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2016 DIGILAW 754 (UTT)

MAHIPAL SHAH v. MAHESH POKHARIYAL

2016-10-20

RAJIV SHARMA

body2016
JUDGMENT Hon’ble Rajiv Sharma,J. This petition is instituted against the order dated 22.05.2015 rendered by learned Additional District Judge, Vikasnagar, District Dehradun in O.S. No. 247 of 2007, “Sri Mahipal Shah vs. Mahesh Pokhariyal & another”. 2. The genesis of the present case are traceable from the fact that the petitioner/plaintiff instituted a suit bearing O.S. No.248 of 2007 for cancellation of sale deed dated 23.05.2001 as well as seeking permanent perpetual injunction against the respondents. 3. A list of witnesses dated 13.11.2014 was filed in the court, wherein four witnesses were named and the other witnesses, with the permission of the court, were mentioned as the witnesses to be produced by the plaintiff/petitioner. 4. However, due to the mistake in the list of witnesses, name of two witnesses, namely, Bhuwan Veer Singh and Abhay Kumar Kukreti were left from being mentioned. Both these witnesses were important, as they were the witnesses to the Will dated 13.10.1992 and Power of Attorney dated 13.10.1992. 5. The issues were framed by the trial Court in the year 2012. Petitioner had filed an application on 18.05.2015 in the trial Court for taking on record the amended list of witnesses metioning the names of Bhuwan Veer Singh and Abhay Kumar Kukreti. The report was filed by the respondents. The trial Court dismissed the application of the petitioner on 22.05.2015. Hence, the present writ petition. 6. Learned trial Court has taken on record the list of witnesses furnished on 13.11.2014. The plaintiff inadvertently could not mention the names of two witnesses, namely, Bhuwan Veer Singh and Abhay Kumar Kukreti. 7. The issues were initially framed on 18.09.2012 and the amended issues were framed on 04.04.2014. There was no delay on the part of the petitioner/plaintiff in filing the application for insertion of two names in the list of witnesses. 8. The court below has taken a very hyper-technical view in dismissing the application filed by the petitioner/plaintiff. 9. 7. The issues were initially framed on 18.09.2012 and the amended issues were framed on 04.04.2014. There was no delay on the part of the petitioner/plaintiff in filing the application for insertion of two names in the list of witnesses. 8. The court below has taken a very hyper-technical view in dismissing the application filed by the petitioner/plaintiff. 9. Their Lordships of the Hon’ble Apex Court in the case of “Mange Ram vs. Brij Mohan & others”, reported in (1983) 4 SCC 36 have held as under:- The underlying scheme under Order 16, Rules 1 and 1-A, CPC and Rule 22(1) of the High Court Rules is that after the court frames issues and serves notice on the parties enabling them to determine what evidence, oral or documentary they would like to lead; a party can act either in accordance with Rule 1 or Rule 2. 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) and 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 and the court has no jurisdiction to decline to examine such witnesses except on grounds set out in proviso to Section 87(1) of the R.P. Act, 1951. Sub-rule (3) of Rule 1 and Rule 1-A operate in two different areas and cater to two different situations, and there is no inner conflict between the two. Sub-rule (3) of Rule 1 confers a wider jurisdiction on the court to cater to a situation where the party has failed 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. 10. Accordingly, the present petition is allowed and the order dated 22.05.2015, passed by the learned Additional District Judge, Vikasnagar, District Dehradun is set aside. 10. Accordingly, the present petition is allowed and the order dated 22.05.2015, passed by the learned Additional District Judge, Vikasnagar, District Dehradun is set aside. The application preferred by the petitioner/plaintiff under Order 16 Rule 1(3) read with Section 151 C.P.C. is also allowed. The trial Court is directed to take on record the amended list of witnesses.