HON’BLE SRI JUSTICE V. ESWARAIAH C.R.P.No. 4054 of 2010 Date: 18-03-2011 Between: Padmanabham Suribabu and others …….Petitioners and Voodikala lakshmana Rao and others ……….. Respondents HON’BLE SRI JUSTICE V. ESWARAIAH C.R.P.No. 4054 of 2010 ORDER: This Civil Revision Petition is filed against the order, dated 09- 08-2010 passed in I.A.No.759 of 2010 in O.S.No.94 of 2006 on the file of the IV Additional District Judge, Visakhapatnam. The petitioners herein are defendants 1 to 6 in the suit filed by the respondents herein in O.S.No.94 of 2006 on the file of the IV Additional District Judge, Visakhapatnam, seeking declaration of title. In the said suit, the petitioners filed I.A.No.759 of 2010 under Order 16 Rule 1 of C.P.C. on 27-02-2010 i.e., four years after filing of the suit, for summoning one Padarthi Jagannadharao, Managing Partner, Rao & Rao Constructions to produce 1) original sale deed, dated 20-04-2006 executed by Kota people in favour of D-1 to D-6, 2) gift deed, dated 24-02-1902 executed by Tiyyala Suryanarayana in favour of Kota Narasimhaswami in respect of the schedule mentioned property, and 3) agreement to sell-cum-general power of attorney executed by D-1 to D-6 in favour of the said Jagannadha Rao and to give evidence as a witness on behalf of D-1 to D-6. The reasons stated by D-1 to D-6 for summoning the said three documents as well as the said Jagannadha Rao are that they purchased the suit schedule property from Kota people under a registered sale deed, dated 20-04-2006 and the Kota people got the property long back in 1902 under a registered gift deed, dated 24-02- 1902. After purchase of the said property, D-1 to D-6 have executed an agreement to sell-cum-general power of attorney in favour of Rao and Rao Constructions, Visakhapatnam, represented by its Managing Partner Padarthi Jagannadha Rao, for a valid consideration and at the time of executing the agreement to sell- cum-general power of attorney, dated 23-11-2007, the original registered sale deed, dated 20-04-2006 obtained by them and the unregistered gift deed, dated 24- 02-1902 executed in favour of their vendor, were handed over to the said Jagannadha Rao and therefore, he shall be summoned directing to produce all the aforesaid three documents and to give evidence in the suit. A counter affidavit was filed denying the averments made by D- 1 to D-6 in the affidavit filed in support of the application and further stating that D-1 to D-6 have neither cited the proposed witness in the list of witnesses as contemplated under Order 16 Rule 1 of C.P.C. nor sought for leave of the Court for examining such person, who is other than the persons mentioned in the list of witnesses, and therefore, the said application is not maintainable and liable to be dismissed. The Court below, after going through the contentions raised by both the parties and after verifying the relevant provisions, dismissed the application through the order, dated 09-08-2010 on the ground that under Order 16 Rule 1(3) of C.P.C., no doubt the Court is empowered to call for any witness other than the persons whose names appear in the list of witnesses under Order 16 Rule 1 of C.P.C., if the party shows sufficient cause for the omission to mention the name of such witness in the list. It is stated that no cause has been shown for not furnishing the name of the said GPA holder in the list of witnesses. But, however, admittedly the suit has been filed in 2006. Whereas the so-called agreement to sell-cum-general power of attorney is said to have been executed by the defendants in favour of Jagannadha Rao on 23-11- 2007, which is admittedly after filing of the suit. It is further stated that the petitioners sought for production of the documents through the said witnesses. The Court below further observed that under Order 16 Rule 6 of C.P.C., any person may be summoned to produce a document, without being summoned to give evidence; and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same, and in view of the above provision, the party seeking summons to a person to produce any document has to take recourse to Order 16 Rule 6 of C.P.C. but not under Order 16 Rule 1 of C.P.C. Further more, two prayers are sought in one application under the same provision, which objection raised by the plaintiff is tenable and as such, the petitioners are not entitled to the reliefs as sought in this application for summoning the proposed witness and for causing production of the documents from his custody. Heard both the learned counsel and perused the material on record. The learned counsel appearing for the petitioners relied on a judgment in ADDAGATLA NARENDAR v. SOME VIJAYALAKSHMI [1], wherein this Court, while placing reliance on various judgments, held that: “Unless statutory infraction is imperative, procedural technicalities not to defeat the substantial justice. Permitting let in of all admissible evidence is the general rule, rejecting thereof under specified circumstances to be an exception always. Liberal approach to lean in favour of doing substantial justice despite the procedural technicalities, may be highly essential in several of the cases lest the very justice delivery system will suffer in its working to the detriment of the litigant public.” The learned counsel for the petitioners also placed reliance on the judgment of this Court in M. DHANANJAIAH GOUD v. MOGUDAMPALLY CHANDRAIAH [2] and submitted that if the provisions of Order 16 Rule 1 of C.P.C. are complied with, the Court is bound to summon the witness. He further contended that the Court has discretion under Order 16 Rule 1(3) of C.P.C. to permit a party to summon a witness not mentioned in the list of witnesses to do complete justice if application is bona fide. The learned counsel for the petitioners further placed reliance on the judgment in ASHOK SHARMA v. RAM ADHAR SHARMA [3], wherein the Hon’ble Supreme Court upheld the Judgment of the High Court of Delhi allowing production of the document, which was rejected to be taken on file by the trial Judge, with the leave of the Court. It was observed that though the names of the witnesses are not shown in the list filed under sub-rule (1) of Rule 1, the party would be entitled to examine such witnesses and to produce the documents through them who are called to produce documents under Rule 1-A with the leave of the Court. On the other hand, the learned counsel appearing for the respondents contended that both the reliefs to summon the witness as well as to produce the documents cannot be allowed to be sought in one application and therefore, the Court below has rightly dismissed the application and there are no grounds to interfere with the same. In the instant case, admittedly the petitioner has not sought for leave of the Court for examining the said witness, whose name is not mentioned in the list of witnesses, and also for production of the documents. No doubt under Order 16 Rule 1 of C.P.C., the list of witnesses has to be furnished in the Court by the parties not later than 15 days after the settlement of the issues, whom they propose to call either to give evidence or to produce documents and obtain summons to such persons for their attendance in Court. Under Order 16 Rule 1(3) of C.P.C., the Court may, for the 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. The petitioners, who are D-1 to D-6, have not shown any cause much less sufficient cause as to why they have not cited any witness for production of the aforesaid three documents. Of course admittedly two documents are prior to the filing of the suit and one document i.e., agreement to sell-cum-general power of attorney is after filing of the suit. A person, who is in possession of such document after filing of the suit, is not only sought to be summoned, but also sought to be directed to produce all the three documents. As on the date of filing of the suit, the sale deed, dated 20-04-2006, which is said to have been obtained by the defendants, and also the gift deed, dated 24-02-1902, which is said to have been executed in favour of their vendor, are in the possession of defendants 1 to 6. No reason has been shown as to why the said documents are not filed and the list of witnesses to be summoned for production of such documents has not been furnished. Further, under sub-rule (1) of Rule 1, if sufficient cause is shown for omission to mention the name of such witnesses in the list, the Court can permit the party to call such witnesses. Under Order 16 Rule 1 read with Rule 1-A of C.P.C., any party to the suit is entitled to bring any witness to give evidence or to produce the documents. As contemplated under Rule 1-A, a person is a witness whose name is furnished under sub-rule (1) of Rule 1 of Order 16, but not a person whose name is not furnished thereunder. Therefore, the petitioners, who are D-1 to D-6, are required to seek leave of the Court not only for production of the additional documents but also for summoning of the witness whose name is not mentioned in the list of witnesses under sub-rule (1) of Rule 1. The petitioners have failed to show sufficient cause for omission to mention the name of the said person. Admittedly the petitioners could not have mentioned his name in the list of witnesses as the agreement to sell-cum-general power of attorney was executed one and half year after filing of the suit and therefore, it cannot be said that he is a subsequent agreement holder and he is required to be examined. However, he being the agreement holder of the defendants alone, it cannot be said that the defendants have no access or entitlement to get those documents and filed through them who are entitled to be examined in the suit. Therefore, for the aforesaid reasons, I am of the opinion that the above referred judgments are not applicable to the facts of the present case. In view of the above circumstances, the Court below has rightly dismissed the application and I do not see any reason to interfere with the order passed by the Court below. The Civil Revision Petition is, accordingly, dismissed. No order as to costs. _______________ V. ESWARAIAH, J Date: 18-03-2011 YCR [1] 2006 (3) ALD 94 [2] 2008 (4) ALT 227 [3] 2009(11) SCC 47