wp10376.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.10376 OF 2010. Pratap Builders & Developers through its one of the partner Vinay s/o Premchand Surana, partner of M/s Pratap Builders, age 31 years, occu. Business, r/o Samarth Nagar, Aurangabad, Tq. & Dist. Aurangabad and others. .. PETITIONERS. VERSUS Dharamsingh s/o Sardarsingh Chhabada, age 60 years, occu. Business, r/o Sindhi Colony, Aurangabad, Tq. & Dist. Aurangabad and others. .. RESPONDENTS. ... Shri Bajaj Anil S., Advocate for Petitioners. Shri P.N. Sonpethkar, Advocate for R.No.2. Shri R.F. Totala, Advocate for R.No.4. Shri R.L. Chhabada, Advocate for R.No.6. ... CORAM : S.S. SHINDE,J. 6th DECEMBER, 2010. PER COURT: 1. This writ petition takes exception to the wp10376.10 2 order dated 20th October, 2010 passed below Exh.905 in Special Civil Suit No.207/2020 by the learned II Jt. Civil Judge, S.D., Aurangabad. 2. The learned Counsel for the petitioner submitted that the application filed by the petitioner herein, who is original defendant No.6 before the trial Court has been rejected on the ground that the said application is not filed at appropriate stage as provided under Order XVI Rule 1 of Code of Civil Procedure. The learned Counsel would submit that the provisions of the Order 16, R 1 of the Code of Civil Procedure are not mandatory in nature and the same are directory. He would further submit that the applications filed by the other defendants Nos.2 and 4 for issuance of summons to witnesses, after their evidence was completed, are entertained by the trial Court and, therefore, the application filed by the petitioner should not have been rejected on wp10376.10 3 the ground that it was not filed at appropriate stage before the trial Court. He further submitted that the documents which the defendant No.6 wants to rely and prove are from the office of Maharashtra State Electricity Board, from Revenue Department of State Government and some are from Municipal Corporation. For proving the said documents, it is necessary to examine the officers from the concerned departments. Therefore, the application filed by the petitioner herein should have been allowed by the trial Court. It is further submitted that the trial Court ought to have seen the contents of the application and should have decided the same on merits. Instead, the trial Court has rejected the application merely on the ground that it was not filed at appropriate stage. He further submitted that the names of some of the witnesses have been already mentioned in the written statement filed by the defendant No.6 and, therefore, there was no harm or no wp10376.10 4 prejudice could have been caused to other side if those witnesses would have been summoned by the Court and examined as witnesses of the petitioner. He further submitted that by rejecting the application filed by the petitioner, the trial Court has refused opportunity to prove the case of the present petitioner i.e. original defendant No.6. It is submitted that the application was filed by the petitioner herein as soon as the evidence of defendant No.6 was over. The learned Counsel further submitted that mere lapse on the part of the petitioner in not filing the list of witnesses at the appropriate stage as contemplated under Order 16, Rule 1 of the C.P.C., cannot be construed as an omission in law. The trial Court should have allowed the application filed by the petitioners treating the provisions of O.16, R.1 of C.P.C. as directory and not mandatory. The learned Counsel, in support of his contention that the provisions of O.16, R.1 are not mandatory but, wp10376.10 5 those are directory, relied on the judgment of the Supreme Court in the case of Rani Kusum (Smt) vs. Kanchan Devi (Smt) and others, reported in (2005) 6 SCC 705 and more particularly, paras 10 and 20 of the said judgment. He submitted that the Hon’ble Supreme Court had occasion to interpret the provisions of O.8, R.1 of the C.P.C. and proviso thereto and it was held that all the rules of procedure are the handmaid of justice. Those are not mandatory in nature and, therefore, those should be given liberal interpretation. He also invited my attention to the reported judgment of the Supreme Court in case of Sangram Singh vs. Election Tribunal Kotah and another, reported in AIR 1955 SC 425 and more particularly, paras 16, 17 and 18 of the said judgment and submitted that the procedure is 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. The learned wp10376.10 6 Counsel for the petitioner further invited my attention to the judgment of Rajasthan High court in case of Champa Lal vs. Amar Chand and another, reported in AIR 1999 RAJ 100 and also the judgment of the Andhra Pradesh High Court in case of Gopala Krishna Murthy vs. B. Ramchander Rao and others, reported in AIR 1973 AP 309. Relying on the above judgments, the learned Counsel for the petitioner has submitted that the provisions of O.16,R.1 of C.P.C. are not mandatory in nature but, those are directory and all the rules of procedure are the handmaid of justice. Therefore, in the facts of this case, the application filed by the defendant No.6 should have been allowed by the trial Court. The learned Counsel further invited my attention to the grounds taken in the petition, annexures thereto and submitted that this writ petition deserves to be allowed. 3. On the other hand, the learned Counsel for wp10376.10 7 the respective respondents have vehemently opposed admission of the writ petition and submitted that since the impugned order is passed taking recourse to O.16, R.1 of C.P.C., no interference is called for. 4. I have heard the learned Counsel for the petitioner at length. I have also perused the impugned order below Exh.905. The trial Court has taken a note of the fact that list of the witnesses filed by the defendant No.6 is after completion of the evidence of defendant No.6. On 17.4.2010 he has not moved application along with list of witnesses for permission to file List of Witnesses. Now the list of witnesses was filed by defendant No.6. Defendant No.6 has not filed list of witnesses at proper stage i.e. after framing of Issues under Order 16 Rule 1 of C.P.C. The Court has observed that the date on which the application was filed by the petitioner along with its witnesses was filed after evidence of wp10376.10 8 plaintiff and defendants No.1 to 5 and their cross-examination was completed and thereafter, the defendant No.6 had filed evidence by affidavit on 14.10.2008, his cross examination is completed on 17.4.2010. The trial Court has observed that period of one year six months and three days has been exhausted for completion of evidence of said witness. Even though the defendant No.6 wants to examine 62 witnesses. The trial Court has given reason that most of the witnesses are examined and the petitioner herein who is original defendant No.6 wants to examine another 62 witnesses. If the application is allowed, the plaintiff and defendants No.1 to 4 will suffer because they have no opportunity to ask question to proper witness. Taking overall view of the matter, the Court has rejected the application. 5. I have given due consideration to the submissions advanced by the Counsel for the wp10376.10 9 petitioner. It is not in dispute that the application filed by the petitioner was not at appropriate stage as per provisions of O.16, R.1 of C.P.C. By way of said application the petitioner prayed for issuing summons to 62 witnesses. The trial Court has taken a note of the fact that the period of one year six months and three days was exhausted for completion of evidence of the witnesses. 6. Though the Counsel for the petitioner, at the cost of repetition, submitted that the provisions of O.16, R.1 of C.P.C. are not mandatory and those are directory in nature, in the facts and circumstances of the case, the attempt of the petitioner to file an application at a belated stage with a prayer for examination of 62 witnesses, was an attempt to protract the trial. Even if, it is assumed for a moment that the provisions of O. 16, R.1 of C.P.C. are not mandatory in nature, however, said cannot be made redundant by wp10376.10 10 entertaining application at belated stage thereby causing injustice to other side. The Court is bound to struck the balance. In the given set of facts, the trial Court has to consider the stage of the trial and conclude the trial within a reasonable period. 7. The learned Counsel for the petitioner has relied on the judgment of the Apex Court in the case of Rani Kusum (supra), in the facts of that case, the subordinate Judge had allowed the application to take written statement on record. In that case, the written statement filed by the defendant was beyond the period of 90 days, however, same was accepted and taken on record by the trial Court. The appellant – plaintiff therein challenged the said order. The learned Single Judge of Patna High Court found no substance in the plea of the appellant therein that there was non-compliance with the requirements of Order 8 Rule 1 of Code of Civil Procedure, wp10376.10 11 1908 as amended by the Code of Civil Procedure (Amendment) Act, 2002. The learned Single Judge, therefore, dismissed the appeal, and the said order was confirmed by the Apex Court. In the present case, as stated earlier, number of witnesses were examined. Even, cross-examination was over and the application of the defendant No.6 – petitioner herein was to summon 62 witnesses. Therefore, in the facts of this case, the trial Court had rightly held that the application filed by the defendant No.6 was at belated stage. Not only that, for recording the evidence considerable time has been lapsed and, therefore, it would not be in the interest of justice to allow the application filed by the petitioner. In the other judgments relied upon by the learned Counsel for the petitioner, it has been observed that it should be seen that there should be justice to both the parties. wp10376.10 12 It is not that only interest of the the party who has filed an application should be seen. If the application of the petitioner is allowed, in that case, 62 witnesses will have to be summoned and examination of those 62 witnesses will have to be allowed, which will definitely cause prejudice to the other parties to the trial and would delay the conclusion of hearing for indefinite period. Therefore, in my opinion, the trial Court has taken correct and possible view. It may be that some of the names of witnesses have been mentioned in the written statement filed by the petitioner. However, the requirement of O.16, R.1 of C.P.C. is that list of witnesses is required to be filed separately, which was not done by the petitioner at appropriate stage. Therefore, taking overall view of the matter, in my opinion, the trial Court has arrived at a correct conclusion and possible view has been taken. That apart, hearing of every case has to be concluded within a wp10376.10 13 reasonable period. In earlier round of litigation between the same parties, this Court has directed trial Court to complete recording of the evidence and conclude the trial by the end of March, 2011. 8. By way of this petition, the petitioner has also taken exception to the order dated 25th October, 2010 passed by the trial Court refusing the prayer of the petitioner to adjourn the hearing. The learned Counsel of the petitioner submits that the order dated 25th October, 2010 forfeited the right of the defendant No.6 to lead further evidence. In my opinion, on plain reading of the said order, it does not appear so. Therefore, such apprehension of the petitioner – defendant No. 6 is mis-founded. 9. Taking overall view of the matter, I am of the opinion that no case is made out for interference in the impugned orders under wp10376.10 14 extraordinary jurisdiction of this Court since possible view has been taken by the Court below. The petition is devoid of merits and stands rejected. [ S.S. SHINDE ] JUDGE. ... PLK/*