ti f^ 'iai °n', ^- S DBs IN THE HIGH COURT OF CHHATTISGARH ATBILASPUR WRIT PETITION N0. 4^0C-/2005 FS.B.1/ FDATE OF PRESENTATION 24.08.20051 ^ PETITIONER PLAINTIFF ^ -\0'> ^ ("^ A'E-'.".'.,n' 'X- ^^^•'.^-^^ ^SSgS^"" A- RESPONDENTS DEFENDANTS J^linor Dipika D/o Setram/ Aged about lL-yeaj;s, Student, Through- next friend Setram S/6 Jharu Dhoba,~aged about 45 years, Occupation- Labourer, R/o village Sutupali, P.S. Pusour, District Raigarh [C.G.]. VERSUS :- !> The C.G. State Electricity Board / Through- Executive Engineer, C.G. S.E.B. Raigarh, District Raigarh [C.G.]. 2] The Assistant Engineer, C.G. State Electricity Board, Raigarh, District Raigarh [C.G.]. WRIT PETITION UNDER ARTICLE 227 OF THE CQNSTITUTION OF INDIA —^1 <^E .l1'^,' HIGH COURT OF JUDICATURB AT BILA8PUR (CHHATTISGARH) Writ Petitlon Mo.4200 of 2005 Mlnor Dipika ° - Versus - The C.G. State E'lectricity Board & another Writ Petltlon Bo.4201 of 200S Minor Nalini - Versus - The C.G. State Electricity Board SB another POST FOR ORDER OH 12thSEPTEMBER, 2005 Sd/- L.C. Bhadoo ,3u< s HIGH COURT OF JUDICATURE AT BILASPUR {CHHATTISGARHl WritPetitipaHo.4200of2005 Miuor Dipika - Versus - The C.G. State Electricity Board& aaotib.er Writ Petitioa No.4201 of200S Minbr Nalmi - Vereus - The C.G. State Eleetricily Board & anofher Present: - Shri Malay Kuinar Bhaduri, Advocate; For the peti.tion.ers. Shri Abhishek Sinlta, Advocate: Fortherespondents. ORDBR (Passed on/2.^ Septeinber, 2005) Before Hon'ble Mr. L.C. Bhadoo, J. I. Writ Petition No.4200/2005 ffled by Mrnor Dipika fhrough her next inend Setram against fhe C.G. State Electricity Board & Writ Petition No. 1804/2005 ffled by Miaor Nalini through her next frieud Gauesh Dhoba against the C.G. State EIectricity Board are being disposed ofby this coTnmon order, as ia these writ petitious strmlar qiiestiou. oflaw is involved. 2. By these writ petitions fhe petitioners have questioned Qie legality, propriety and con-ectaess of orders dated 10.8.2005 passed by leamed District Judge, Raigarh in. Civil Siut Nos.SA/2004 & 6A/2004 whereby leamed District Judge has rejected the appUcations ffled on behalf ofthe petitioners ynder Order 16 Rule 1 read wifh Section 151 of fhe Code of Civil Procedure (heretnafter shaU be i-eferred to as 'fh.e Code'j for ./.- sumTnoniug fhe witoesses along wifh original records mentioned ia fhe appUcations. 3. Brief facts leadiug to fUiag of fhese writ petitious are tliat the petitioners liereia, who are students of Govemment PriLaiarv' School, Sutupali, have filed the above nientioned civil suits before fhe District Court, Raigarh for awardiitg coBipensation agaiiist flie respondents ou the ground fh.at on account of aegligence of the respondents fhe petitioners had suffered electric shock when they were ia school. After issuance of siiininons, the respondents herein have filed fheir written stateraent. On 5.2.2005 leamed District Judge fi-amed issiies arisiag out of fhe pleadtags of fhe parties and on that day itsetf counsel for both tiie parties orally subm.itted that each of fhe party wants to examine fi.ve witaiesses, fherefore, fhe petitioners were directed to file aJEEdavit as per urovisions of Order 18 RzUe 4 of the CPC. Adiuittedly list of witnesses have not been filed by fhe parties. On 03.08.2005 applications luider Order 16 Rule 1 read wifh Section 151 offlie CPC were filed on behalf of ftie petitioners in fheir re:spective suits for suinm.oniag the witnesses along wittl original records nauied ui fhe said appUcations. Reply of fhe said appUcations was filed on behalf of fhe respondents. Leanied District Jiidge vide impugned orders rejected the applications of fhe petitioners on fhe ground that as no list of witnesses has been filed bv tlie petitioners, therefore, they are not entifled to siimmon the witaiesses, as fhe provisions ofOrder 16 Rules 1 & 1A oftlie CPC are subject to sub-rule (3), tiierefore, witaesses caiuiot be siiitLm.oned, ,-———— 4. Retiinis of these petitions have not been filed on behalf of the respoudents. 5. I have heard learaed counsel for fhe parties. 6. Shri M,K. Bhaduri, leanied counsel for the petitioners argued that the prayer for sumumonm.g the witaiesses was m.ade because all the witaesses are goveinruent eiaployees aad docuiuents are part of goveminent record aad as the same ai-e not withia the power & control of petitioners, fherefore, tlie learaed District Judge ought to have sum.m.oned fhe.se witnesses along with record. He further argued tijat siace soiue offh.e docuiiients were kept in the office of petitioners' earUer counsel namely Shri. Ashok Mishra, Advocate, who has been prosecuted by the State in a criiuiaal case aad has been in. judicial custody, therefoi-e, petitioners were not ui a position to subuiit those docunients. As such, ia the given situation, the petitioners were left with no option but to sum.nion fhe goverainent witnesses and records, which are ineiitioned ui fhe said appUcations. Accorduigly, tli.e petttioners have been able to show sufficient cause for suiaiiioiiiug witiiesses aiid docuineats. 7, On the other haad, ShriAbhishek Sinha, leamed counsel for the respondents opposed the writ petitions aiid supported the orders passed by fhe leamed District Jiidge, Raigarh, 8. Haviag heard learaed couusel for fhe parties, I have penised the im.pugned oi-ders, ofher records and also the appUcations filed by the petitiouers before learaed District Jiidge, Raigarh. 9. Iu order to appreciate the controversy as to inteqiretation of the provisions of Order 16 Rule 1 sub-rules (1) to (3) aad Rule 1A, it would be profitable to have a glauce to the scheme of Uie Code wifh regard to the suianioniag and attendaace of fhe witnesses. The provisions of Section 30 of flie Code provides that "subject to sudi conditions and lim.itations as inay be pt'escribed, at any time eiih.er of iis own motion or on ihe applicaiion of any party- (b) issue smnm.onses to persons ivhose attendance is required either to give evidence or to produce documente or such other objects as aforescdd; (c) order any fact io be proved by affidavif Rule 1 of Order 16 deals witli list ofwitaesses aad SUIUBIOIIS to witaiesses which conteniplates that "on or before such dafe as the Court jnay appoint, and not laier ihanfifteen days afier the date on which the issues are seitled, ihe parties sha.il present in Court a Jist of witnesses whom ihey propose to caU either to give evidence or io produce docwnen'fs and obtain summonses to suc/i persons for iheir aitendance in Court.' Sub-rule (2) entiUes a party to obtaiii siirnmons for the attendance of aay person by filin.g an appUcation witli fhe piirpose for which ti.ie witaess is proposed to 1 be suirunoned. Sub-rule (3) provide that "the Court may, for reasons fo be reoorded pennit a pariy to call, whether by summoning through Ccurt or oihenvise any witness, other than those whose ncanes appear in ihe Kst referred to in svb-rule (1), if such pwty shows suffident cause for the ornission to mention the name of such witness in the said Ust' Rule 1A entitles a part}- fhat "subject to the provisions ofsub-rzile (3) ofrule 1, any part.y i.o t)ie sutt mav, tuithout applvina for summons under rule 1, bring anv witness to yive evidence or to produce documents." Riile 7 aufhorizes fhe Court fhat ° any person present in Court may be. required by the Court io give evidence or to produce any docwneni then and there in his possession orpower.' Rule 14 empowers the Court to examine any person iiicluding a paity to the siiit aad uot called as a witness by a party to the suit, when it thinks necessan'' aad fhe Court niay, of its own inotion, caiise such person to be suminoned as a witness to give evidence or to produce any docuiaent in his possession, on a day to be appointed, and may examine him as a witness or requu~e hini to prodnce such document. Therefore, Sub-rule (1) of Rzile 1 of Order 16 of the Code provides that 'parties shall presenl a list of ivitnesses ivhom they propose to call either to give evidenoe or w produced documents, on w before such daie, as the Couri may appoint, and not later thanfifteen days after the date on ivhich i.he issues are settled. Fifteen days is ihe outer liinii. fixed by ihe Legislature for s-ctbinission of the lisi of witnesses after settleineni ofthe issues' Sub-rule (2) makes a provision tliat in case a parU- is desirous of obtauung aay suiiunons for fhe attendaiice of any person it shall fQe an application stating therem the puipose for which fhe witnesses are proposed to be sum.iu.oned. Sub-i-ule (2) would be attra.cted when siuninons are obtained by fhe party. Sub-nile (3) provides fhat where the names of fhe witaesses have been omitted ia the list submitted under sub-nile (1), then fhe Court ruay pennit a party to call fhose witnesses, if tlie party shows suf&cient cause for fhe oiuission of tlie names of fhe witaesses aad whUe permittuig tiie party to catl such witnesses fhe Court is reqiured to record reasons. Rule 1A empowers a party to the suit to bi-uig any witaess to give evidence or to produce documents, wifhout obtaming aay summons, biit fhis right has been subject to fhe provisions ofsub-rule (3) ofRule 1, ^o. A 10. Now ttie question which has been posed by learaed District Judge while rejectmg the appUcations ofthe petitioners fhat as no Ust of witnesses has been filed by the petitioners and 'Rvle 1A. is szibject to sub-rule (3), fherefore, fhe petitioners are not entitled to suinnion any of the witaiesses or dociiiueats, it is true that no specific provision has been made iinder fhis rule tliat where no Ust of witaesses has been ialed by a party even then on showiu^ sufEcient cause by inoving an application part'/ caii suaiiuon fhe witaesses. In fhe given situation, we have to interpret the urovisions of sub-nries 1 to 3 of Order 16 Rule 1. In this connection, now we niay consider the principles, which guide fhe iaterpretation ofprocedural laws. ll.In fhe matter of Si reported ia AIR observed as under: , fhe Hon'ble Apex Court has "Now a code of procedure must be regarded as such. It is 'procedure, soiaethiag designed to facilitate justice and further its ends, not a penal enactaaent for punishineut and penalties; not a fhing designed to trip people up. Too technical a construction of sections that leaves no room. for reasouable elasticitv' of in.terpretation should fherefore be guarded agamst (provided atways fhat justice is done to both sides) less fhe very inean.s designed for the furtherance ofjustice. be used to finstrate it." "Next, thiere must be ever present to fhe miud fhe fact fhat our laws of procedure are grounded on a prmciple of natm-al justice which reqitires fhat men @ shoiild not be condenined luiheard, that decisions should . not be reached beliiud their backs, that proceedings that affect their lives aiid property shoidd not contiaue ia their absence aiid that fhev should not be precluded fi~om participatuig ta tlieni. Of course fhere inust be expectations and where thev are clearlv defined tliev laust be given eSect to. But taken bv and large, and subject to that proviso our laws of procedure should be constnied, wherever tliat is reasonably possible ia fhe Ught ofthat principle." 12, lu fhe matter of State of Qajarat V. Raniprakash P. Puri reported iii 1970 that: (2) SCR875 the Hon'ble Apex Court has held " Procediire has beeu described to be a haiid-inaid and not a inista-ess of law, inteaded to subseive aiid faciiitate fhe caiise of justice aad not to govem or obstruct it. Like aU rules of procedure, this rule deinaads a constnictLon which would proinote this cause" It is useful to quote fhe oft-quoted passage of LOJ Peazance m 1879 (4) AC 504: "Procedure is but fhe Diachiaeiy of fhc law after aU the cliannel aad ineans wherebv law is admmistered aud justice reached. It strongly departs froin its ofEice wlien iil place of facilitatilig, it is penuitted to obstn.ict and even extinguish legal rights, aad is thus made to iovem. when it ought to subserve. _..- -—-' It is also useful to reproduce fhe passage ofjudginent in the case of Balwant Singh Bhagwansingh Vs. Firm. Raj Singh Baldev Kishen reported ia AIR 1969 Punjab & Haryaaa 197: "Proinptitude and dispatch ia fhe dispensation of justice is a desirable thiag but not at the cost of justice. AU rules of procedure are nofhuig but haadniaids of justice. They cannot be construed in. a inaan.er, which v.'ould hamper justice. As a general rule, evidence should never be shut out. The fuUest opportuiiity should always be given to fhe parties to iive evidence if fhe justice of the case requires it. It is iinmaterial if the origiaal oiuission to give evidence or to deposit process fee arises froia iiegligence or carelessness. 13. T'he Hon'ble Apex Court in. the laatter of Manlhrao reported ia AIR. 1999 SC 1441 while m.terpretiug the provisions of Order 16 sub-rules (I to 4) of Rule 1 summarized fhe legal position ia paragraphs 30 & 31; "30. These two Rules read togetiier clearlv mdicate that it is open to a party to suiainon fhc witaesses to the Court or may, wifhout applying for siimmons, bring the witnesses to give evidence or to produce dociunents. Sub- rule (3) of Rule 1 provides that although the name of a witness niav not find place in the Ust ofwitaess filed by a party ia the Court, it may aUow fhe party to produce a witaess fhough he mav not have been suiumoned ttirough the Coiu-t. Rzile 1A which was introduced bv tlie Code of Civfl Procedure (Amendment) Act, 1976 wifli effect n-Qm- 1-2-1977 has placed fhe Diatter beyond doubt by providiag ui clear aad specified terms that any pai-ty to fhe suit inay bring aay witness to give evidence or to produce docuinents, Since this Rule is siibject to the provisions of sub-rule (3) of rule, atl that can be contended is fhat before proceeding to examiiie aay witness who niight have been brought by a party for that purpose, fhe leave of fhe Court inay be necessary but this by itselfwill not m.eaa that Rule 1A was ia derogation of sub-rule (3) of Rule 1. The whole position was explained by this Court m Maage Ram V Brij Mohaa, AIR 1983 SC 925: (1983) 4 SC 36; (1983) 3 SCR 525, ia which it was held that sub-rule (3) of Rule 1 aad Rule 1A operate ui bvo difFerent areas aud cater to Uvo different sitiiations. It was held (para 10 ofAIR): - There is no ianer contradiction between sub-i-ule (1) ofRule 1 aad Rule 1A ofOrderXVI. Sub-mle (3) of Rule 1 of Order XVI confers a wider iurisdiction on the Court to cater to a situation where the partv has fafled to name the witoess ia tlie list and vet tlie party is unable to produce him or her ou his owii under Rule 1A aad ia siich a siti.iation the part}r of necessity has to seek fhe assistaace of fhe Court under sub-rule (3) to procure the preseace of the witness and the court, may if it is satisfied that the party has sufticient cause for the oiaission to laention fhe naine of such witness iu the Ust filed under sub-rule (1) of Riile 1, the court may stfll extend its assistance for prociulug th.e presence of such a wituess bv issuing a sumiuons fhrough fhe Court or otherwise which ordiuaiilv tlie Court would not extend for procunng £he attendance of a witness whose name is aot shown ia the list. Therefore, sub-rule (3) of Rule 1 aad Rule 1A operate ia two different areas aad cater to two different situations.' 31. In view of fhe above, even though the name of Defendaat No.2 was uot nientioned in fhe list ofwitaesses fumished by fhe plamtiff, he was properly examin.ed as a witiiess aad his testunony was not open to aay criticism on the gTound that he was produced as a witness witlioiit being siuainoned fhrough tlie Court smd wifhout his name being uientioned ia the list ofwitaesses." 14.The High Court of Kaniataka in the matter of Rehmaa Hussain V. Althaf Hussaia and another reported ia AIR 2004 Karaataka 173 has held that: "....iffhe provisions of sub-rule (1) is read wifh fhe provisious of sub-rule (3) conjoinfly, it caii be seen fhat in a case where a pai-ty has not ffled Ust of 1'ritaesses at aU or where he has filed a Ust of witnesses but has not iacluded names of all witnesses, his right to seek pei-mission of the Court under sub-rule (3) to call aay witaess, is not taken away. The woi-d, "any witaess" should be given natural and fuU. Bieaitmg aad such a course would also advance the cause ofjiistice. The word aiiy in ^. 11 ordinar}7, literal parlance rueaiis 'each aiid every', in other works, without any exception." 15, If we look into the provisions of Rule 1 of Order 16, a clear cut provision has not beeu raade in respect of fhe situation where no Ust ofwitaesses at ail has been filed by a party, whefher hi that case fhe part}r is entitled to suminon a witaess or docuiaent or laay bring fhe witaess or document himself/herself. But, it is also clear fhat ia RiUe 1 of Order 16 a clear cut prohibition has also not been m.ade fhat if aay party faits to fUe fhe list of witnesses as envisaged luider Rule 1 of Order 16 then the party wfll not be entifled to seek leave. of fhe Court by filmg aa appUcation even showing sufEcient cause to sum.m.on aay witaiess. It does aot impose an einbargo on fhe power ofthe Court to siunmon fhe witness or docuraent, as fh.e case may be. 16.The Hon'ble Apex Coui-twhile uiterpretuig the provisions ofOrder 8 Rule 1 of fhe Code ia the inatter of others reoorted ia 2005 AIR SCW 2346 held that: "The provisious of 0.8, R.l fixmg tiiae schedule for filiug of written statement are directory and not mandatory. The purpose of providing fhe tiine schedule for filiae the written stateinent under O. VIII, R. 1 of CPC is to expedite and not to scutUe the heariiig. The provision speUs out a disabi!it\r on tlie defendaiit. It does not impose an embargo ou the power of the Court to extend the tim.e. Though, the laaguage of tlie proviso to R. 1 of O.VIII of CPC is couched in negative foi-in, it does not specih- aay penal consequence flowing from fhe non-compliaiice. ~) 12 (^ The provision being in fhe doinaui of the procedliral law, it has to be held directory aud not raartdator','. The power of fhe Court to extend time for filing the written statenieat beyond fhe timp. schedule provided by O.VIII, R.I of the CPC is not completely taken away, As the said provision is a part of procediu-al law aad hence directoiy, keeping in view the need for expeditious trial of civil causes which persuaded tlie Parliajnent to enact the provision ia its present form ordinarilv the timie schedule contaiued ia tlie provision is to be foUowed as a n.Ue and departure tlierefrom should be by way ofexception." 17. The above observations were rnade by fhe Hon'ble Apex Court while uiterpretiag fhe provisions of Rule 1 of Order 8 of tlie CPC whetlier fhe court is entiUed to extend fhe tiine beyond 90 days for fUiag written statement, which has been provided as a niaximuin tiiae to file written stateiaent. The Court lield fhat law beiag procedural and ui exceptional cases the court is uot debprred from. extendiag the tiiue beyond 90 days, which has been fixed under Rule 1 of Order 8. Similarlv, ia the matter of ialem Advocate Bar Associatiou, Tamil Nadu V. Uaion of india reported in 2005 AIR SCW 3827 fhe Court held fhat; "The question is ivhether the Cawt has any power or jurisdiclion io extend the period beyond 90 days. The m.axhnum period of 90 days to file written statement has been provided but ihe consequences on failure to file turitten s'tatemerd within the. said period have not 13 been provided for in Order VSI Rule 1. The rules in question to advance ihe cause of justice wid not to defeat it. Th.e rules ofprocedure are made to advance the cause ofjustice and not defe.ai it Constr'uction of the 1'ule or procedure which promotes fustice and prevents Tniscmriage has to be prefeired. The iziles or procedure are handinaid of rustice and not its mistress. In the present coniext, the sirict interpretation would defeai justice. IS.The above priaciple should guide the Courts, while uitei-pretrag fhe procedural laws. The object of fhe Legislature in iiitroducin^ Rule 1 & Rule 1A appears to be speedy disposal of the cases and it does not appear to be the object behuid Rule 1 to deprive a parhr to exainuie wituesses, if he has failed to subinit the list of -witnesscs. By puttuig an uitei-pretation tliat ia fhe abseace oflist of witnesses no witness csm be examined euid the Court is powerless to peirait a party to examine its witnesses, even when it shows sufficient cause for aot filing fhe Ust ofwitaesses, it would ammint to imposing procedural t}rranny aad tlirottling course of justice, which could not have beeii the uitention ofthe legislature. WIien the courts have been coiiferred with uowers to exa-miae ssxv witness present ia court uader Rule 7 or to examiae or sutninou any witness iinder Rule 14 aud Section 30(b), then m fhe tight of tlie powers under Section 30(b), Rules 7 aud 14 ofOrder 18, RiUe 1 is required to be iaterpreted. Section 30(b) Rules 7 & 14 of Order 18 cleaiiy indicate th.at tlie coilrts primarily exist for dispeusmg real aad substaiitial justice aud if they are to isrpart only techiucal justice, the court will never require to examiae aiiy 14 witaess oftheir own accord. Powers under Section 30(b), Rules 7 aud 14 have only been conferred witll a vicw to impart justice to the parties. 19.As has been held by fhe Hon'ble Apex Court in. tlie above cited cases while iaterpretuig the procedural laws too technical, too rigid aad too stfict, a view is not required to be takeu, uiiless the. legislature coiupletely deprives the CoTlrt fi-oni fhe exercise of Uie discretionan' powers. The rules of procedure are inade to advaiice the cause of justice aiid not to defeat it and the construction of rule or procedure, which proiuotes justice and prevents nuscarriage has to be preferred. The rules or procedure are haadinaid of iustice aiid not its niistress, tlie natural aiid purposeful & meauiugful meaaiag should be given to t5ie words aiid such a course would also advance the cause ofjustice. Sub- nile (3) ia au un-mistakable term provides that a part\- with the pemiission of Court can call aay witness and exaiarae siicli witaiess in support ofhis case. The words 'other than those whose names appear in ihe Hsi referred to in sub-rule (l/ occun-ing in sub-rule (3) are lueaiit only to highUght the obvious position that with regard to fhose witnesses whose nam.es are already mcluded in the Ust ofwitnesses filed uiider sub-nile (1) ofRule 1, seekm^ permission of the Court to examine such witnesses wffl never arise or is unnecessary. That phrase does not io. aiiy way restrict or tunit the power of the Court luider siib-rule (3) to permit any party to call any witness and examine him in support of his ca.se, of course, onlv on showing sufficient cause as to why he has not included the name or names of siich witness/witnesses ic. the Ust of witnesses atready filed by him or why he could not file the list .^' 15 of witaesses at aU wifhin fhe stipulated tiine of 15 days after the date of setdeinent ofissues. 20. In the light ofabove law on fhe subject, ifwe look into the facts of the present case, oa the date when the issues were JT£tmed counsel for both the parties had orally subuiitted fhat each of fhe part}r wSl exaaiuie fi.ve witnesses. In fhe applications filed uiider Orier 16 Rule 1 read with Section 151