ...but I am unable to hold that civil courts generally have inherent jurisdiction in cases not covered by Rules 1 and 2 of Order 39, Civil Procedure Code to issue temporary injunctions restraining parties to the proceedings before them from doing certain acts. The powers of courts, other that the Chartered High Courts, in the exercise of their ordinary original civil jurisdiction to issue temporary injunctions are defined by the terms of Section 94(1)(c) and Order 39, civil procedure Code. A temporary injunction may issue if it is so prescribed by rules in the Code. The provisions relating to the issue of temporary injunctions are to be found in Order 39, Rules 1and 2: a temporary injunction may be issued only in those cashes which come strictly within those rules, and normally the civil courts have no power to issue injunctions by transgressing the limits, prescribed by the rules. .... The Code of civil procedure is, undoubtedly, not exhaustive: it does not jay down rules for guidance in respect of all situations nor does it seek to provide rules for decision of all conceivable cases, which may arise. The civil courts are authorised to pass such orders as may be necessary for the ends of justice, or to prevent abuse of the process of court, but where an express provision is made to meet a particular situation the Code must be observed, and departure therefrom is not permissible. As observed in Maqbid Ahmed v. Onkar Pratab LR 62 LA 80, "It is impossible to hold that in a matter, which is governed by an Act, which, in some limited respects, gives the court a statutory discretion, there can be implied in court, outside the limits of the Act, a general discretion to dispense with the provisions of the Act." Inherent jurisdiction of the court to make order ex debito justitiae is, undoubtedly, affirmed by Section 151 of the Code, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. 37. * * * 9. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. 37. * * * 9. Disagreeing with the lone dissenting voice of Shah, J, the majority, in Manohar Lal (supra), speaking through R. Dayal, J. observed and held thus, "On behalf of the appellant, two main questions have been raised for consideration. The first is that the court could not exercise its inherent powers when there were specific provisions in the Code of Civil Procedure for the issue of interim injunctions, they being Section 94 and Order XXXIX.... On the first question it is argued for the appellant that the provisions of Clause (c) of Section 94, Code of civil procedure make it clear that interim injunctions can be issued only if a provisions for their issue is made under the rules, as they provide that a court may, if it is so prescribed, grant temporary injunctions in order to prevent the ends of justice from being defeated, that the word 'prescribed', according to Section 2, means 'prescribed by rules' and that Rules 1 and 2 of Order XXXIX lay down certain circumstances in which a temporary injunction may be issued. There is difference of opinion between the High Courts on this point. One view is that a court cannot issue an order of temporary injunction if the circumstances do not fall within the provisions of Order XXXIX of the Code: Varadacharlu v. Narmisha Charlu AIR 1926 Mad. 258 , Govindarajulu v. Imperial Bank of India AIR 1932 Mad. 180 , Karuppayya v. Ponnuswami AIR 1933 Mad. 500 (2), Murugesa Mudali v. Angamuthu Mudali AIR 1938 Mad. 190 , and Subramanian v. Seetarama AIR 1949 Mad. 104. The other view is that a court can issue an interim injunction under circumstances which are not covered by Order XXXIX of the Code, if the court is of opinion that the interest of justice require the issue of such interim injunction: Dhaneshwar Nath v. Ghanshyam Dhar AIR 1940 All. 185, Firm Bichchha Ram v. Firm Baldeo Sahai AIR 1940 All. 241, Bhagat Singh v. Jagbir Sawhney AIR 1941 Cal. 670 and Chinese Tannery Owners Association v. Makhan Lal AIR 1952 Cal. 560 . 185, Firm Bichchha Ram v. Firm Baldeo Sahai AIR 1940 All. 241, Bhagat Singh v. Jagbir Sawhney AIR 1941 Cal. 670 and Chinese Tannery Owners Association v. Makhan Lal AIR 1952 Cal. 560 . We are of opinion that the latter view is correct and that the courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order XXXIX, Code of civil procedure. There is no such expression in Section 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order XXXIX or by any rules made under the Code. It is well settled that the provisions of the Code are hot exhaustive for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression 'if it is so prescribed' is only this that when the rules prescribe the circumstances in which the temporary injunction can be issued, ordinarily the court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of Section 94 were not there in the Code, the court could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. No party has a right to insist on the court's exercising that jurisdiction and the court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. It is in the incidence of the exercise of the power of the court to issue temporary injunction that the provisions of Section 94of the Code have their effect and not in taking away the right of the court to exercise its inherent power. There is nothing in Order XXXIX, Rules 1 and 2, which provide specifically that a temporary injunction is hot to be issue in cases which are riot mentioned in those rules. The rules only provide that in circumstances mentioned in them the court may grant a temporary injunction. Further, the provisions of Section 151 of the Code make it clear that the inherent powers are not controlled by the provisions of the Code. The rules only provide that in circumstances mentioned in them the court may grant a temporary injunction. Further, the provisions of Section 151 of the Code make it clear that the inherent powers are not controlled by the provisions of the Code. Section 151 reads: Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of the justice or to prevented abuse of the process of the court. A similar question about the powers of the court to issue a commission in the exercise of its power under Section 151 of the Code in circumstances not covered by Section 75 and Order XXVI, arose in Padam Sen v. The State of Uttar Pradesh (1961) 1 SCR 884 and this Court held that the court can issue a commission in such circumstances. It observed at page 887, thus: The inherent powers of the court are in addition to the powers specifically conferred on the court by the Code. They are complementary to those powers and therefore it must be held that the court is free to exercise them for the purpose mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. These observations clearly mean that the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in Section 151 itself. But those powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intentions of the Legislature. This restriction, for practical purposes, on the exercise of these powers is not because these powers are controlled by the provisions of the Code but because it should be presumed that the procedure specifically provided by the Legislature for orders in certain circumstances is dictated by the interests of justices. 10. This restriction, for practical purposes, on the exercise of these powers is not because these powers are controlled by the provisions of the Code but because it should be presumed that the procedure specifically provided by the Legislature for orders in certain circumstances is dictated by the interests of justices. 10. From a careful reading of what have been observed and held by the majority in Manohar Lal (supra), it becomes transparent that courts have inherent jurisdiction to issue temporary injunction in the circumstances, which are not covered by the provisions of Order XXXIX, for, there is no such expression in Section 94(c), which completely prohibits the issue of temporary injunction in the circumstances not covered by Order XXXIX, and rules framed thereunder or in the circumstances in which Order XXXIX and rules framed thereunder cannot be resorted to. 11. Noticing the above aspects of the inherent power of the courts of civil jurisdiction, particularly, in the field of granting of temporary injunction, the majority, speaking through V.N. Khare, CJ, in Vareed Jacob (supra) held and observed, "In the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hirala AIR 1962 SC 527 , it has been held that the effect of the expression "if so prescribed" in Section 94 CPC is to prescribe the circumstances in which courts can exercise or grant a particular relief and ordinarily, the court is not to use its inherent power to make the necessary orders in the interest of justice, but to see whether the circumstances of the case come within the prescribed rule. Therefore, in case, where the plaintiff seeks temporary injunction, courts have to ascertain whether the facts of the case fall under Order 39. That it is in the incidence of exercise of power of the court to issue temporary injunction that Section 94 has a role to play and that Section 94, however, does not take away the right of the court to exercise its inherent power. In the same judgment, Section 151, CPC is also analysed. The Apex Court in the same judgment has held that inherent power has not been conferred upon the court by Section 151, CPC. It is a power inherent in the court by virtue of its duty to do justice between the parties before it. In the same judgment, Section 151, CPC is also analysed. The Apex Court in the same judgment has held that inherent power has not been conferred upon the court by Section 151, CPC. It is a power inherent in the court by virtue of its duty to do justice between the parties before it. That Section 151merely recognizes the existence of the inherent power of the court, therefore, even if in a given case circumstances do not fall within Order 39, CPC, the courts have inherent jurisdiction to issue temporary injunction if the court is of the opinion that interest of justice requires issue of such interim injunction. In the case of Ram Chand and Sons Sugar Mills (P.) Ltd. v. Kanhayalal Bhargava AIR 1966 SC 2899, it has been held by this Court that the inherent power of the court under Section 151, CPC is in addition to and complimentary to the powers expressly conferred under CPC, but that power will not be exercised in conflict with any of the powers expressly or by implication conferred by other provisions of CPC. If there is express provision covering a particular topic, then Section 151, CPC cannot be applied. Therefore, Section 151, CPC recognizes inherent power of the court by virtue of its duty to do justice and which inherent power is in addition to and complementary to powers conferred under CPC, expressly or by implication. In the cases of Jagjit Singh Khanna v. Dr. Rakhal Das Mullick AIR 1988 Cal. 95 , it has been held that a temporary injunction may be granted under Section 94(C) only if a case satisfies Order 39 Rules 1 and Rule 2. It is not correct to say that the court has two powers, one to grant temporary injunction under Section 94(c) and the other under Order 39 Rules 1 and Rule 2. That Section 94(c), CPC shows that the court may grant a temporary injunction thereunder, only if it is so prescribed by Rule 1 and Rule 2 of Order 39. The court can also grant temporary induction in exercise of its inherent powers under Section 151, but in that case, it does not grant temporary injunction under any of the powers conferred by CPC, but under powers inherent in the constitution of the court, which is saved by Section 151, CPC." 12. The court can also grant temporary induction in exercise of its inherent powers under Section 151, but in that case, it does not grant temporary injunction under any of the powers conferred by CPC, but under powers inherent in the constitution of the court, which is saved by Section 151, CPC." 12. From what have been held in Vareed Jacob (supra), it clearly follows that when the court finds, in a given case, that Section 94(c) cannot be applied, but granting of temporary injunction is necessary for ends of justice or to prevent abuse of the process of the court, the power to grant temporary injunction can be exercised by the court in exercise of its inherent jurisdiction under Section 151. No wonder, therefore, that in Vareed Jacob (supra), clarifying the position of law as to when temporary injunction can be granted even when Section 94 is inapplicable, the court observed:- "The above discussion shows that the source of power of the court to grant interim relief is under Section 94. However, exercise of that power can only be done if the circumstances of the case fall under the rules. Therefore when a matter comes before the court, the court has to examine the facts of each case and ascertain whether the ingredients of Section 94 read with the rules in an order are satisfied and accordingly grant an appropriate relief. It is only in cases where circumstances do not fall under any of the rules prescribed that the court can involve its inherent power under Section 151, CPC. Accordingly, the courts have to grant relief of attachment before judgment, if the circumstances fall under Order 38, CPC. Similarly, courts unit grant temporary injunction if the case satisfies Order 39. So depending on the circumstances falling in the prescribed rules, the power of the court to grant specified relief would vary. Therefore, each set of rules prescribed are distinct and different from the other and therefore, one cannot equate rules of temporary injunction with rules of attachment before judgment although all are broadly termed as interlocutory orders." 13. So depending on the circumstances falling in the prescribed rules, the power of the court to grant specified relief would vary. Therefore, each set of rules prescribed are distinct and different from the other and therefore, one cannot equate rules of temporary injunction with rules of attachment before judgment although all are broadly termed as interlocutory orders." 13. From the observations made and the law laid down, in Manohar Lal (supra), and Vareed Jacob (supra), what logically follows, and becomes clear, is that though Section 114 and Order XXXXVII provides for exercise of power of review by the court, which has passed an order, only on an application made by a party to the order or affected by the order, the fact remains that no court shall pass any order, which may adversely affect a party without giving an opportunity of showing cause and hearing to the party, which is likely to be so affected. 14. If an order has been passed by a court without hearing a party, it is within the power of the court to review such an order and give an opportunity to the party, which is likely to be affected by such an order, to have his say in the matter and, then, pass appropriate order. There is no provision in the Code specifically prohibiting a court from reviewing its own order on its own motion. When there is no bar created by the Code, it is open to a civil court, in an appropriate case, to take resort to its inherent powers, for, the inherent powers are in addition to the powers specifically conferred on the court by the Code. The inherent power is really complementary to the power, which the court already has. When exercise of the power is not in any way in conflict with what has been provided in the Code or against the intention of the Legislature, exercise of inherent power cannot be barred, for, the inherent powers are not controlled by any other provisions of the Code. 15. When exercise of the power is not in any way in conflict with what has been provided in the Code or against the intention of the Legislature, exercise of inherent power cannot be barred, for, the inherent powers are not controlled by any other provisions of the Code. 15. Considering, therefore, the fact that on the petition filed by the defendant, on 24.2.2003, seeking to adduce evidence of two persons, whose names had not been mentioned in the list of witnesses filed by the defendant, the learned trial court had earlier allowed the petition without even giving an opportunity to the plaintiff to have his say, it was, in such circumstances, undoubtedly, within the powers of the learned trial court, to review its earlier directions, which it had passed on 24.2.2003. Considered in this light, it becomes clear that the order, dated 24.3.2003, whereby the learned trial court reviewed its earlier order, dated 24.2.2003, and allowed the plaintiff an opportunity to have his say, in the matter, was permissible in law and such a power is traceable to Section 151. 16. What is, now, necessary to note is that, having received the objection of the plaintiff to the petition, filed by the defendant seeking to examine two more witnesses, whose names had not been mentioned in the list of witness, the learned court below, finally, passed an order, on 21.4.2009, which reads as under: Both parties are represented. Plaintiff filed objection against petition No. 398/2009. Petition No. 633/2009 dated 24.3.2009 will be considered after disposal of petition No. 398/2009. Fixed 2.5.2009 for hearing of petition No. 398/2009. 17. Thus, by order, dated 21.4.2009, the learned court below fixed the defendant's petition seeking to examine said two witnesses for hearing. This order, as already discussed above, is an order, which was within the ambits of the court's inherent power. 18. On hearing the Learned Counsel for the parties, on the said petition filed by the defendant, learned court below passed an order, on 16.5.2009, rejecting the defendant's, petition seeking to examine the said two unlisted witnesses and fixed, 15.6.2009, for cross-examination of the defendant's earlier listed witnesses. Aggrieved by the order, dated 16.5.2009, the defendant has, now, approached this Court with the help of the present application made under Article 227 of the Constitution of India. 19. Heard Mr. P.C. Dey, Learned Counsel for the defendant-petitioner, and Mr. Aggrieved by the order, dated 16.5.2009, the defendant has, now, approached this Court with the help of the present application made under Article 227 of the Constitution of India. 19. Heard Mr. P.C. Dey, Learned Counsel for the defendant-petitioner, and Mr. O.P. Bhati, Learned Counsel, appearing on behalf of the plaintiff-opposite party. 20. For the purpose of effective disposal of this revision petition, it is necessary that the provisions of Order XVI of the Code, which the defendant-petitioner relies upon, in support of his case, in this revision, be taken into account and the same aref therefore, reproduced below: Order XVI 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 me 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. 21. 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. 21. On a careful reading of the provisions, contained under Order XVI, particularly, Sub-rule (3) of Rule 1 thereof, what becomes clear is that the court has the power to permit, inter alia, to call a person, as a witness, even if the name of such a person was not mentioned in the list of the witnesses, which the party had earlier submitted in terms of the provisions of Sub-rule (1) of Rule 1of Order XVI. This power cannot, however, be exercised in a routine manner inasmuch as the Legislature has made it clear that if a person's name has not been mentioned in the list of witnesses, the party, which seeks to call such a person, as witness, must assign sufficient cause for the omission to mention the name of the person in his list of witnesses. Ordinarily, therefore, the person, whose name does not appear in the list of witnesses, which has been filed in terms of Sub-rule (1) of Rule 1 of Order XVI, cannot be allowed to be examined unless the court is satisfied that there was sufficient cause for omission to mention, in the list of witnesses, the name of the person, who is, subsequently, sought to be called and examined as witness. 22. Referring to Rule 1A of Order XVI, Mr. Dey, Learned Counsel for the defendant-petitioner, has submitted that a party has been given the right to examine any witness, in a suit, to give evidence or to produce documents and that, for the purpose of giving such evidence or producing documents, application for issuance of summons may riot be made. 22. Referring to Rule 1A of Order XVI, Mr. Dey, Learned Counsel for the defendant-petitioner, has submitted that a party has been given the right to examine any witness, in a suit, to give evidence or to produce documents and that, for the purpose of giving such evidence or producing documents, application for issuance of summons may riot be made. True it is that a party to a suit may, without applying for issuance of summons, under Rule 1A, Order XVI, bring a witness or produce documents; but, what is imperative to note, in this regard, is that the provisions, contained in Order XVI, Rule 1A, are subject to the provisions of Sub-rule (3) of Rule 1 of Order XVI, meaning thereby, that a party to a suit can, without applying for summons, under Rule 1A of Order XVI, bring any witness to give evidence or produce 'documents provided that such witness' name appears in the list of witnesses, which the party had already filed. It would, therefore, be negating the provisions of Sub-rules (1), (2), (3) and (4) of Rule 1 of Order XVI if, notwithstanding the fact that a person's name has not been mentioned in the list of witnesses (filed by the party to a suit), such a party is allowed to take recourse to Rule 1A of Order XVI and examine the witness. Rule 1A would come into play only when a person's name appears in the list of witnesses already filed in terms of Sub-rule (1) of Rule 1 or if the court, on sufficient cause having been shown by the party for the omission to mention the name of such a person, as a witness, in the list of witnesses, permitted such a person to be examined, as a witness, in exercise of its powers under Sub-rule (1) of Rule 3 of Order XVI. 23. In the present case, it was, therefore, imperative that the defendant, while seeking to call two persons, whose name had not been mentioned in the list of witnesses, assigned sufficient cause for the omission to mention the names of the said two persons in the list of witnesses. 23. In the present case, it was, therefore, imperative that the defendant, while seeking to call two persons, whose name had not been mentioned in the list of witnesses, assigned sufficient cause for the omission to mention the names of the said two persons in the list of witnesses. A careful perusal of the petition, which had been filed by the petitioner, on 24.2.2009, shows that the petitioner had merely stated that he wanted to adduce evidence of two more witnesses, namely, Smt. Ratni Devi Surana, and Sri Ram Gopal Kejriwal, but he did not assign any reason whatsoever as to why the names of these two persons had not been mentioned in the list of witnesses, which the petitioner had, as defendant, filed. In the absence of any reason having been assigned for seeking to get Smt. Ratni Devi Surana and Sri Ram Gopal Kejriwal called, and examined, as witnesses, learned court below could not have but rejected the defendant's prayer seeking to get the said two persons called as witnesses. Situated thus, this Court finds no infirmity, legal or factual, in the order, dated 16.5.2009, which stands impugned in this revision petition. 24. Because of what have been discussed and pointed out above, this revision is not admitted and the same shall accordingly stand dismissed. 25. In order to ensure expeditious disposal of the suit, the parties to the proceedings are hereby directed to appear in the learned court below, on 1.9.2009, for further orders. 26. However, before parting with this revision petition, I may mention that Mr. Dey, Learned Counsel for the defendant-petitioner, submits that the defendant-petitioner may be allowed to file a petition afresh, in the learned court below, seeking to examine the said two persons, as witnesses, by assigning reasons for the omission to mention their names in the list of witnesses, which the petitioner, as defendant, had filed in the suit. Considering this aspect of the submission made, on behalf of the defendant-petitioner, it is, in the interest of justice, hereby directed that if any such petition, as contended by Mr. Dey, is filed by the defendant-petitioner, the learned court below shall consider and dispose of the same in accordance with law. 27. With the above observations and directions, this revision petition shall stand disposed of. 28. No costs.