Citation Codes

Equivalent Citations

citation codes

Case Number

S.B Civil Regular Appeal No. 343 of 1958

Attorney(S)

R.P Goyal, for respondents
D.P Gupta, for appellant;

Judges

Mr. D.M. Bhandari

Acts

Rule 8 of Order XVI
25.7.1957, Rule 1

See more information ...

Smart Summary

Concise Analytical Summary of the Opinion (Bhandari, J.)

Factual and Procedural Background

The plaintiff-appellant sued for a perpetual injunction and for possession of a portion of land referred to as the chowk, which the plaintiff alleged to be joint property. Issues were framed on 15.1.1958 and the matter was adjourned for evidence on 17.3.1958.

On 20.1.1958 the plaintiff applied for summonses for six witnesses and deposited Rs. 25 for their expenses. On 17.3.1958 the defendants applied to close the plaintiff's evidence, asserting that the plaintiff had not filed a list of witnesses as mandated by Order XVI, Rule 1(i) of the Civil Procedure Code (C.P.C.). The plaintiff then made multiple applications: that eight named witnesses be examined, that the 20.1.1958 summons application be treated as a list under O.16 r.1(i), and that Prabhu Dayal (the plaintiff) who was present in court be permitted to give evidence.

The trial court rejected all the plaintiff's applications. It concluded that no list had been filed within thirty days from the settlement of issues under O.16 r.1(i) and therefore the plaintiff could not examine witnesses. The trial court also refused to exercise inherent power under Section 151 C.P.C. because of the specific provisions of O.16 r.1. The court ordered the evidence closed and proceeded to arguments.

The trial court entered a decree in favor of the plaintiff, relying on an already-on-record registered document, Exhibit 1, even though defendants did not admit it. The defendants appealed to the District Judge, Bharatpur, who held that Exhibit 1 was not proved, allowed the appeal and dismissed the plaintiff's suit without remanding the case for permitting the plaintiff to lead evidence. The plaintiff then filed this civil second appeal.

Legal Issues Presented

Whether the trial court erred in closing the plaintiff's evidence on the ground that no list of witnesses had been filed under Order XVI Rule 1(i) C.P.C., thereby denying the plaintiff the opportunity to lead witnesses who had been summoned and were present in court.
Whether Order XVI Rule 1(ii) C.P.C. (as amended by the Rajasthan High Court) permits the court to allow witnesses to be produced even where no formal list under Rule 1(i) was filed, and whether the trial court's strict application of procedure was warranted.
Whether the plaintiff's application dated 20.1.1958 for summonses could be treated as the list required by O.16 r.1(i), particularly where that application was made within thirty days from settlement of issues.
Whether Section 151 C.P.C. (the court's inherent power) could have been invoked to permit the plaintiff to lead evidence contrary to the trial court's strict reading of the amended rule.

Arguments of the Parties

Appellant's Arguments

The plaintiff applied on 20.1.1958 for summonses for six witnesses and paid expenses; that application should be taken as complying with Order XVI Rule 1(i) or, alternatively, the court should permit those witnesses to be examined.
The plaintiff filed subsequent applications on 17.3.1958 seeking permission to examine eight witnesses, requesting that the earlier summons application be treated as the required list, and asking that Prabhu Dayal (the plaintiff) then present be examined in court.
The appellant also urged that the court could exercise its inherent power under Section 151 C.P.C. to prevent injustice if the strict procedural requirement would otherwise bar the production of witnesses.

Respondents' Arguments

The defendants argued that the plaintiff had failed to file the mandatory list of witnesses under O.16 r.1(i) within the prescribed time and therefore the plaintiff should not be permitted to lead evidence; accordingly they applied for the plaintiff's evidence to be closed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sangram Singh v. Election Tribunal, Kotah (Supreme Court)	The principle that procedural codes are meant to facilitate justice and should not be interpreted so technically as to frustrate justice; courts should allow reasonable elasticity of interpretation provided justice to both sides is preserved.	The court relied on this passage to criticize the trial court's overly technical application of procedural rule O.16 r.1, observing that procedural rules must advance the cause of justice and should not be used to deprive parties of an opportunity to produce evidence.

Court's Reasoning and Analysis

The court first examined the text and effect of the amendment to Order XVI Rule 1 (as substituted by the Rajasthan High Court by notification dated 29.6.57, published 25.7.1957). The substituted rule contained four sub-rules:

(i) Each party must present in court, on such date as the court may appoint and not later than thirty days after settlement of issues, a list of witnesses it proposes to produce.
(ii) No party shall be permitted to produce witnesses other than those in the list except with court permission and on showing good cause; reasons must be recorded for granting such permission.
(iii) Parties may obtain summonses for persons whose attendance is required.
(iv) Where summonses have been obtained under the proviso to Rule 8 of Order XVI, re-issue of summonses is restricted unless specially ordered for reasons recorded in writing.

Although the suit was instituted on 13.7.1957, the court held it was governed by the amended rule because the amendment relates solely to procedure. The counsel for the plaintiff had acted under the pre-amendment formulation by applying on 20.1.1958 for the issue of summonses. When the point was raised on 17.3.1958, the plaintiff immediately moved to regularize his position by seeking permission to lead witnesses.

The court faulted the trial judge for refusing to permit examination of the witnesses who had been summoned and were present in court on 17.3.1958. The key legal reasoning points were:

Order XVI Rule 1(ii) vests discretion in the trial court to permit witnesses not named in a list to be produced, subject to good cause being shown and reasons being recorded. That discretion could and should have been exercised here to permit examination of witnesses who had already been summoned and were present.
Rule 1(ii) may be applied even where there is no list filed under Rule 1(i); the court's power to receive evidence remains unfettered and Rule 1(ii) is directed to ensuring that witnesses not in a list require permission, but does not remove the power to allow such witnesses.
An application for summoning six witnesses dated 20.1.1958 could itself have been treated by the trial court as a list under Rule 1(i) because it was filed within thirty days of the settlement of issues; thus there was no need to invoke Section 151 C.P.C. in order to permit the evidence.
The rules of procedure should be construed so as to advance justice; an overly technical approach that deprives a party of the opportunity to lead evidence is to be avoided. The court cited Sangram Singh to emphasize that procedural rules are vehicles to facilitate justice, not to trip parties up.
The trial court's additional rationale — that permitting the plaintiff to give evidence would prejudice the defendants because they had not filed their lists — did not justify mechanically denying the plaintiff the right to produce evidence; the court could have, and should have, adopted a liberal approach to permit both sides an opportunity to produce evidence or permit rebuttal evidence as needed.

On these bases the appellate court concluded that the trial court had erred in closing the plaintiff's evidence and in refusing to exercise the discretion afforded by Order XVI Rule 1(ii) (or to treat the summons application as a compliant list under Rule 1(i)).

Holding and Implications

Holding:

The appeal is allowed. The judgment and decree of the learned District Judge, Bharatpur, dated 10.10.1958 are set aside, and the case is remanded to the trial court for enabling the parties to produce their evidence and for decision in accordance with law, keeping in view the observations of this Court. Costs incurred so far shall abide the result.

Implications:

Direct effect: The matter is remitted to the trial court so that the plaintiff (and the defendants as appropriate) may produce evidence that was improperly excluded. The previous dismissal of the plaintiff's suit by the District Judge (for lack of proof of Exhibit 1) is set aside so that the trial court can re-open evidence and proceed in accordance with this opinion.
No broader new precedent beyond the application and interpretation of Order XVI Rule 1 (and the admonition against overly technical constructions of procedural rules) is expressly proclaimed in the opinion. The court's decision emphasizes application of Rule 1(ii)'s discretion and that procedural rules should operate to facilitate justice rather than frustrate it.

Note: This summary is based exclusively on the text of the provided opinion and does not add or infer facts beyond those contained in that text.

Show full summary ...

Prabhu Dayal v. Girraj Kishore

Bhandari, J.:— This is a civil second appeal in a suit for grant of perpetual injunction and for possession of the land of the chowk which according to the plaintiff-appellant was joint.

2. The main grievance of the plaintiff-appellant is that the trial court had wrongly closed his evidence. In order to appreciate this contention, it is necessary to refer to the following facts: In this case, the issues were framed on 15.1.1958 and the case was adjourned to 17.3.58 for the evidence of the parties. On 20.1.1958 the plaintiff applied that the summonses be issued to the six witnesses referred to in that application. He also deposited Rs. 25/- for the expenses of the witnesses. On 17.3.1958 an application was filed by the defendant-respondents that the plaintiff had not filed a list of witnesses as required by O. 16, r. (i) of the Civil Procedure Code and the evidence of the plaintiff be ordered to be closed. On this, the plaintiff filed an application that eight witnesses referred to in that application be examined on his behalf (see page 125D of the record). Another application was filed that the list of the witnesses filed on 20.1.58 may be treated as one filed under O. 16, r. 1(i) C.P.C Yet another application was filed that atleast Prabhudayal plaintiff who was present in court may be examined. All the applications filed by the plaintiff were rejected by the trial court. The court held that as no application giving the list of the witnesses had been filed under O. 16, r. 1(i) within 30 days from the settlement of issues, the plaintiff could not examine any of the witnesses. The other application for treating the application for summoning the witnesses as an application giving the list of the witnesses was rejected on the ground that application was under O. 16 r. 1(ii). It was argued before the learned Judge of the trial court that the court may exercise its inherent power under sec. 151 C.P.C but the court held that as there was specific provision in O. 16 r. 1(i) C.P.C the inherent power could not be invoked contrary to it. The third application for producing Prabhu Dayal plaintiff as a witness was rejected on the ground that his name did not find mention even amongst the witnesses sought to be summoned. The defendants had also not filed the list of the witnesses. It was observed that giving an opportunity to the plaintiff to produce his evidence will be to the prejudice of the defendants as they had not filed the list of witnesses. The evidence of the parties was, therefore, ordered to be closed and the case was fixed for arguments. The case was argued and it was the good fortune of the plaintiff that it was decreed on the strength of the document Ex. 1 already on the record. The trial court relied on the sale deed Ex. 1 produced by the plaintiff which was a registered document but was not admitted by the defendants.

3. Defendants went in appeal to the court of the District Judge, Bharatpur. The learned District Judge held that Ex. 1 was not proved and as such the plaintiff could not rely upon it. Taking this view of the matter, he accepted the appeal and dismissed the suit of the plaintiff. He also did not remand the case for permitting the plaintiff to lead evidence. Hence the second appeal.

4. I do not at all appreciate the manner in which the trial court acted in refusing the plaintiff to lead evidence. The provision of O. 16, r. 1 C.P.C as it stood before its amendment by the Rajasthan High Court is as follows:—

“At any time after the suit is instituted, the parties may obtain, on application to the Court or to produce or to such officer as it appoints in this behalf, summonses to persons whose attendance is required either to give evidence documents.”

5. By notification dated 29.6.57 published in the Rajpatra dated 25.7.1957, Rule 1 was amended by Rajasthan High Court and the following was substituted for Rule 1—

“1. (i) On such date as the court may appoint and not later than thirty days after the settlement of issues, each party shall present in court a list of witnesses whom it proposes to produce.

(ii) No party shall be permitted to produce witnesses other than those contained in the said list except with the permission of the Court and after showing good cause for the omission of the said witnesses from the list; the court granting such permission shall record reasons for so doing.

(iii) On the application to court or to such officer as it appoints in this behalf, the parties may obtain summonses for persons whose attendance is required in Court.

(iv) Where in accordance with the Proviso to Rule 8 of Order XVI a party has obtained summonses for any witnesses for service by himself or through his agent summonses for any such witnesses shall not unless specially ordered by the court for reasons to be recorded in writing, be re-issued for service in the manner provided for the service of summons to a defendant.

The suit in this case was filed on 13.7.1957 but it was governed by the amended Rule as the amendment is merely with regard to a procedural matter. It appears that the counsel for the plaintiff was not aware of this amendment and he merely acted under O. 16, r. 1 as it stood before the amendment by the Rajasthan High Court and applied on 20.1.58 that the summonses be issued for the attendance of the witnesses mentioned in the application. On 17.3.1958 when his attention was drawn to the amended Rule he atonce took steps to see that the plaintiff may be permitted to lead evidence. For the purpose, he made three applications to which the reference has already been made above. In the circumstances of the case, the trial court instead of being too technical should have permitted the plaintiff to produce witnesses who had been summoned and who, I may point out, were present in the court on 17.3.58 and who had been sent back without being examined after paying expenses to them. There was absolutely no bar for the trial court not to have examined those witnesses as O. 16, r. 1(ii) clearly gave the discretion to the trial court to examine these witnesses. The trial court could have also examined Prabhu Dayal plaintiff who was present. O. 16, r. 1(ii) may be applied even to a case in which there is no list submitted under O. 16, r. 1(i). O. 16, r. 1(ii) no doubt makes reference to the list submitted under r. 1(i) but the emphasis is on the point that the witnesses not named in the list cannot be produced without the permission of the court and without showing good cause for their not naming in the list. Even when there is no list, court's power to take evidence of any witness remains unfettered. In a given case it may happen that a party may feel that he is not in need of producing any witness and may not make an application as required under O. 16, r. 1(i) but at a later stage in the case the same party may realise that it is necessary to examine some witnesses on his behalf. Even in such a case the court may grant permission to that party to produce witnesses. This may be done under O. 16, r. 1(ii). The case may be taken as one in which the list has been filed containing no name of any witness.

6. Again, in the present case there was an application for summoning six witnesses and that application could also be taken as the list of the witnesses by the trial court under O. 16, r. 1(i) C.P.C There was no necessity for invoking sec. 151 in the case because that application had been filed within the period of thirty days from the settlement of issues. This could have been done had the trial court been anxious to see that the parties were not debarred from producing their evidence. It has been pointed out more than once that the rules of procedure are meant to advance the cause of justice and not to hamper it. In this connection, I may quote the following observations of the Supreme Court in Sangram Singh v. 1. Election Tribunal, Kotah (1):—

“Now a code of procedure must be regarded as such. It is ‘procedure’ something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.”

7. The learned trial Judge laid much emphasis on the technicality of the provisions and wanted to dispose of the case without caring whether the parties had been given an opportunity to lead evidence or not. One reason that has been assigned by the trial court for adopting this attitude is that the defendants had also not filed a list of the witnesses whom they wanted to produce. The trial court could have taken a liberal attitude with regard to the defendants also and could have given them an opportunity to produce witnesses atleast in rebuttal as at that time no list was to be filed for producing evidence in rebuttal. Rule 16(1)(i) has been further amended by Notification dated 20.1.61 published in Rajasthan Rajpatra dated 23.3.1961, and a new proviso has been added to the Rule as follows:—

“Provided that a party giving evidence in rebuttal may file a supplementary list of witnesses with the permission of the Court not later than fifteen days from the date of closure of the evidence of his opponent.”

8. I am, therefore, of the opinion that the case must be remanded to the trial court for enabling the parties to produce their evidence. The appeal is, therefore, allowed, the judgment and the decree of the learned District Judge, Bharatpur, dated 10.10.1958 are set aside and the case is remanded to the trial court for decision in accordance with law keeping in view of the observations of this Court. The costs so far incurred by the parties shall abide the result.

Prabhu Dayal v. Girraj Kishore

Concise Analytical Summary of the Opinion (Bhandari, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Prabhu Dayal v. Girraj Kishore

Comments