1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9977 OF 2009 Babulal Radhakisan Bidada. .. Petitioner Vs M/s. Miniyar Investment, Through Partner Shri Ramesh Nandlal Mantri & Another. .. Respondents ­­ Shri Anant Vadgaonkar for the Petitioner. Smt. Aparna Vhatkar, AGP for the Respondent No.2. ­­ CORAM : A.S.OKA, J. DATE : 31ST MARCH, 2010 P.C: . Heard learned counsel appearing for the Petitioner and the learned Assistant Government Pleader for Respondent No.2. Notice for final disposal was issued on 11th January, 2010. The Petitioner is the Defendant in a suit filed by the 1st Respondent. The notice for final disposal was issued on 11th January, 2010. The office noting shows that the 1st Respondent has been duly served with the notice. The suit is for recovery of money. The Petitioner is contesting the suit by filing a written statement. The Petitioner submitted a list of witnesses on 12th June, 2009. On 11th August, 2009, the Petitioner made an application at Exhibit­90 2 praying that the witness summons be issued to the witnesses. By the impugned order, the said application has been rejected. The learned Trial Judge while rejecting the application has observed that in view of sub­rule (4) of Rule 1 of Order XVI of the Code of Civil Procedure, 1908 ( hereinafter referred to as the said Code”), the Petitioner ought to have obtained the summons to the witnesses within five days of presenting the list of witnesses. 2. After having heard the learned counsel appearing for the Petitioner, I find that the approach of the learned Trial Judge is erroneous. Under Sub­rule (1) of Rule 1 of Order XVI of the said Code, the parties are under obligation to file a list of witnesses within 15 days after the date on which the issues are settled. Sub­rule (2) provides that 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. Sub­rule (3) confers the powers on the Trial Court to issue witness summons for the reasons to be recorded. It is true that notwithstanding the failure of a party to obtain witness summons, in view of Rule 1­A of Order XVI of the said Code, a party can always bring his witness before the Court. 3. On plain reading of Sub­rule (4) of Rule 1 of Order XVI of the said Code, it appears that the said provision is directory in nature. Apart from that, under Section 148 read with Section 151 of the said Code, in a 3 given case, for the reasons recorded, the Court is not powerless to extend the time. In the present case, it must be stated that the witness summons is sought only in respect of one of the witnesses who was named in the list of witnesses. Considering the facts of the case, the Court ought to have allowed the said application. Hence, I pass the following order. (a) The impugned order dated 11th August, 2009 is quashed and set aside and the application at Exhibit­90 made by the Petitioner is hereby allowed. (b) The Petitioner is directed to take witness summons by hand and ensure that the summons is served before the returnable date mentioned therein. (c) The Writ Petition is allowed in above terms. (A.S.OKA, J)