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2015 DIGILAW 594 (ORI)

Eastern Media Limited v. Madhusudan Padhi

2015-10-16

AKSHAYA KUMAR RATH

body2015
JUDGMENT Akshaya Kumar Rath, J. 1. Assailing the order dated 25.4.2007 passed by the learned Civil Judge (Senior Division), Khurda in C.S. No. 148 of 2002, the instant petition has been filed under Article 227 of the Constitution of India. By the said order, learned trial court rejected the application of the defendants to examine the witnesses in support of their case. 2. Opposite party as plaintiff filed a suit for defamation and damage to the tune of Rs. 10,100/- impleading the present petitioners as defendants in the court of learned Civil Judge (Senior Division), Khurda, which is registered as C.S. No. 148 of 2002. Pursuant to issuance of summons, the defendants entered appearance and filed written statement. After closure of evidence of the plaintiff, the defendants examined their witnesses. On 20.2.2007, the defendants filed a petition stating therein the list of witnesses to be examined. It is stated that the names of the witnesses have been inadvertently left out and unless they are examined, defendants will suffer irreparable loss and injury. The plaintiff filed objection to the same. By order dated 25.4.2007, learned trial court rejected the application holding, inter alia, that the defendants have not explained the reason for which they did not disclose and add the names of the witnesses. They have not filed any document to show that the proposed additional witnesses have direct knowledge as to the facts and circumstances and their examination in the court is very much essential for deciding the issues. Ample opportunities have been given to the defendants to examine as many as seven witnesses on their behalf even though the plaintiff has examined only one witness. Defendants failed to satisfy the court that after the exercise of due diligence, any evidence was not within their knowledge or could not be produced by them at the time when they were leading their evidence in court. They have also failed to give the reasons as to why permission could be accorded to them to call the additional seven witnesses other than those whose names appear in the first list of witnesses. In absence of sufficient cause for the omission to mention the names of the seven witnesses in the earlier list, there is no justification to allow the petition filed by the defendants, which would delay the proceeding and cause prejudice to the plaintiff. 3. Heard Mr. In absence of sufficient cause for the omission to mention the names of the seven witnesses in the earlier list, there is no justification to allow the petition filed by the defendants, which would delay the proceeding and cause prejudice to the plaintiff. 3. Heard Mr. S.P. Sarangi, learned counsel for the petitioners and Mr. S.C. Dash on behalf of Mr. L. Bhuyan, learned counsel for the opposite party. 4. Order 16 Rule 1 CPC speaks of list of witnesses and summons to witnesses. The same is quoted hereunder; "ORDER - XVI SUMMONING AND ATTENANCE OF WITNESSES 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." 5. Rule 1-A of Order 16 CPC provides production of witnesses without summons. The same is quoted hereunder; "1-A 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." 6. Both the rules were the subject-matter of interpretation in Mange Ram v. Brij Mohan and others, (1983) 4 SCC 36 . The apex court in paragraphs 8, 9 and 10 held as follows: "8. Sub-rule (1) of Rule 1 of order XVI casts an obligation on every party to a proceeding to present a list of witnesses whom it proposes to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in court. Sub-rule (2) requires that the parties seeking the assistance of the court for procuring the attendance of a witness must make an application stating therein the purpose for which the witness is proposed to be summoned. Sub-rule (3) confers a discretion on the court to permit a party to summon through court or otherwise any witness other than those whose names appear in the list submitted in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. Sub-rule (3) confers a discretion on the court to permit a party to summon through court or otherwise any witness other than those whose names appear in the list submitted in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. Rule 1-A in its amended form in force since 1977 enables a party to bring any witness to give evidence or to produce documents but this enabling provision is subject to the provision contained in sub-rule (3) of Rule 1 of order XVI.... 9. If the requirements of these provisions are conjointly read and properly analysed, it clearly transpires that the obligation to supply the list as well as the gist of the evidence of each witness whose name is entered in the list has to be carried out in respect of those witnesses for procuring whose attendance the party needs the assistance of the court. When a summons is issued by the court for procuring the presence of a witness, it has certain consequences in law. If the summons is served and the person served fails to comply with the same, certain consequences in law ensue as provided in Rule 10 of Order XVI. The consequence is that where the witness summoned either to give evidence or to produce documents fails to attend or to produce the documents in compliance with such summons, the court on being satisfied of the service as provided therein and is further satisfied that the person has without lawful excuse failed to honour the summons, the court may issue a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein; and a copy of such proclamation shall be affixed in the manner therein provided. Simultaneously, the court may, in its discretion, issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the attachment of his property for such amount as it thinks fit. Simultaneously, the court may, in its discretion, issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the attachment of his property for such amount as it thinks fit. Even if thereafter the witness fails to appear, the court may impose upon him such fine not exceeding five hundred rupees as it thinks fit, having regard to his condition in life and all the circumstances of the case, and may order his property, or any part, thereof, to be attached and sold as provided in Rule 12 of Order XVI. In view of this legal consequence ensuing from the issuance of a summons by the court and failure to comply with the same, the scheme of Rules 1, 1-A of Order XVI and Rule 22 of the Rules framed by the High Court clearly envisaged filing of a list only in respect of witnesses whom the parties desire to examine and procure presence with the assistance of the court. There, however, remains an area where if the party to a proceeding does not desire the assistance of the court for procuring the presence of a witness, obviously the party can produce such witness on the date of hearing and the court cannot decline to examine the witness unless the court proposes to act under the proviso to sub-section (1) of Section 87 of the 1951 Act' which enables the court for reasons to be recorded in writing, to refuse to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings. It, therefore, unquestionably transpires that the obligation to supply the list of witnesses within the time prescribed under sub-rule (1) of Rule 1 of order XVI is in respect of witnesses to procure whose presence the assistance of the court is necessary. And this ought to be so because the court wants to be satisfied about the necessity and relevance of the evidence of such witness whose presence will be procured with the assistance of the court. And this ought to be so because the court wants to be satisfied about the necessity and relevance of the evidence of such witness whose presence will be procured with the assistance of the court. This not only explains the necessity of setting out the names of witnesses in the list but also the gist of evidence of each witness. If mere omission to mention the name of a witness in the list envisaged by sub-rule (1) of Rule 1 of Order XVI would enable the court to decline to examine such witness, Rule 1-A of Order XVI would not have omitted to mention that only those witnesses kept present could be examined whose names are mentioned in the list envisaged by sub-rule (1) and who can be produced without the assistance of the court. Viewed from this angle, Rule 1-A becomes wholly redundant. If it is obligatory upon the party to mention the 1 names of all witnesses irrespective of the fact whether some or all of them are to be summoned and even the names of those whom the party desires to produce without the assistance of the court are also required to be mentioned in the list on the pain that they may not be permitted to be examined, Rule 1-A would have given a clear legislative exposition in that behalf and the marginal note of Rule 1-A clearly negatives this suggestion. Marginal note of Rule 1-A reads as 'Production of witnesses without summons' and the rule proceeds to enable a party to bring any witness to give evidence or to produce documents without applying for summons under Rule 1. If it was implicit in Rule 1-A that it only enables the party to examine only those witnesses whose names are mentioned in the list filed under sub rule (1) of Rule 1 whom the party would produce before the court without the assistance of the court, it was not necessary to provide in Rule 1-A that the party may bring any witness to give evidence or to produce documents without applying for summons under Rule 1. Rule 1-A of Order XVI clearly brings to surface the two situations in which the two rules operate. Rule 1-A 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 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 1-A of order XVI irrespective of the fact whether the name of such witness is mentioned in the list or not. 10. It was, however, contended that Rule 1-A is subject to sub-rule (3) of Rule 1 and therefore, the court must ascertain how far sub-rule (3) would carve out an exception to the enabling provision contained in Rule 1-A. There is no inner contradiction between sub-rule (1) of Rule 1 and Rule 1-A of Order XVI. Sub-rule (3) of Rule 1 of Order XVI 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 1-A 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, 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 1-A operate in two different areas and cater to two different situations." 7. In paragraph-11 of the report, the apex Court held that the analysis of the relevant provisions would clearly bring out the underlying scheme under Order XVI, Rules 1 and 1-A, and Rule 22 of the High Court Rules would not derogate from such scheme. In paragraph-11 of the report, the apex Court held that the analysis of the relevant provisions would clearly bring out the underlying scheme under Order XVI, Rules 1 and 1-A, and Rule 22 of the High Court Rules would not derogate from such scheme. The scheme is that after the court framed issues which gives notice to the parties what facts they have to prove for succeeding in the matter which notice would enable the parties to determine what evidence oral and documentary it would like to lead, the party should file a list of witnesses with the gist of evidence of each witness in the court within the time prescribed by sub-rule (1). This advance filing of list is necessary because summoning the witnesses by the court is a time consuming process and to avoid the avoidable delay an obligation is cast on the party to file a list of witnesses whose presence the party desires to procure with the assistance of the court. But if on the date fixed for recording the evidence, the party is able to keep his witnesses present despite the fact that the names of the witnesses are not shown in the list filed under sub-rule (1) of Rule 1, the party would be entitled to examine these witnesses and to produce documents through the witnesses who are called to produce documents under Rule 1-A. It was further held that the Court has no jurisdiction to decline to examine the witness produced by the party and kept present when the evidence of the party is being recorded and is not closed, and the court has no jurisdiction to refuse to examine the witness who is present in the court on the short ground that the name of the witness was not mentioned in the list filed under sub-rule (1) of Rule 1 of Order XVI. The same view was taken in Vidhyadhar v. Mankikrao & another, (1999) 3 SCC 573 . 8. The case of the petitioners is required to be examined on the anvil of the decisions cited supra. The defendants filed the petition stating therein that inadvertently the names of some of the witnesses have been left out and unless those witnesses are examined, they will suffer irreparable injury. 8. The case of the petitioners is required to be examined on the anvil of the decisions cited supra. The defendants filed the petition stating therein that inadvertently the names of some of the witnesses have been left out and unless those witnesses are examined, they will suffer irreparable injury. As held by Mange Ram (supra) after issues were framed, the party should file a list of witnesses with the gist of evidence of each witness in the court within the time prescribed by sub-rule (1). Filing of list of witnesses is necessary because summoning the witnesses by the court is a time consuming process and to avoid the avoidable delay an obligation is cast on the party to file a list of witnesses whose presence the party desires to procure with the assistance of the court. But if on the date fixed for recording the evidence, the party is able to keep his witnesses present despite the fact that the names of the witnesses are not shown in the list filed under sub-rule (1) of Rule 1, the party would be entitled to examine these witnesses and to produce documents through the witnesses who are called to produce documents under Rule 1-A. The court has no jurisdiction to decline to examine the witness produced by the party and kept present when the evidence of the party was recorded and is not closed, and court has no jurisdiction to refuse to examine the witness who is present in the court on the short ground that the name of the witness was not mentioned in the list filed under sub-rule (1) of Rule 1 of Order 16 CPC. Immediately after evidence defendants examined their witnesses and an application was filed by them mentioning the names of the witnesses to be examined on their behalf. The finding of the learned trial court that the defendants have not filed any document to show that the proposed additional witnesses have direct knowledge as to the facts and circumstances and their examination in court is very much essential for deciding the issue, is perverse. The same is not germane for consideration. Mere delay in filing the application is not per se a ground to close the shutters of the court. 9. The same is not germane for consideration. Mere delay in filing the application is not per se a ground to close the shutters of the court. 9. In view of the same, the order dated 25.4.2007 passed by the learned Civil Judge (Senior Division), Khurda in C.S. No. 148 of 2002 is quashed. The petition filed by the defendants is allowed. It is open to the defendants to examine the witnesses mentioned in the list of the petition. The learned trial court shall conclude the hearing of the suit by end of March, 2016. The petition is allowed.