JUDGMENT C.L. Soni, J. 1. Learned Advocates appearing for the parties agreed to finally dispose of this petition. Hence, Rule. Learned Advocate Mr. Baiju Joshi waives service of Rule for respondent No. 1 and learned Assistant Government Pleader Mr. Ronak Raval waives for respondent No. 2. In this petition filed under Art. 226/227 of the Constitution of India, the petitioner (defendant) has challenged the order dated 29-1-2013 passed by the Gujarat State Co-operative Tribunal ('the Tribunal' for short) in Misc. Application No. 23 of 2012 preferred by the petitioner seeking condonation of delay occurred in filing the revision application before the Tribunal against the order dated 18-9-2011 passed below application Exh. 112 in Lavad Suit No. 64 of 2000. 2. The case of the petitioner is that respondent No. 1 had instituted Lavad Suit No. 246 of 1986 for relief to admit respondent No. 1 as member of the petitioner-Society. The said suit was dismissed for want of prosecution but thereafter, it was restored and renumbered as Lavad Suit No. 64 of 2000. The petitioner has averred that respondent No. 1 had given her deposition on affidavit and was cross-examined by the Tribunal and she was also cross-examined by the petitioner-Society. But, thereafter, no witness was called nor even any list of witnesses was submitted by respondent No. 1, however on 19-4-2011, her husband named Dipakkumar Balvantrai Tamakuwala presented himself on his own as witness and submitted his deposition on affidavit in the proceedings of the suit which was taken on record and the petitioner-Society was called upon to cross-examine him. It is further case of the petitioner that in the cross-examination of the said witness, when he was asked whether he was called either by respondent No. 1 or by learned Board of Nominee by any summons, he stated that he presented himself as witness on his own and no summons was issued to him nor even he was asked by any one to become witness. The petitioner-Society, therefore, gave application at Exh. 112 to remove the affidavit of examination-in-chief of the said witness from the proceedings of the suit. The learned Board of Nominee however rejected the said application by order dated 18-9-2011 which was challenged before the Tribunal by filing revision application with an application for condonation of delay. The petitioner-Society, therefore, gave application at Exh. 112 to remove the affidavit of examination-in-chief of the said witness from the proceedings of the suit. The learned Board of Nominee however rejected the said application by order dated 18-9-2011 which was challenged before the Tribunal by filing revision application with an application for condonation of delay. The Tribunal rejected the said application by recording that there was no sufficient cause shown for condonation of delay and also decided the issue on merits and came to the conclusion that there was no illegality in the order passed by the Board of Nominee below application Exh. 112, which was not permissible. 3. The respondent No. 1 filed affidavit-in-reply opposing the petition. 4. I have heard learned Advocates for the parties. 5. Learned Advocate Mr. Dhirendra Mehta for the petitioner submitted that the Tribunal committed serious error in not condoning the delay of only three months. Mr. Mehta submitted that the Tribunal was not justified in going into the merits of the matter while deciding the application for condonation of delay. Mr. Mehta submitted that the Board of Nominee committed serious error in taking the affidavit of deposition of the witness who was never called by any party nor even summoned by the Court. Mr. Mehta submitted that even before tendering the affidavit of deposition-in-chief of such witness, no leave of the Court was obtained. Mr. Mehta submitted that in absence of leave of the Court, the witness was not entitled to tender his affidavit of deposition. Mr. Mehta submitted that the petitioner immediately raised objection against considering the deposition of the said witness in evidence and requested to remove such deposition as such deposition-in-chief of the said witness was not only in consonance with Order 16 of the Code of Civil Procedure but was without leave of the Court. Mr. Mehta submitted that even if the party is entitled to examine any person as witness without including such person in the list of witnesses, then also, leave of the Court is must, and therefore, the Tribunal committed grave irregularity in rejecting the application for condonation of delay preferred by the petitioner. Mr. Mr. Mehta submitted that even if the party is entitled to examine any person as witness without including such person in the list of witnesses, then also, leave of the Court is must, and therefore, the Tribunal committed grave irregularity in rejecting the application for condonation of delay preferred by the petitioner. Mr. Mehta has relied on the following judgments: "(1) In the case of Vidhyadhar v. Manikrao, reported in, 1999 (3) SCC 573 ; (2) In the case of Salem Advocate Bar Association, T.N. v. Union of India, reported in, 2003 (1) SCC 49 ; (3) In the case of Mange Ram v. Brij Mohan, reported in, 1988 (1) GLH 434; (4) Judgment dated 8-11-2011 passed in Special Civil Application No. 6382 of 2004." 6. Learned Advocate Mr. Baiju Joshi appearing for respondent No. 1 submitted that the deposition by affidavit submitted on the proceedings of the suit was of the husband of respondent No. 1. Mr. Joshi submitted that all throughout, the petitioner-Society has been attempting to delay the proceedings of the suit as the respondent No. 1 has been claiming as a member of the society and prayed to have the residential premises transferred in her name right from 1984. However, the petitioner-Society has successfully delayed the efforts made by respondent No. 1. Mr. Mehta submitted that after 2000 onwards, the petitioner-Society has caused many hurdles in the disposal of the suit and now also the only intention on the part of the petitioner-Society is to delay the suit proceedings. Mr. Joshi submitted that the Tribunal has found that the petitioner-Society failed to show sufficient cause for condonation of delay occurred in filing the revision application and additionally found that there was no illegality in taking the affidavit of deposition-in-chief of the husband of respondent No. 1 on the record of the suit. Mr. Joshi submitted that even after the order made by the Board of Nominee, nearly three years have passed and the petitioner-Society any how wants that the proceedings of the suit are further delayed, and therefore, it has continued the efforts to challenge the orders before the higher forum. Mr. Mr. Joshi submitted that even after the order made by the Board of Nominee, nearly three years have passed and the petitioner-Society any how wants that the proceedings of the suit are further delayed, and therefore, it has continued the efforts to challenge the orders before the higher forum. Mr. Joshi submitted that not only Order 16 of the Code of Civil Procedure permits any of the party to examine witness not named in the list but even under the provisions of the Gujarat Co-operative Societies Act, 1961 ('the Act' for short) and the Gujarat Co-operative Societies Rules, 1965 ('the Rules' for short), since the Board of Nominee is to decide the suit according to justice, equity and good conscience, it can very well permit examination of any witness who appears in the proceedings of the suit. Mr. Joshi thus urged that no illegality was committed by the Board of Nominee in rejecting the application at Exh. 112, and therefore, the Tribunal has rightly rejected the application for condonation of delay. Mr. Joshi submitted that in fact the decisions relied on by learned Advocate Mr. Mehta would lend support to the view taken by the Board of Nominee and the Tribunal. He thus urged to dismiss the petition. 7. Learned Assistant Government Pleader Mr. Ronak Raval has appeared for respondent No. 2-Tribunal and has assisted the Court by drawing the attention of the Court to the provisions of Sec. 99 of the Act and Rule 41 of the Rules. 8. Having heard learned Advocates for the parties, it appears that the Lavad Suit No. 248 of 1986, renumbered as No. 64 of 2000, is for seeking declaration that the petitioner-Society is under obligation to induct the respondent No. 1 as member of the society and to declare that the resolutions passed by the society of disposing of/transfer of bungalow No. 11 is illegal and without authority. The respondent No. 1 also asked for permanent injunction restraining the petitioner-Society from transferring or in any way disposing of the said bungalow and from acting upon the resolution passed by the society for the said purpose. 9. As pointed out by the petitioner in the suit, some interim application for amendment was made which was also subject-matter of some other proceedings, and thereafter, examination in chief and cross-examination of respondent No. 1 was over. 9. As pointed out by the petitioner in the suit, some interim application for amendment was made which was also subject-matter of some other proceedings, and thereafter, examination in chief and cross-examination of respondent No. 1 was over. It was thereafter affidavit of chief examination dated 19-4-2011 of Dipakkumar Balvantrai Tamakuwala, the husband of the respondent No. 1 was tendered in the proceedings of the suit. It appears that on 1-8-2011, the suit was then kept for cross-examination of the said witness Dipakkumar Balvantrai Tamakuwala. On 1-8-2011, in response to the question to the said witness as to whether who called him as witness, he stated that he came as witness on his own and that he did not receive any summons from the Court to give evidence as witness. He further stated that he was not called by anybody to come as witness. 10. At this stage, learned Advocate for the petitioner-Society gave application Exh. 112 for removing the deposition given on affidavit by the above-said witness from the record of the suit. 11. Learned Board of Nominee after hearing the learned Advocates for the parties on the above-said application, came to the conclusion that if without summons any witness appears before the Court, such witness can be treated as independent witness as per the decision of the Madras High Court reported in 2011 AIR CC 1896. The learned Board of Nominee also recorded that since the lavad suit is to be decided in accordance with justice, equity and good conscience, the deposition of the witness cannot be removed from the proceeding of the suit on the ground that he appeared without summons of the Court. 12. It appears that though the Tribunal was dealing with the application for condonation of delay, however, while recording that the petitioner had not made out any case for condonation of delay, it also dealt with the merits of the matter. From the order made by the Tribunal, it appears that the Tribunal has not rejected the application for condonation of delay only on the ground that the petitioner had no case on merits, and therefore, the delay was not required to be condoned. The Tribunal has in clear terms found that the petitioner had not given sufficient cause for condonation of delay, and therefore, the delay was not required to be condoned. The Tribunal has in clear terms found that the petitioner had not given sufficient cause for condonation of delay, and therefore, the delay was not required to be condoned. It is a different matter whether the Tribunal was justified in not condoning the delay of three months occurred in filing the revision application, however it is not that the Tribunal had not dealt with the prayer for condonation of delay independently. After recording that the delay was not required to be condoned, the Tribunal then additionally examined whether the Board of Nominee was justified in rejecting the application at Exh. 112 filed by the petitioner. In the context of Order 16, Rule 1(3) of the Code of Civil Procedure, and relying on the principles of law laid down by the Hon'ble Supreme Court in the case of Vidhyadhar (supra), the Tribunal recorded that there was no reason for the petitioner-Society to make application for removal of the deposition given on affidavit by the above-said witness. 13. Thus, the Tribunal since considered the matter on merits, this Court deemed it proper to decide the issue involved on merits and called upon the learned Advocates for the parties to address the Court on the question of law involved in the matter. 14. The main thrust of the arguments of learned Advocate Mr. Mehta is that even if it is permissible for any party to call any person as witness without naming such person in the list of witnesses or without help of the Court, such person cannot be examined as witness without the leave of the Court. 15. In respect of the suits to be decided under the provisions of the Code of Civil Procedure, 1908, summoning and attendance of the witnesses are governed by the provisions of Order 16, Rule 1 and 1A thereof read 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 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 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." As per the provisions of Order 16, Rule 1(3) read with Rule 1A, a party may bring a witness even without applying for Court summons even though such witness is not named in the list of witnesses submitted by such party. Therefore, in respect of the suits to be decided under the provisions of the C.P. Code, the Legislature intended that a party who has missed to name the witness in his list may be provided with an opportunity to bring such party. But, the question whether even if such party may bring a witness, not named in the list of witnesses given by him, can such party examine such witness without leave of the Court, was examined by the Hon'ble Supreme Court in the case of Vidhyadhar (supra). In the said case, Hon'ble Supreme Court has held and observed in Paras 28 to 32 as under: "28. In order to prove his case, the plaintiff had examined defendant No. 2 as a witness who admitted to have executed the sale deed in favour of the plaintiff and further admitted to have received the entire amount of sale consideration. The High Court has adversely commented upon me production of defendant No. 2 as a witness by saying as under: "Next witness examined by the plaintiff was defendant No. 2. The High Court has adversely commented upon me production of defendant No. 2 as a witness by saying as under: "Next witness examined by the plaintiff was defendant No. 2. The plaintiff, while examining this witness, has not incorporated the name of this witness in me list of witness nor any application was made for the examination of defendant No. 2. The willingness of me defendant No. 2 was also not placed on record, to appear as a witness for the plaintiff." This is wholly an erroneous view. 29. Summoning and attendance of witnesses has been provided for in Order 16 of the Code of Civil Procedure. Order 16, Rule 1 which speaks of list of witnesses and summons to witnesses 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 man 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 summons 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 me 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), summons referred to in this rule may be obtained by parties on an application to the Court or to such officer as may be appointed by the Court in this behalf." 30. Rule 1A which allows production of witnesses without summons provides as under: "1A. Production of witnesses without summons: Subject to the provisions of sub-rule (3) of Rule 1, any party to me suit may, without applying for summons under Rule 1, bring any witness to give evidence or to produce documents." 31. Rule 1A which allows production of witnesses without summons provides as under: "1A. Production of witnesses without summons: Subject to the provisions of sub-rule (3) of Rule 1, any party to me suit may, without applying for summons under Rule 1, bring any witness to give evidence or to produce documents." 31. These two Rules read together clearly indicate that it is open to a party to summon the witnesses to the Court or may, without applying for summons, bring the witnesses to give evidence or to produce documents. Sub-rule (3) of Rule 1 provides that although the name of a witness may not find place in the list of witnesses filed by a party in the Court, it may allow the party to produce a witness though he may not have been summoned through the Court. Rule 1A which was introduced by the Code of Civil Procedure (Amendment) Act, 1976 with effect from 1-2-1977 has placed the matter beyond doubt by providing in clear and specific terms that any party to the suit may bring any witness to give evidence or to produce documents. Since this Rule is subject to the provisions of sub-rule (3) of Rule 1, all that can be contended is that before proceeding to examine any witness who might have been brought by a party for that purpose, the leave of the Court may be necessary but this by itself will not mean that Rule 1A was in derogation of sub-rule (3) of Rule 1. The whole position was explained by this Court in Mange Ram v. Brij Mohan, AIR 1983 SC 925 : 1983 (4) SCC 36 : 1983 (3) SCR 525 , in which it was held that sub-rule (3) of Rule 1 and Rule 1A operate in two different areas and cater to two different situations. It was held (Para 10 of AIR): "There is no inner contradiction between sub-rule (1) of Rule 1 and Rule 1Aof Order 16. It was held (Para 10 of AIR): "There is no inner contradiction between sub-rule (1) of Rule 1 and Rule 1Aof Order 16. Sub-rule (3) of Rule 1 of Order 16 confers a wider 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 1A and in such a situation the party of necessity has to seek the assistance of the Court under sub-rule (3) to procure the presence of the witness and the Court may if it is satisfied that the party has sufficient cause for the omission to mention the name of such witness in the list filed under sub-rule (1) of Rule 1, the Court may still extend its assistance for procuring the presence of such a witness by issuing a summons through the Court or otherwise which ordinarily the Court would not extend for procuring the attendance of a witness whose name is not shown in the list. Therefore, sub-rule (3) of Rule 1 and Rule 1A operate in two different areas and cater to two different situations." 32. In view of the above, even though the name of defendant No. 2 was not mentioned in the list of witnesses furnished by the plaintiff, he was properly examined as a witness and his testimony was not open to any criticism on the ground that he was produced as a witness without being summoned through the Court and without his name being mentioned in the list of witnesses." Relying on the above-said decision of the Hon'ble Supreme Court, the Tribunal observed in its impugned order that any party can bring witness without summons of the Court and such witness can give his evidence. The Tribunal further observed that even otherwise, the order made by the Board of Nominee rejecting the application Exh. 112 was in consonance with the provisions of the Act and the Rules. 16. Section 99 of the Act which falls under Chapter IX provides for power to summons and enforce attendance of witness and to compel the production of documents by the same means and as far as possible in the same manner as provided in the case of a Civil Court by the Code of Civil Procedure. Section 99 reads as under: "99. Section 99 reads as under: "99. Procedure for settlement of disputes and power of Registrar, his nominee or Board of Nominees: (1) The Registrar, or his nominee or Board of Nominees, hearing a dispute under Sec. 98 shall hear the dispute in the manner prescribed, and shall have power to summon and enforce attendance of witnesses including the parties interested or any of mem and to compel them to give evidence, and to compel the production of documents by the same means and as far as possible in the same manner as provided in the case of a Civil Court by the Code of Civil Procedure, 1908. (2) Except where a dispute involves complicated question of law or fact, no legal practitioner in his capacity as a legal practitioner or as a person holding a power of attorney shall be permitted to appear on behalf of any party at the hearing of a dispute. (3)(a) If the Registrar or his nominee or Board of Nominees is satisfied that a person, whether he be a member of the society or not, has acquired any interest in the property of a person who is a party to a dispute, he may order that the person who has acquired the interest in the property may join as a party to the dispute; and any decision that may be passed on the reference by the Registrar or his Nominee or Board of Nominees shall be binding on the party so joined, in the same manner as if he were an original party to the dispute. (b) Where a dispute has been instituted, in me name of the wrong person or where all the defendants have been not included, the Registrar or his nominee or Board of Nominees may, at any stage of the hearing of the dispute if satisfied that the mistake was bona fide, order any other person to be substituted or added as a plaintiff or a defendant, upon such terms as he thinks just. (c) The Registrar, his Nominee or Board of Nominees may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Registrar, his nominee or Board of Nominees, as the case may be, to be just, order that the name of any party improperly joined whether as plaintiff or defendant be struck out, and that the name of any person who ought to have been joined whether as plaintiff or defendant or whose presence before the Registrar, his nominee or Board of Nominees, as the case may be, may be necessary in order to enable the Registrar, his nominee or Board of Nominees effectually and completely to adjudicate upon and settle all the questions involved in the dispute, be added. (d) Any person who is a party to the dispute and entitled to more than one relief in respect of the same cause of action may claim all or any of such relief; but if he omits to claim all such relief, he shall not forward a claim for any relief so omitted, except with the leave of the Registrar, his nominee or Board of Nominees." Rule 41 of the Rules provides for procedure of hearing and decision. Rule 41 of the Rules reads as under: "41. Procedure of hearing and decision: (1) The adjudicating authority shall record a brief note in English or in Gujarati language of the evidence of the parties and witnesses who attend and upon the evidence so recorded and upon consideration of any documentary evidence produced by either side, a decision shall be given in accordance with justice, equity and good conscience and it shall be reduced to writing. Such a decision shall be given to the parties. (2) If any of the parties duly summoned or informed to attend, fails to appear, the dispute may be decided in accordance with the relevant provisions of Order 9 of the Code of Civil Procedure, 1908. (3) Where the adjudicating authority is a Board of Nominees consisting of the Board of Nominee of two nominees and if their opinions differ regarding the decision, the adjudicating authority shall return the case to the Registrar with its notes of dissent and thereupon the dispute may be decided by the Registrar himself or the case may be forwarded to a fresh board of three nominees for decision. (4) The decision shall be communicated to the parties by: (a) pronouncement of the award; or (b) registered post to any party which may be absent on the date if due notice of the decision is not given to such party, (c) Ordinary post with U.P.C. to any party which may be absent on the date if due notice of the date of decision is given to such party. (5) After the decision of the case, if the adjudicating authority is a nominee or the Board of Nominee it shall return all the case papers to the Registrar." 17. Sub-section (2) of Sec. 99 of the Act does not permit as a matter of course legal practitioner to appear for the party except where dispute involves complicated questions of law and fact at the hearing of the dispute. 18. From Sec. 99 of the Act as also from the provisions of Rule 41 of the Rules, it appears that the Board of Nominee is to decide the dispute on the evidence of the parties and witnesses who attend the proceedings and give evidence and upon documentary evidence produced by either side in accordance with justice, equity and good conscience. Therefore, for deciding a dispute in accordance with justice, equity and good conscience, if the Board of Nominee takes on record the deposition (examination in chief) of any witness though not cited by the party to render decision on the dispute, the Board of Nominee could be said to have acted within its jurisdiction. When the Board of Nominee is required to decide the dispute in accordance with justice, equity and good conscience and for such purpose permits witness not included in the list of witnesses by the party to give his evidence on affidavit, no separate leave to examine the witness is required. It is required to be noted that the witness who was permitted to tender his deposition on affidavit, was none other than the husband of the plaintiff. He was not a strange person who came forward to give evidence. 19. In above view of the matter, the case of Vidhyadhar (supra), would be of no help to the petitioner. 20. It is required to be noted that the witness who was permitted to tender his deposition on affidavit, was none other than the husband of the plaintiff. He was not a strange person who came forward to give evidence. 19. In above view of the matter, the case of Vidhyadhar (supra), would be of no help to the petitioner. 20. In the judgment dated 8-11-2011 passed in Special Civil Application No. 6382 of 2004, the Court was considering the question as to whether the party who though had knowledge about the evidence, still not produced such evidence on account of his negligence, could be allowed to produce or lead additional evidence within the ambit and scope of Rule 17A of Order 18 of the Code. The Court found that the Court below did not commit any error in rejecting the application for producing evidence which was not produced by the party and rejected the petition. Such is not the issue in the present case. Therefore, the said judgment relied on by learned Advocate Mr. Mehta will have no application. 21. In the case of Mange Ram (supra), the Court held that advance filing of the list of witnesses is necessary to avoid the delay but if on the date fixed for recording of the evidence, the party is able to keep his witness present despite the fact that names of witnesses are not shown in the list, the party would be entitled to examine his witness and to produce documents through the witnesses who are called to produce the documents under Rule 1A. Thus, without naming the witness in the list, it is open for the party to examine the witnesses but as held by the Hon'ble Supreme Court with leave of the Court. 22. In the case of Salem Advocate Bar Association (supra), the Hon'ble Supreme Court has held that though examination-in-chief of the witness produced without the summons must be in the form of an affidavit, however in the case of summoned witnesses, principle incorporated in the Order 18, Rule 4(1) can be waived. It would be in the Court's discretion to direct some witnesses to file affidavit in appropriate cases or require him to be present in the Court for recording of the evidence. It would be in the Court's discretion to direct some witnesses to file affidavit in appropriate cases or require him to be present in the Court for recording of the evidence. In the present case, the issue is altogether different, and therefore, the said decision will have no application to the facts of the case. As stated above, applying the principles of Order 16, Rule 1(3) read with Rule 1A of the Code, when witness not cited could be examined as witness with the leave of the Court, then considering the provision of Sec. 99 of the Act read with Rule 41 of the Rules, the Board of Nominee could not be said to have committed any error in rejecting the application of the petitioner at Exh. 112 and the Tribunal has therefore, rightly confirmed the order made by the Board of Nominee. Such order of the Tribunal does not call for any interference by this Court in exercise of its power under Art. 226/227 of the Constitution of India. The petition is therefore, dismissed. Rule is discharged.