THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.2244 of 2011 Date:29th September, 2011 Between: Gummalla Nagi Reddy S/o.Konda Reddy ..... Petitioner/Plaintiff AND Bhumireddi Lakshmi Devi W/o.Rama Mohan Reddy .....Respondent/defendant *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.2244 of 2011 ORDER: This revision is directed against the order, dated 19.04.2011, passed in I.A.No.224 of 2011 in O.S.No.457 of 2008 on the file of the Principal Junior Civil Judge, Proddatur, whereby and whereunder the learned Junior Civil Judge dismissed the application filed by the petitioner under Order XVI, Rules 1 and 2 CPC. 2. The petitioner herein is the plaintiff. He filed the suit for re- conveyance of the property from the defendant. The defendant filed written statement and resisted the prayer sought for by the plaintiff. The trial Court settled the issues. The petitioner/plaintiff examined three witnesses on his behalf and sought permission of the Court by moving an application under Order XVI, Rules 1 and 2 CPC to summon the scribe of Exs.A1 and A2. The application filed by him came to be dismissed on the ground that the scribe has not been mentioned in the list of witnesses. Hence, this revision. 3. Notice before admission came to be ordered on 01.07.2011. The respondent entered appearance through a counsel. 4. Heard learned counsel appearing for the petitioner/plaintiff and learned counsel appearing for the respondent/defendant. 5. Learned counsel appearing for the petitioner/plaintiff submits that the witness proposed to be examined is no other than the scribe of Exs.A1 and A2 and non-mentioning of his name in the list of witnesses submitted soonafter framing of issues is due to inadvertence. A further submission has been made that the Court is empowered to permit a party to call any witness, whose name does not appear in the list provided sufficient cause for omission has been offered. Learned counsel refers sub-rule (3) of Rule 1 of Order XVI, which reads as hereunder: “1. List of witnesses and summons to witnesses: (1)…… (2)…. (3) The Court, 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.” In support of his submissions, reliance has been placed on the judgment of this Court in Nankani Kishan v. M.Shankar Narayana[1], wherein it has been held as hereunder: “In the opinion of this court ample discretion is vested in the Court to permit a party to summon a witness whose name does not appear in the list to be submitted within fifteen days after settlement of the issues as per sub-rule (1) of Rule 1 of Order XVI of CPC. Further, the submission of list of witnesses under Order XVI, Rule 1(1) cannot be considered to be mandatory though the word “shall” is used in sub- rule (1). It is well settled that in the absence of any penal consequences, for noncompliance with a rule, the provision must be deemed to be directory and not mandatory. Further, there is no provision in CPC that the case of the plaintiff or the defendant can be thrown out by trial Court on a mere ground that list of witnesses as required under Order XVI, Rule 1(1) is not submitted to the Court within fifteen days after settlement of issues. This position may be compared with the procedure contained in Order IX of CPC. Order IX of CPC contains provisions enabling the Court to set defendant ex parte or to dismiss the suit for default on the happening of certain events contained therein. For instance, absence of the plaintiff when the suit is called or absence of the defendant when the suit is called after receiving summons. Such is not the case insofar as Order XVI, Rule 1 of CPC is concerned.” 6. Learned counsel appearing for the respondent/defendant submits that the petitioner/plaintiff has not offered any reason for not including the name of the scribe of Exs.A1 and A2 in the list of witnesses filed earlier and therefore, the trial Court is justified in dismissing the application. 7. The witness proposed to be examined is a scribe of Exs.A1 and A2. Attestors have already been examined as PWs.2 and 3. As held by this Court in the above referred decision, the discretion is vested in the Court to permit a party to summon a witness whose name does not appear in the list. In the given facts and circumstances, the trial Court ought to have considered the application of the petitioner/plaintiff on some terms, since the proposed witness is no other than the scribe of Exs.A1 and A2. 8. Accordingly, the Civil Revision Petition is allowed at the admission stage setting aside the order, dated 19.04.2011, passed in I.A.No.224 of 2011 in O.S.No.457 of 2008 on the file of the Principal Junior Civil Judge, Proddatur, and consequently, I.A.No.224 of 2011 stands allowed subject to payment of costs of Rs.2,000/- within 15 days in the trial Court. On such deposit, the respondent/defendant is permitted to withdraw the same. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:29th September, 2011 cs THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.2244 of 2011 Date:29th September, 2011 [1] 2002(2) ALD 63