RESPONDENT: BRIJ MOHAN AND OTHERS DATE OF JUDGMENT03/08/1983 DESAI, D.A. DESAI, D.A. REDDY, O. CHINNAPPA (J) CITATION: 1983 AIR 925 1983 SCR (3) 525 1983 SCC (4) 36 1983 SCALE (2)63 ACT: Code of Civil Procedure, 1908O. XVl, rs. 1 and 1A Trial of election petitionRight to bring any witness, without applying for summons, for examination under r. 1A Scope ofCan court decline to examine witnesses kept present by party on the sole ground that their names have not been set out in the list filed in compliance with r. 1? HEADNOTE: Subr. (1) of r. 1 of O. XVI, Code of Civil Procedure, 1908 casts an obligation on every party to a proceeding to present a list of witnesses whom it proposes to call and to obtain summonses to such persons for their attendance in court; subr. (2) requires that the party seeking such assistance from the court must make an application stating the purpose for which the witness is proposed to be summoned; and subr. (3) confers a discretion on the court to permit a party to summon through court or otherwise any witness other than those whose names appear in the list submitted under subr. (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. Rule 1A of O. XVI enables a party to bring in any witness without applying for summons under r. 1 but this enabling provision is ' subject to subr. (3) of r. 1. Rule 22 of the "Rules of Procedure and Guidance in the matter of trial of Election Petition under Part Vl of the Representation of the People Act, 1951" of the Punjab and Haryana High Court merely reenacts subrs. (1) and (2) of r. 1 of o, XVI, C.P.C. Subs. (1) of s. 87 of the Representation of the People Act, 1951 makes O. XVI, c.P.c. applicable to the trial of election petitions and the proviso thereto gives the High Court the discretion to refuse to examine any witness if it is of the opinion that the evidence of such witness is not material or that the party tendering such witness is doing so on frivolous grounds or with a view to delay the proceedings. The appellant, who was the petitioner in an election petition, had filed an application seeking permission to produce and examine witnesses whose names were set out in the application and the court had passed appropriate orders thereon. When the court was recording the evidence of the appellant he submitted another list of witnesses whom/he had kept present in the court for being examined, but the court rejected the same for two reasons. (i) that the appellant had not mentioned their names in the application made by him earlier; and (ii) that there was no mention of the purpose for which they were being offered for examination. The appellant challenged the validity of the Court's order. 526 Allowing the appeal, ^ HELD: It is obligatory on the party to a proceeding to file the list of witnesses with the gist of evidence and to make an application for issue of summons as provided in sub rs. (1) and (2) of r. 1, O. XVI only where the party wants the assistance of the court to procure the presence of witnesses; but where the party is in a position to produce its witnesses without the assistance of the court, it can do so under r. 1A irrespective of the fact whether the names of such witnesses are mentioned in the list or not and the court cannot decline to examine them unless it proposes to act under the proviso to subs. (1) of s. 87 of the Representation of the People Act, 1951. [531 GH, 532 A] (i) The obligation to file a list of witnesses with the gist of evidence of each witness within the time prescribed under subr. (1) of r. 1, O. XVI is in respect of those witnesses to procure whose presence the assistance of the court is necessary. And, this ought to be so because the court wants to be satisfied about the necessity and relevance of the evidence of such witness whose presence will be procured with the assistance of the court. If mere omission to mention the name of a witness in the list envisaged by subr. (1) of r. 1 would enable the court lo decline to examine such a witness, r. 1A would not have omitted to mention that only those witnesses kept present could be examined whose names are mentioned in the list envisaged by subr. (1) of r. 1 and who can be produced without the assistance of the court. The marginal note of r 1A reads: "Production of witnesses without summons" and the rule proceeds to e