1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.5134 OF 2011. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 21.07.2011. 1. Heard Mr.Mohammad Waseemullah, learned counsel for the petitioner and Mr.K.S.Naik, learned counsel for the Respondent. 2. The Respondent had filed a suit for eviction under the provisions of the Maharashtra Rent Act. The plaintiff examined himself. Thereafter, filed examination-in-chief of a witness by affidavit. The petitioner filed an application raising objection for accepting the said affidavit as evidence under provisions of Order XVI Rule 1(3) of the C.P.C. The said application is rejected. Aggrieved thereby, the 2 present petition is filed. 3. Mr.Mohd.Waseemullah, learned counsel submitted that the Court has not adhered to the provisions of Order XVI Rule 1 sub-rule (3) of the C.P.C. Even if reliance is placed on order XVI Rule 1-A, still, sub-rule (3) of Rule 1 of Order XVI can not be ignored. Rule 1-A of Order XVI shall have to be read in consonance with order XVI Rule 1(3) of the C.P.C. The plaintiff has not filed list of witnesses on record and as such he was precluded from examining any witness. If the Court wants to allow the evidence of a person who is not named in the list of witness then sufficient cause is to be made out for not giving the list of witnesses. Without the sufficient cause being shown, the plaintiff could not have been permitted to allow the witness. The Court below has not considered this aspect. 4. Mr.K.S. Naik, learned counsel for the plaintiff supports the order and states that the witness was being produced by the plaintiff on his own accord and no witness summons were sought. Under Rule 1-A of Order XVI of the 3 C.P.C., the same is permissible. The trial Court has properly considered this aspect. 5. The procedural law is a vehicle to sub- serve the substantial cause of justice. No doubt, the list of witnesses is not filed on record and the examination-in-Chief of the witness has been filed. The provisions of Order XVI are directory in nature . The non-compliance of the same would not be fatal to an extent that a party would be precluded from examining the witness. The only caution the party has to show sufficient cause for omission of that person from the list. Anyhow, when the examination-in-Chief has been filed on affidavit and the same is accepted then in such circumstances, it will be deemed that the Court has applied his mind while accepting the said examination-in-Chief. 6. In light of the above, the discretion exercised by the Court can not be faulted with. This Hon'ble Court in the exercise of its supervisory jurisdiction would not interfere in such a discretion exercised by the trial Court. 7. The Writ Petition is accordingly disposed 4 of. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.21.07.2011. asp/office/wp5134.11