S.B.CIVIL WRIT PETITION NO.1034/2009 LRrs of Jetha Ram vs. Nain Singh & Ors. DATE OF ORDER : 29/10/2009 1/6 S.B.CIVIL WRIT PETITION NO.1034/2009 (LRrs of Jetha Ram vs. Nain Singh & Ors.) DATE OF ORDER : 29/10/2009 HON'BLE DR.JUSTICE VINEET KOTHARI Mr.C.S.Kotwani, for the petitioners. Mr.Amit Mehta, for the respondents. 1. Heard learned counsels. 2. This writ petition has been filed by the defendant, L.Rs of Jetha Ram, challenging the impugned order dated 19/1/2009, whereby, the learned trial court rejected the application of the defendant under Order 16 Rule 1(3) CPC for summoning the two witnesses during the course of the defendant's evidence, (i) Dr.Keshav Kotwani and (ii) Collector (Stamps). Said application was filed by the defendants on the ground that Jetha Ram executed the sale deed in favour of the plaintiff under the influence of opium and he was being treated by Dr.Keshav Kotwani and, therefore, even though list of witnesses filed by the defendants did not include the name of these two witnesses, they were required to be summoned by the learned trial court in support of defence evidence. The other witness namely Collector S.B.CIVIL WRIT PETITION NO.1034/2009 LRrs of Jetha Ram vs. Nain Singh & Ors. DATE OF ORDER : 29/10/2009 2/6 (Stamps) was sought to be summoned on the ground that the said authority had held an inquiry into the execution of the sale deed in question and, therefore, summoning of that authority was also necessary. 3. Learned trial court rejected the said application inter alia on two grounds; (i) that names of these two witnesses was not included in the list of witnesses and (ii) said application was belatedly filed when the plaintiff evidence was already over and to delay the trial, the defendants have moved this application, which was liable to be rejected at the cost of Rs.300/-. Being aggrieved of the said order, the defendant have approached this Court by way of present writ petition. 4. Mr. C.S.Kotwani, learned counsel for the defendant petitioners submitted that Order 16 Rule 1 (3) CPC permits the trial court, for reasons to be recorded, to call or summon witness even though such witness do not figure in the list of witnesses filed by the party, if such party shows sufficient cause for omission to mention the name of such witness in the said list. He submitted that, relying upon the various decisions of different High Courts including this Court, that S.B.CIVIL WRIT PETITION NO.1034/2009 LRrs of Jetha Ram vs. Nain Singh & Ors. DATE OF ORDER : 29/10/2009 3/6 the provisions of Order 16 Rule 1 (3) CPC are directory in nature, therefore, in the interest of justice said witnesses can be summoned by the learned trial court even though their names were not included in the list of witnesses filed by the defendants. The case laws relied upon by the learned counsel for the petitioners are as under:- (i) Eldhose vs. Yacob & Ors. - AIR 2009 Kerala 104 (ii) Minor Dipika & etc. vs. C.G.State Electricity Board & Anr. - AIR 2007 Chhattisgarh 1 (iii) Gopala Krishna Murthy vs. B. Ramchander Rao & Ors. - AIR 1973 AP 309 (iv) Bakridi & Ors. vs. In-charge District Judge – 2007 AIHC 340 (v) Rehman Hussain vs. Altaf Hussain & Anr.- 2004 (2) Kar.L.J. 361 (vi) Satnam Transport Co. & anr. Prakash Mal Surana – AIR 1981 Raj. 75 (vii) N.Balraju & Anr. vs. G. Vidhyadhar – AIR 2004 AP 516 (viii) Bhanwar Singh & Anr. vs. Gir Raj Prasad – AIR 1978 Rajasthan 20 (ix) Kalu & Anr. vs. Chhitar & others – AIR 1987 Rajasthan 206 S.B.CIVIL WRIT PETITION NO.1034/2009 LRrs of Jetha Ram vs. Nain Singh & Ors. DATE OF ORDER : 29/10/2009 4/6 5. On the side opposite, Mr. Amit Mehta, learned counsel appearing for the respondent plaintiff submitted that requirement of Order 16 Rule 1 (1) CPC for furnishing the list of witnesses is mandatory in nature and, therefore, it cannot be easily be waived or dispensed with. Moreover, in order to delay the trial the defendants moved the said application in the suit filed in 2000, when the plaintiff's evidence was closed on 6/12/2008 and defendants' evidence was to start in the year 2009. He urged that it was open for the defendants to produce these witnesses as his own witnesses. Order 16 Rule 1A CPC permits such witnesses to be produced even though their names are not included in the list of witnesses. He, therefore, submitted that application filed by the defendant under Order 16 Rule 1 (3) CPC was misconceived and has been rightly rejected by the trial court with cost. 6. Having heard learned counsels and upon perusal of the record of the case and reasons given in the impugned order, this court is satisfied that the learned trial court has not committed any error in rejecting the application filed by the defendant petitioner under Order 16 Rule 1 (3) CPC. S.B.CIVIL WRIT PETITION NO.1034/2009 LRrs of Jetha Ram vs. Nain Singh & Ors. DATE OF ORDER : 29/10/2009 5/6 7. It is true that provisions of Order 16 Rule 1 (3) are directory in nature and permit the trial court to summon such witnesses, whose names are not included in the list of witnesses and in the interest of justice, if the Court is of the opinion that summoning of such witnesses is necessary. It is equally true that what is permitted to the trial court is what it can do but does not mandate at the same time to learned trial court that it should do a particular thing. It is absolutely within the discretion of the learned trial court to assign reasons, either for summoning such witnesses or for refusing to summon such witnesses. In the present case, Dr. Keshav Kotwani, who was sought to be summoned on the ground that he was treating the said Jetha Ram for his opium habit, could very well be produced by the defendant as his own witness. As far as other witness Collector (Stamps) is concerned, who was sought to be produced in order to prove the inquiry report for the inquiry allegedly held by him, it is seen that said inquiry report is certainly a public document and certified copy of which could have been obtained and produced by the defendants before the trial court, which was admissible in evidence. To avoid his own inconvenience, the defendants in the S.B.CIVIL WRIT PETITION NO.1034/2009 LRrs of Jetha Ram vs. Nain Singh & Ors. DATE OF ORDER : 29/10/2009 6/6 present case threw this burden on the trial court, at the time his evidence has only commenced. Such application, is believed, and has rightly been believed to have been filed merely with a view to cause delay in the trial. Such application cannot be said to be a bonafide. Therefore, the learned trial court cannot said to have committed any error in rejecting the said application with cost. 8. This Court finds no force in the submissions of the learned counsel for the defendant petitioners and without any quarrel to the preposition of law laid down in the case laws cited by the learned counsel for the petitioners, this petition is liable to be dismissed and same is accordingly dismissed. (DR.VINEET KOTHARI), J. item no. 1 baweja/-