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2016 DIGILAW 346 (UTT)

Surjeet Kaur v. Amarjeet Singh Dhot

2016-07-15

U.C.DHYANI

body2016
JUDGMENT : By means of present writ petition, the petitioner seeks following relief, among others: “(i) To issue writ, order or directions in the nature of certiorari to quash the order dated 25/5/2016, passed by Civil Judge (Jr. Div.) Ramnagar, Nainital, in Civil Suit No. 20 of 2014 titled as Amarjeet Singh Dhot vs. Surjeet Kaur & another directing the learned court below to give an opportunity to the petitioner to lead her evidence in terms and condition as may deem fit and proper in the facts and circumstances of the case; contained as Annexure no. 2 to the petition.” 2. The suit for cancellation of sale deed was filed by the plaintiff-respondent against the defendant-petitioner. Co-incidentally both the petitioner and respondent are living in United Kingdom. Both are represented by their Power of Attorney holders before the Trial Court. Whereas the respondent entered into the witness box for his evidence, the petitioner could not. The reason assigned to the same is that petitioner’s name was not incorporated in the list of witnesses, and also the fact that she is living in United Kingdom. 3. The suit was instituted in the year 2014. When an application was moved on behalf of the petitioner that she may be permitted to enter into the witness box, such application was dismissed primarily on the ground that Order 16 Rule-1 C.P.C. does not permit the Trial Court to do so. The Court below was also of the view that the petitioner is only interested in delaying the disposal of the suit. Therefore, an application paper no. 79 C was dismissed and the suit was listed for arguments. 4. Learned counsel for the petitioner submits that the petitioner will come from England and give her evidence before the Trial Court on any date, to be fixed by this Hon’ble Court. He pressed that at least one month time be granted to the petitioner for adducing evidence before the Court below. The question, which arises for consideration by this Court is – Whether this Court can permit the petitioner to do so? What is the law on the point? 5. The Court will have to advert to the scheme of law under Order 16 C.P.C. as below: “1. The question, which arises for consideration by this Court is – Whether this Court can permit the petitioner to do so? What is the law on the point? 5. The Court will have to advert to the scheme of law under Order 16 C.P.C. as below: “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 herein 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..” 6. The scheme, therefore, is like this – before or within 15 days of date of settlement of the issues, the parties are obliged to furnish a list of their witnesses. In the instant case, although a list of witnesses was filed on behalf of the petitioner, but her name was not there. 7. Sub Rule (3) of Rule (1) of Order 16 enjoins upon the Court to permit to call any witness, other than those whose names appear in the list, if such party shows sufficient cause for the omission to mention the name of such witness in the list. The Court is also required to record such reasons in support of its decision to do so. 8. Admittedly, no sufficient cause has been shown in the application dated 18.5.2006, which has been filed on behalf of the petitioner, but learned counsel for the petitioner has been able to convince this Court that since the petitioner is living in United Kingdom and her Power of Attorney holder is doing pairavi in the case, therefore, there is glaring omission on her part, not to incorporate her name in the list of witnesses. 9. 9. Since the petitioner has come to this Court with clean hands, and also that sufficient cause is shown before this Court for the omission to mention the name of the petitioner in the list of witnesses, therefore, this Court is of the opinion that one opportunity should be given to the petitioner to come from United Kingdom and adduce her evidence before the Trial Court on payment of costs to the respondent, for proper adjudication of the case and also in the interest of justice. 10. There is yet another problem in this case from the point of view of the petitioner. Order 18 Rule 3-A C.P.C. creates a bar as follows: “3-A. Party to appear before other witnesses- Where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded, permits him to appear as his own witness at a later stage.” 11. Petitioner’s own ignorance has compounded the misery for her. But, as said earlier, the petitioner is being permitted to appear in the witness box, after the evidence of her witness has been recorded even though her name is not in the list of witnesses, considering the peculiar facts and circumstances of the case, purely in the interest of justice. 12. The petitioner shall therefore, appear before the Trial Court on 16.8.2016 for her evidence and if her evidence is not concluded on that day, on 17.8.2016 & 19.8.2016, so that the evidence is concluded by 19.8.2016 and the Trial Court may proceed with the decision of the suit thereafter, subject to payment of Rs. 10,000/- as cost to the respondent. The order impugned is modified to this extent. 13. Writ petition thus stands disposed of at the admission stage. 14. Since present writ petition is being disposed of without notice to the respondent, therefore, liberty is granted to the respondent to move for recall of this order, if he feels aggrieved with the same. 15. Let a certified copy of this order be supplied to the learned counsel for the petitioner, today itself, on payment of usual charges.