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2019 DIGILAW 3131 (MAD)

Adilsait v. C. Shankar Rao

2019-11-13

R.SURESH KUMAR

body2019
ORDER : R. Suresh Kumar, J. 1. This Civil Revision Petition has been filed against the fair and decretal order made in I.A. No. 2 of 2019 in OS. No. 43 of 2014 on the file of the District Munsif at Udhagamandalam. 2. Before the trial Court, the petitioner/plaintiff filed an application in I.A. No. 2 of 2019 under Order XVI Rule 1 of the Civil Procedure Code to summon the witnesses mentioned in the affidavit. In the said application, the petitioner/plaintiff wanted to examine the witness of the defendants side, that means, those witnesses mentioned in the affidavit by the petitioner/plaintiff were to be summoned and examined as defendants side witnesses, so that the plaintiff will get a chance of cross examining the witnesses. The said application since was rejected by the trial Court through the impugned order, this revision petition has been filed. 3. I have heard the learned counsel appearing for the revision petitioner, who would submit that, under Order XVI Rule 1 of the Civil Procedure Code, any party can approach the trial Court by filing an application to summon any witnesses to be examined and therefore, insofar as the witnesses mentioned in the affidavit are concerned, those witnesses have to be examined before the Court below, where the plaintiff wanted to have the chance of examining those witnesses. In order to have a chance of examining the witnesses, he filed the present petition to summon those witnesses for the purpose of examining them as defendants side witnesses and once they examined as defendants side witnesses, then only the petitioner/plaintiff would get a chance of cross examining those witnesses. 4. The said application according to the learned counsel was filed under Order XVI Rule 1 of the Civil Procedure Code, therefore the said application ought to have been allowed by giving the chance of examining the witnesses to prove the case of plaintiff, since the said application was rejected, the learned counsel for the petitioner submits that it is erroneous. 5. I have heard the said arguments made by the learned counsel for the revision petitioner and have gone through the materials placed before this Court. 6. In fact this Court is afraid of having gone through the said application which is rejected by the trial Court, which is impugned herein. 7. 5. I have heard the said arguments made by the learned counsel for the revision petitioner and have gone through the materials placed before this Court. 6. In fact this Court is afraid of having gone through the said application which is rejected by the trial Court, which is impugned herein. 7. No doubt, Order XVI Rule 1 of the Civil Procedure Code, enables both parties i.e., both plaintiff and defendant to summon any witnesses to be examined on their behalf, however once such application is filed under Order XVI Rule 1 of the Civil Procedure Code, then such application has to be treated as supplementary one to summon the witnesses who have been left to be included in the list to be filed by either party under Order XVI Rule 1(1) of the Civil Procedure Code. In order to appreciate the same Order XVI Rule 1 of the Civil Procedure Code is extracted herein: "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 the Court a list of witnesses whom they propose to call either to give evidence or 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 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 first 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 the 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)." 8. (4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the 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)." 8. On careful reading of sub-rule (2) & (3) of Rule 1 of Order XVI of the Civil Procedure Code, it discloses that or made it clear that, any party desirous of obtaining any summons for the attendance of any person can file an application in Court stating the purpose for which the said witness is proposed to be summoned and after recording the reasons, the Court can permit such party, if such party shows sufficient cause for the omission to mention the name in the list under sub-rule (1), therefore what has been left under sub-rule (1) can be fulfilled by sub-rule (2) & (3), that is the scheme of the said order. Therefore, both the plaintiff and defendants are entitled to invoke Order XVI Rule 1 of the Civil Procedure Code to issue summons to any witnesses on their behalf, if sufficient reasons caused by them to the satisfaction of the Court, as to why, they have left the name of such witnesses to be included in the list filed at the first instance under sub-rule (1) of Order XVI Rule 1 of the Civil Procedure Code. Such an enabling provision will not in any way permit either party to summon any witnesses for the purpose of cross-examination of such witnesses on behalf of either side, that means, if plaintiff filed a petition to summon any witnesses, such witnesses should not be the witnesses of the defendants. 9. Here in the case in hand, the plaintiff filed the present application to summon the witnesses mentioned in the affidavit to examine the said witness as a witness of defendants, which is impermissible under law especially in the context of Order XVI Rule 1 of the Civil Procedure Code, therefore the said application was rightly rejected by the learned Judge through the impugned order, which absolutely requires no interference from this Court. 10. In view of the above, no case has been made out by the revision petitioner for entertaining this Civil Revision Petition, hence the revision completely fails and is dismissed. No costs. 10. In view of the above, no case has been made out by the revision petitioner for entertaining this Civil Revision Petition, hence the revision completely fails and is dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed.