Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 200 (GAU)

STG Associates v. Tilak Cosmetics

2018-02-01

A.K.GOSWAMI

body2018
JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. S.C. Keyal, learned counsel for the petitioners. Also heard Mr. K. Saikia, learned counsel appearing for the respondents. By this application under Article 227 of the Constitution of India read with Section 115 CPC, the petitioners challenge the order dated 10.06.2015 passed by the learned Civil Judge, No. 2, Kamrup (Metro) at Guwahati in Money Suit No. 114/2005, whereby the petition No. 2703/2015 was rejected. The petition in question reads as follows :- "The humble petition on behalf of the petitioner. Most Respectfully Sheweth 1. That today is the date fixed for cross of P.W. 1. 2. That the said P.W. 2 (Smti. Rumi Bordoloi) recently got married and as such she could not appear before the Court today. However, for the ends of justice we are filing evidence on affidavit of P.W. 4 under such circumstances, kindly, the petition be allowed. 3. That this petition is made bona fide and for the ends of justice. It is therefore, your honour would most graciously be pleased to admit this petition and may pass order/orders as the Court may deem fit & proper for the ends of justice." 2. It will be appropriate to take note of provisions of Order XVI Rule 1(1) and Order XVI Rule 1(3) of the CPC. Order XVI Rule 1(1) CPC provides that 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. Order XVI Rule 1 (3) CPC provides that 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 3. Admittedly, the name of the PW-4 did not figure in the list of witnesses submitted under Order XVI Rule 1(1) CPC. Admittedly, the name of the PW-4 did not figure in the list of witnesses submitted under Order XVI Rule 1(1) CPC. However, Order XVI Rule 1 (3) CPC enable the Court, for reasons to be recorded, to 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 omission to mention the name of such witness in the said list. 4. So the crucial aspect that has to be considered is whether the party has shown sufficient cause for the omission to mention the name of such witness in the said list. In the instant case, the plaintiff, on its own without being permitted, filed the evidence of PW-4, who was not a listed witness under Order XVI Rule 1(1) CPC. Therefore, the learned trial Court was justified in not accepting the evidence of PW-4, as filed. 5. At this stage, Mr. Keyal submits that the plaintiff may be permitted to file an appropriate petition before the learned trial Court praying for submitting evidence of Shri Debashish Nath, whose evidence was submitted earlier as PW-4. Mr. Keyal further submits that this Court may fix a date for appearance of the parties before the learned trial Court and he submits that the petition in terms of Order XVI Rule 1(3) CPC will be filed on that day. 6. Having heard the submissions of the learned counsel appearing for the parties, the impugned order dated 10.06.2015 passed by the learned Civil Judge, No. 2, Kamrup (Metro) at Guwahati in Money Suit No. 114/2005 is not interfered with. However, liberty is granted to the plaintiff to file petition for permitting plaintiff to tender the evidence of Shri Debashish Nath (PW-4). 7. The parties to the proceeding will appear before the learned trial Court on 12th March, 2018. In the event of filing of any such petition on 12.03.2018, the same shall be considered by the learned trial Court on its own merit in accordance with law without being influenced by its earlier order dated 10.06.2015 and the order passed by this Court today. With the above observations and directions, the civil revision petition is disposed of. No cost.