WP.4523/2014 1 HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR JUSTICE SUJOY PAUL. [CASE NUMBER] [PRECEDENT]. Shri [ENTITY], Advocate for the petitioner. Shri [ENTITY], Advocate for the respondent. ORDER
( 09 / 09 /2015 ) The petitioner is aggrieved by order dated 12.05.2014 whereby his application preferred under [SECTION] [ACT] for summoning the witness for evidence has been rejected by the court below.
2. Shri [ENTITY], learned counsel for the petitioner, submits that petitioner preferred an application under [SECTION] [ACT] along with another application under [SECTION] of the [ACT]. These applications were relating to compact disk (CD) of the photographer and certain photographs of suit property. The Court below allowed the said applications preferred under [SECTION] [ACT] and under [SECTION] of the [ACT] respectively. However, the application under [SECTION] [ACT] was rejected on the ground that per the [SECTION] [ACT], the plaintiff was required to file list of witnesses within 15 days from the date of framing of issues. As per [SECTION] of said Rule, the new witness other than the witnesses whose names are mentioned in the said list, may be called provided leave / permission is granted by the court. The party seeking such permission needs to assign reason for not mentioning the name of such new witness in the said list.
The Court below opined that in the present case the plaintiff did not submit any list of witnesses. Hence, he cannot be permitted to summon the witness through Court.
3. By placing reliance on [PRECEDENT], Shri [ENTITY] submits that finding of court below runs contrary to the settled legal position. He submits that as per requirement of [SECTION] of [ACT] the statement of photographer is necessary. The Court below has taken technical approach after having allowed other two applications relating to the same photograph / CD. The order of court below was not justifiable and needs interference in this petition under [SECTION] of the [ACT] .
4. Shri [ENTITY] placed reliance on various clauses of [SECTION] [ACT] and urged that there is no legal error in the order of court below.
5. No other point is pressed by learned counsel for the parties.
6. I have heard the parties and perused the record.
7. In my view, the Apex Court has drawn curtains on the question involved in this case. In [ENTITY] (supra) the Apex Court opined as under :-
"There is no inner contradiction between [SECTION] and [SECTION]. [SECTION] 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 [SECTION] and in such a situation the party of necessity has to seek the assistance of the Court under [SECTION] 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 [SECTION], 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, [SECTION] and [SECTION] operate in two different areas and cater to two different situations."
8. The said view was followed by Supreme Court in ([PRECEDENT]. 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. [SECTION] 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. [SECTION] which was introduced by the [ACT] with effect from 01.02.1977 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 [SECTION], 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 [SECTION] was in derogation of [SECTION]. The whole position was explained by this Court in [ENTITY] Vs. Brij Mohan, AIR 1983 SC 925 : (1983) 4 SCC 36 : (1983) 3 SCR 525, in which it was held that [SECTION] and [SECTION] operate in two different areas and cater to two different situations."
9. The said Supreme Courts judgments were considered by Division Bench of Karnataka High Court in [PRECEDENT]. The High Court opined as under :-
"14. In the present case, of course, the plaintiff has not filed the application under [SECTION], [ACT], but he has filed an application purported to be under [SECTION] of [ACT] read with [SECTION], [ACT]. It is well settled that if a Court has jurisdiction to entertain an application in law, simply because the mover of the application has not stated correct provision of law or has stated wrong or incorrect provisions of law, that circumstance will not divest the power of the court to entertain the application and pass appropriate order on merit. Therefore, the application already filed by the plaintiff could be regarded as the application filed under [SECTION], [ACT]. Since, we have held that even in a case where a party has not filed list of witnesses envisaged under [SECTION], [ACT], he can make an application under [SECTION] thereof, condemning, [SECTION] of [ACT] as ultra vires [SECTION], [ACT], would not arise. In other words, [SECTION] of [ACT] proviso is ultra vires [SECTION] of [ACT]."
10. In view of aforesaid legal position, there is no difficulty to hold that court below has erred in examining the matter with a hyper technical point of view. As per said judgments, a witness can be brought by party even if no list is filed earlier or name of said witness does not figure in the said list. It needs to be remembered that procedural law is made to advance the cause of justice. The same is not made to strangulate the litigant on hyper technical ground. This Court considered this aspect in [PRECEDENT] and opined as under :-
"This is settled in law that all the rules of procedure are the handmaid of justice. The Apex Court in [PRECEDENT] 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 [PRECEDENT] 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. In [PRECEDENT], 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 [PRECEDENT] 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 [PRECEDENT] the Apex Court held that the provisions of [ACT] 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."
11. As analyzed above, the Court below was not justified in disallowing the application preferred under [SECTION] [ACT] More so when related applications preferred under [SECTION] [ACT] and under [SECTION] of the [ACT] were allowed. The impugned order of the court below runs contrary to settled legal position. Consequently, the impugned order dated 12.05.2014 to the extent application preferred under [SECTION] [ACT] was disallowed, is set aside. The application stands allowed. The Court below is directed to proceed from that stage.
12. Petition is allowed.
([ENTITY]) Judge sarathe