C.R. No.6901 of 2010 (O&M) -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.6901 of 2010 (O&M) Date of decision:29.10.2010 Subhash ...Petitioner Versus Smt. Shanti Devi and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Ajay Jain, Advocate, for the petitioner. ***** RAKESH KUMAR JAIN, J. The petitioner has assailed the validity of order dated 04.10.2010 passed by the learned Civil Judge (Junior Division), Narnaul by which an application filed by the petitioner/defendant No.2 under Order 16 Rule 1-A of the Code of Civil Procedure, 1908 [for short “CPC”] has been dismissed. Indisputably, the evidence of defendant Nos.2 and 3 was closed vide order dated 24.04.2007, which reads as under: - “No PW is present. Adjournment sought. However, it is made clear that defendants No.2 and 3 have already availed numerous opportunities including two last opportunities, but failed. Therefore, I do not find it justified to adjourn the case further for the same. Resultantly, oral evidence on behalf of defendant Nos.2 and 3 is closed by court order. Defendants No.2 and 3 shall produce persi admissible documents, if any, on 04.06.2007 otherwise for rebuttal evidence, if any and for C.R. No.6901 of 2010 (O&M) -2- **** arguments.” After the aforesaid order was passed, an application was filed by defendant Nos.2 and 3 before the same Court for allowing them an opportunity to produce their evidence. In the said application, it was averred that due to wrong noting of date as 26.04.2007 instead of 24.04.2007, evidence could not be led on that date and hence, it was closed by order of the Court. The learned Trial Court allowed the said application by its order dated 03.09.2009 by passing a peremptory order. The operative part of the aforesaid order is as under: - “In view of these facts and circumstances, the application is allowed and the applicants are given one opportunity only to produce only those witnesses which were summoned earlier for 26.04.2009 only.” Indubitably, the witnesses, namely Hukam Chand Yadav, Rajesh Kumar Sharma, Banwari Lal Sharma, Singh Raj Deed Writer, Ahlmad in the Court of Shri Mewa Singh learned Civil Judge (Senior Division), Narnaul and Ram Sharan Lumberdar, resident of Akoli, were summoned for 26.04.2007. On 27.10.2009, when the case was fixed for evidence of defendant Nos.2 and 3, for which the permission was granted by the learned Trial Court vide its order dated 03.09.2009, the statement of four witnesses was recorded and as the Court time was over, the case was adjourned for recording of the remaining evidence to 28.10.2009. On that date, i.e. 28.10.2009, the present application was moved by the petitioner under Order 16 Rule 1-A of the CPC seeking leave of the Court for recording of the statement of defendant Subhash S/o Ram Karan and Ram Karan S/o Sampat Ram. The said application has been dismissed by the learned Trial Court vide its impugned order on the ground that the case was adjourned to 28.10.2009 for the evidence of remaining witnesses, namely, Banwari Lal Sharma, Advocate and Rajesh Sharma, Advocate. On the said date, Banwari Lal Sharma was present and examined, whereas C.R. No.6901 of 2010 (O&M) -3- **** Rajesh Sharma was not present. The petitioner wanted to examine himself as well as one Ram Karan who were not ordered to be examined by the per-emptory order dated 03.09.2009 and also on the ground that the case being oldest one of the year 2000, in which the evidence of the defendant/petitioner was closed as far back as on 24.04.2007, the leave could not be granted. Learned counsel for the petitioner has argued that even if the witnesses sought to be examined were not in the list of witnesses, but once they were present in the Court, they should have been allowed to be examined by granting leave under Order 16 Rule 1-A of the CPC. In this regard, he has relied upon a decision of this Court in the case of M/s Preet Cold Storage and Ice Factory, Khamano Mandi, Ludhiana and another Vs. M/s United Commercial Bank, Sangol Ludhiana and others, 1989(1) P.L.R. 180. I have heard learned counsel for the petitioner and perused the record with his assistance. Before referring to the arguments raised by learned counsel for the petitioner, it would be worthwhile to mention the Rule of the CPC which has been invoked: - “Order 16 Rule 1-A 1-A. Production of witnesses without summons. -- Subject to the provisions of sub- rule (3) of rule 1, any party to the suit may, without applying for summons under rule 1, bring any witness to give evidence or to produce documents.” In order to appreciate the import of Order 16 Rule 1-A of the CPC, Order 16 Rule 1 is also required to be considered, which is reproduced as under: - “Order 16 Rule 1 1. List of witnesses and summons to witnesses. -- (1) On or before such date as the Court may C.R. No.6901 of 2010 (O&M) -4- **** appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court. (2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. (3) The Court may, 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. (4) Subject to the provisiones of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the [Court in this behalf within five days of presenting the list of witnesses under sub-rule (1)]. Order 16 Rule 1 of the CPC provides that on or before a date which is fixed by the Court, which is not later than fifteen days after the issues are framed, the parties shall present in the Court a list of witnesses whom they wanted to produce for the purpose of oral evidence or for the purpose of producing documents and may obtain summons for their attendance. The party, who desires the attendance of a person as a witness, is required to file an application stating the purpose for which the witness C.R. No.6901 of 2010 (O&M) -5- **** is proposed to be summoned. Thereafter, the Court may, for the reasons to be recorded, permit a party to call, whether through Court or otherwise, any witness. However, as per Order 16 Rule 1(3) of the CPC, the Court may also permit a party to call a witness, whether through Court or otherwise, who is not named in the list referred to in Order 16 Rule 1(1) of the CPC, if sufficient cause is shown for the omission of mentioning of the name of such a witnesses in the said list. Rule 16 Rule 1-A was added with a reason to enable a party to the suit to bring any witness to give evidence or to produce any document, without obtaining summons as required under Order 16 Rule 1(1) of the CPC. The question involved in this petition is as to “whether the provisions of Order 16 Rule 1-A of the CPC can be invoked by the petitioner when there is a peremptory order passed by the learned Trial Court on 03.09.2009 which had attained finality”. The answer is emphatic “no”. The judgment relied upon by learned counsel for the petitioner in the case of M/s Preet Cold Storage and Ice Factory, Khamano Mandi, Ludhiana and another (supra) is also of no help because in that case, the evidence of the plaintiff was going on, when along with other witness, he brought one R. Krishanan, an Engineer, and Sukhdev Chand, their Accountant, to appear and the said witnesses were not the cited witnesses, but this Court had held that even if the witnesses were not cited in the list initially, but if they were present in the Court on the date the evidence of the plaintiff is being recorded, they should have been allowed to be examined. I am afraid that the facts of this case are totally different from the facts of that case because in the present case, evidence of the petitioner was closed by order of the Court on 24.04.2007 and on showing a cause that due to wrong noting of the date as 26.04.2007, the evidence could not be brought, the Court had granted one opportunity to the petitioner to produce only those witnesses who were summoned earlier for 26.04.2007 and have been named specifically and out of them, four witnesses were examined on 27.10.2009 and the case was adjourned to 28.10.2009 for the C.R. No.6901 of 2010 (O&M) -6- **** purpose of examination of remaining witnesses. The petitioner cannot, therefore, be allowed to take the said opportunity to circumvent the order dated 03.09.2009 by moving the present application under Order 16 Rule 1-A of the CPC. The best course open for the petitioner was to move an appropriate application before the learned Court below for modification of the order dated 03.09.2009, if he wanted the other witnesses also to be examined or should have challenged the said order by way of revision petition before this Court, but once a conditional order has attained finality, the learned Court below had no jurisdiction to tinker with it. In view of above discussion, I do not find any error in the exercise of the jurisdiction by the learned Court below and hence, the present revision petition is dismissed in limine. No costs. October 29, 2010 (RAKESH KUMAR JAIN) vinod* JUDGE