JUDGMENT : 1. This petition filed under Article 227 of the Constitution of India takes exception to the order dated 29-11-2022 (Annexure P/6) passed in Civil Suit (RCS No. 10/2022) whereby application preferred by the petitioner/plaintiff under Order 16, Rule 1(3) of the Code of Civil Procedure 1908, (CPC) was dismissed by the Court below. 2. Draped in brevity, the admitted facts are that the petitioner/plaintiff instituted a suit for declaration and permanent injunction. It is prayed that the sale deed dated 25-3-2019 be declared as null and void. In turn, the respondents/defendants entered appearance. 3. During the pendency of the said suit and at the stage matter was pending before the Court below for plaintiff’s evidence, the petitioner filed application under Order 16, Rule 1(3) read with section 151 of CPC on 22-11-2022. The defendants filed their reply on 26-11-2022. The petitioner/plaintiff filed his written submission on 28-11-2022. 4. After hearing the parties on this interlocutory application, the Court below has passed the order dated 29-11-2022 and rejected the said application. Contention of Petitioner : 5. Learned counsel for the petitioner/plaintiff submits that no doubt the petitioner/plaintiff on previous occasion had opportunity to file the instant application. It is also true that the petitioner/plaintiff previously filed an application under Order 16, Rule 2 of CPC on 29-8-2022 for introducing Kumari Kavita Hasananand and Suresh Belaram as plaintiff witness but fact remains that the pleadings of the plaint particularly paragraph 5(v) onwards makes it clear that the petitioner/plaintiff has sufficient foundation and reason for preferring the application under Order 16, Rule 1 of CPC. Dr. Nilesh Kinge is MD Medicine and DM Neurology of Brain Hospital, M.K.J. College Ground, Jalgaon, Maharashtra. The said witness is relevant to establish and substantiate the pleadings mentioned in paragraph 5(v) and 5(c) of the plaint. Similarly, the other witness is equally important. The Court below without considering the necessity of introduction of said witnesses, rejected the application on the ground of dilatory tactics which view of the Court below is hyper technical in nature. 6. The learned counsel for the petitioner placed reliance in the language employed under Order 16, Rule 2 and 3 of C.P.C. and urged that interest of justice demands that petitioner/plaintiff should be given adequate opportunity to introduce the relevant witnesses. The aforesaid witnesses mentioned in the application (Annexure P-3) deserve to be requisitioned by the Court below. 6. The learned counsel for the petitioner placed reliance in the language employed under Order 16, Rule 2 and 3 of C.P.C. and urged that interest of justice demands that petitioner/plaintiff should be given adequate opportunity to introduce the relevant witnesses. The aforesaid witnesses mentioned in the application (Annexure P-3) deserve to be requisitioned by the Court below. The Court below without examining the relevance and requirement of said witnesses, rejected it on mechanical grounds which runs contrary to law laid down by this Court. Raghuraj Singh and others vs. Kedar Singh and others, Mansingh (deceased) Through L.Rs. Smt. Sumranbai and others vs. Rameshwar, I.L.R. (2010) M.P. 1077, Ramsiya vs. Anuradha and others, 2016 SCC OnLine MP 1258 and Mandir Shri Hanuman Murti and another vs. Collector Mahoday, Datia and another, were relied upon in support of above contentions. Stand of Respondent No. 1 : 7. Shri V. S. Choudhary, learned counsel for the respondents supported the impugned order and urged that Court below has passed a detailed order and even considered certain judgments of this Court. 8. The Court below has considered the conduct of the petitioner/plaintiff wherein he consumed sizable amount of time and dates but did not earlier prefer appropriate application under Order 16, Rule 2 of C.P.C. The plaintiff even assigned unjustifiable reason relating to “Shradh” of his wife. For these accumulative reasons, Court below has rejected the application which cannot be said to be illegal or improper. 9. The parties confined their arguments to the extent indicated above. 10. I have heard the parties at length and perused the record. Findings : 11. The aforesaid stand of parties makes it clear that there is no quarrel on the point that civil suit is pending at the stage of petitioner/plaintiff’s evidence for quite some time. This is equally true that the dates/opportunities mentioned in the impugned order were give to the plaintiff. During those dates, the plaintiff could have filed the application under Order 16, Rule 2 of C.P.C. for requisitioning Dr. Nilesh Kinge and another witness. Admittedly on 29-8-2022 another application of plaintiff under Order 16, Rule 2 of C.P.C. was filed and petitioner could have mentioned the names of witnesses who are sought to be requisitioned by instant application. 12. During those dates, the plaintiff could have filed the application under Order 16, Rule 2 of C.P.C. for requisitioning Dr. Nilesh Kinge and another witness. Admittedly on 29-8-2022 another application of plaintiff under Order 16, Rule 2 of C.P.C. was filed and petitioner could have mentioned the names of witnesses who are sought to be requisitioned by instant application. 12. A careful reading of para 5(v), 5(c) and 6 of plaint shows that the plaintiff has categorically pleaded that defendant No. 1 by taking advantage of his unsound mental condition got the impugned sale deed executed. The Court below in the entire impugned order dated 29-11-2022 did not deal with the relevance of said witnesses for the purpose of proving the plaint averments mentioned in 5(v), 5(c) and (6). In other words, I find substance in the arguments of Shri Kochar that the Court below has devoted its entire order on the procedural part and has not taken pains to consider the necessity of introduction of said witnesses. 13. This is trite that procedural law is brain child of law makers in order to advance the cause of justice. This is trite that all the rules of procedure are the handmaid of justice. The Apex Court in AIR 1955 SC 425 , Sangram Singh vs. Election Tribunal, Kotah opined that A code of procedure must be regarded as such. It is “procedure”, something designed to facilitate justice and further its ends : not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against. The Apex Court in (1975) 1 SCC 774 , Sushil Kumar Sen vs. State of Bihar opined that the mortality of justice at the hands of law troubles a judge’s conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence-processual, as much as substantive. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence-processual, as much as substantive. In (1976) 1 SCC 719 , State of Punjab vs. Shamlal Murari, the Apex Court held that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. In (1984) 3 SCC 46 , Ghanshyam Dass vs. Dominion of India the Apex Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to subserve and advance the cause of justice rather than to defeat it as all the laws of procedure are based on this principle. In (2005) 4 SCC 480 , Kailash vs. Nanhku the Apex Court held that the provisions of Civil Procedure Code or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice. (See : Dataram Singh and ors. vs. Brindawan Singh and ors., reported in. 14. If the impugned order is tested on the anvil of the aforesaid litmus test there will be no cavil of doubt that the Court below was totally guided by the procedural aspect of the matter and aspect of cause of justice has escaped its notice. 15. This Court in Mandir Shri Haunuman Murti (supra) opined as under :— “7. In my view, the Apex Court has drawn curtains on the question involved in this case. In Mange Ram (supra) the Apex Court opined as under :— “There is no inner contradiction between sub-rule (1) of Rule 1 and Rule 1-A of Order XVI. 15. This Court in Mandir Shri Haunuman Murti (supra) opined as under :— “7. In my view, the Apex Court has drawn curtains on the question involved in this case. In Mange Ram (supra) the Apex Court opined as under :— “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, the Court may 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 could 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.” 8. The said view was followed by Supreme Court in Vidhyadhar vs. Manikrao, reported in (1999) 3 SCC 573 : AIR 1999 SC 1441 , the Apex Court opined as under :— “30. These two Rules read together clearly indicate that it is open to a party to summon the witness to the Court or may, without applying for summons, bring the witnesses to give evidence or to produce documents. Sub-rule (3) of Rule 1 provides that although the name of a witness may not find place in the list of witnesses filed by a party in the Court, it may allow the party to produce a witness though he may not have been summoned through the Court. Rule 1-A which was introduced by the Code of Civil Procedure (Amendment) Act, 1976 with effect from 1-2-1977 has placed the matter beyond doubt by providing in clear and specified terms that any party to the suit may bring any witness to give evidence or to produce documents. Rule 1-A which was introduced by the Code of Civil Procedure (Amendment) Act, 1976 with effect from 1-2-1977 has placed the matter beyond doubt by providing in clear and specified terms that any party to the suit may bring any witness to give evidence or to produce documents. Since this Rule is subject to the provisions of sub-rule (3) of Rule 1, all that can be contended is that before proceeding to examine any witness who might have been brought by a party for that purpose, the leave of the Court may be necessary but this by itself will not mean that Rule 1-A was in derogation of sub-rule (3) of Rule 1. The whole position was explained by this Court in Mange Ram vs. Brij Mohan, AIR 1983 SC 925 : (1983) 4 SCC 36 : (1983) 3 SCR 525 , in which it was held that sub-rule (3) of Rule 1 and Rule 1-A operate in two different areas and cater to two different situations.” 16. This view was followed by the Coordinate Bench in Ramsiya (supra). The Division Bench in Man Singh (supra) and Single Bench in Raghuraj Singh (supra) has taken the same view. 17. Thus, as a straight jacket formula, it cannot be said that in every case where there is a delay on the part of plaintiff to prefer an application under Order 16, Rule 1(3) of C.P.C., the application must be thrown on the ground of delay. It depends on the facts and circumstances of the case as well as the necessity and relevance of the witnesses sought to be introduced/requisitioned. 18. In the instant case, in the considered opinion of this Court, in order to prove the pleadings from para 5(v) to 6 the aforesaid witnesses sought to be requisitioned are relevant and therefore, rejection of the said application solely on the ground of delay cannot be countenanced. The inconvenience caused to the defendants can be compensated by imposing cost. 19. Accordingly, the impugned order dated 29-11-2022 is set aside. The petitioner/plaintiff shall pay Rs. 1000/- (Rs. One Thousand only) as cost to the defendant No. 1. Subject to payment of said cost, the Court below shall treat the application dated 22-11-2022 (Annexure P-3) as allowed and proceed from that stage in accordance with law. 19. Accordingly, the impugned order dated 29-11-2022 is set aside. The petitioner/plaintiff shall pay Rs. 1000/- (Rs. One Thousand only) as cost to the defendant No. 1. Subject to payment of said cost, the Court below shall treat the application dated 22-11-2022 (Annexure P-3) as allowed and proceed from that stage in accordance with law. It is made clear that this Court has not expressed any opinion on the merits of the case. 20. Petition is allowed to the extent indicated above.