1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 769 OF 2009 Caroma Agencies Pvt. Ltd. having place of business office at Bandekar Building Vasco-da-Gama, Goa, represented by the Director of Company Mr. Carmelino Machado, major in age, businessman, r/o. Bogmalo, Vasco-da-Gama. ... Petitioners versus Phulchandra Exports Ltd. 67, Bajaj Bhawan, Nariman Point, Mumbai – 400 021. ... Respondent Shri Vivek Rodrigues, Advocate for the Petitioner. Shri S. N. Kerkar, Advocate for the Respondent. Coram : N. A. BRITTO, J. Date : 12TH AUGUST, 2010. ORAL ORDER Heard learned Counsel on behalf of the parties. 2. The Writ Petitioners are the plaintiffs in Special Civil Suit No.66/05/A, and hereinafter will be referred to, as such. 2 3. Both the parties did not file any list of witnesses as contemplated by Order XVI, Rule 1 C.P.C. 4. The plaintiffs witness was under cross-examination. At that stage, the plaintiffs filed an application to produce certain additional documents. The said application is dated 15-4-2009. The names of the barge, the dates on which the trips were made were all mentioned in the said list annexed to it. Copies of documents were also annexed. The application was granted by the Court. 5. The plaintiffs then filed another application dated 1-7-2009 stating that the plaintiffs had only xerox copies of the documents allowed to be produced, and, therefore summons be issued to the barge owners, namely “Anant Laxmi Ore Carriers” and “Ganpat A. Honnawarkar & Brothers” to produce the originals. This application came to be rejected by the learned trial Court by Order dated 1-10-2009, impugned, in this Writ Petition. The learned trial Court rejected the application essentially on the ground that the provisions of Order XVI, Rule 1(1) were mandatory. 6. Order XVI deals with summoning of witnesses. Rule 1 reads as follows: 3 (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 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. (2) .... (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 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) .... Rule 1-A deals with production of witnesses without summons and it states that subject to the provisions of sub-rule (3) of rule 1, any party to the suit may, without applying for summons under rule 1, bring any witness to give evidence or to produce documents. 7. Learned Counsel on behalf of the Petitioners submits that the provisions of Rule 1(1) of Order XVI were not mandatory, and that the Court in terms of sub-rule(3), for reasons to be recorded, could have permitted a party to call, whether by summoning through Court or otherwise, any witness, other than those 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 mentioned in the list. 4 8. In my view, the conclusion arrived at by the learned Civil Judge cannot be accepted. In substance, the application/list dated 1-7-2009 could have been considered as an application/list filed beyond the period prescribed by Rule 1(1) of Order XVI C.P.C. for cause shown. 9. The plaintiffs in their application dated 15-4-2009 had indicated that only three days prior to filing of the said application that the plaintiffs were able to locate the second file containing the said log-sheet copies which were required to be produced. Although, the Defendants had filed a reply dated 10-7-2009 the Defendants had not contested the facts averred by the plaintiffs for late summoning the witnesses to produce the same. 10. There is no doubt that the parties should file the list of witnesses within the time prescribed but the mere fact that no such list is filed does not mean that the list can never be filed. The Court has ample discretion to condone the delay in filing the list of witnesses. The provisions of Order XVI, Rule 1(3) ought to be construed liberally. The procedure is not to be utilized to obstruct the free flow of justice and proper adjudication of the controversy. Procedure is generally not mandatory in nature and a party should not be made to suffer because the party had not adhered to the time limit set out in sub- rule(1) of Rule 1 of Order XVI C.P.C. 5 11. Considering the facts of the case and the stage when it was filed, in my view, the application filed by the plaintiffs dated 1-7-2009 summoning “Anant Laxmi Ore Carriers” and Ganpat A. Honnawarkar & Brothers” to produce the documents ought to have been allowed by the learned trial Court in order to able them to prove their claim. 12. The impugned Order dated 1-10-2009 therefore is hereby set aside, and the application filed by the plaintiffs dated 1-7-2009 is allowed, with no order as to costs. 13. Writ Petition therefore is accordingly disposed of. N. A. BRITTO, J. RD