Jagat Narayan, J.:— This is a revision application by one of the defendants against an order of the trial court refusing to allow him to produce witnesses in rebuttal of the evidence of the plaintiff.
2. The burden of proving all the issues which were framed in the suit was placed on the plaintiff in the present suit. These issues were framed on 4th August, 1962. The plaintiff closed his evidence on 5th May, 1964 and 30th May, 1964 was fixed for recording the evidence of the witnesses of the defendant. The defendant filed his list of witnesses on 9th May, 1964, 28th May, 1964 was declared as a public holiday. The case was adjourned to a future date and the witnesses named in the list filed by the defendant were summoned for that date. On the date fixed for recording their evidence the plaintiff raised an objection that the evidence of these witnesses should not be recorded as the defendant had not filed a list naming them, within one month of the framing of the issues. The attention of the trial court was drawn to the proviso to sub-rule (i) of rule I of order 16 C.P.C which runs 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.”
3. And it was contended that since the burden of proving all the issues framed in the suit had been placed on the plaintiff the defendant wanted to adduce evidence in rebuttal only and he was entitled to file a list of such witnesses within fifteen days of the closure of the evidence on behalf of the plaintiff. The trial court however overruled the contention on the ground that as the defendant did not file a list of his witnesses within thirty days of the framing of the issues he could not avail of the proviso to file a supplementary list within fifteen days of the closing of the evidence of the plaintiff. In doing so he relied on the following observations made by a D.B Of this Court in Mst. Tulsi Bai v. Chunilal (1):
“We may also add that after the further amendment of 1961 was made, this rule affords a further opportunity to a party wishing to lead evidence in rebuttal to produce a supplementary list within fifteen days of his opponent closing the evidence. We are, however, clearly of opinion that having regard to the peremptory language of the provision, it will not be open to a party to produce witnesses in spite of the fact that be has failed to produce the list of witnesses as contemplated by or within the meaning of O. 16, r. I.”
4. I find that the above observations are wholly obiter. In the case before their Lordships the rule 1 of Order 16 C.P.C which was applicable was the one as it stood before its amendment to its present form. It ran as follows:
“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.
(vi) 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 on any such witnesses shall not unless specially ordered by the court for reasons to be recorded in writing, be reissued for service in the manner provided for the service of summons to a defendant,”
5. It did not contain the above proviso and the question of interpreting it did not arise in that case. Five issues were framed in this case. The burden of proving four of the issues was placed on the plaintiff and the burden of proving one issue lay on the defendant. Under the rule as it stood then, both parties had to file the lists of their witnesses within thirty days of the framing of the issues and there was provision enabling a party to file a supplementary list of witnesses whom it wished to examine in rebuttal on the issues the burden of proving which initially lay on the opposite party. The amended rule now stands as follows:
“1. (i) On such date as the Court may appoint and not later than thirty days after the settlement of issues, each party shaft present in Court a list of witnesses whom it proposes to produce.
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 oppoent.
(ii) No party shall produce or obtain process to enforce the attendance of witnesses other than those contained in the list referred to in sub-rule (i), except with the permission of the Court and after showing good cause for the same, and the Court granting or refusing suck 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 far reasons to be recorded in writing, be re-issued for service in the recorded provided for the service of summons to a defendant.”
6. Un behalf of the plaintiff was contended that from the use of the word “supplementary” in the proviso it should be inferred that it can be availed of only by a party which has filed atlist containing the name of at least one witness under the main sub-rule (1). I am unable to accept this contention. When the rule gives a second opportunity to a party to file a list of witnesses which it wishes to examine in rebuttal there is no reason why a party should be deprived of the advantage of it merely because it did not think it necessary to name a single rebuttal witness before the examination of the witnesses of the opposite party on the issue. Not filing a list is in mathematical terms the same thing as filing a list containing no name of any witness and it is considered necessary to be hypertechnical even in a procedural matter, a party can always be deemed to have filed such a list. The reason for the use of the word “supplementary” appears to be that while framing the proviso the High Court was thinking of those cases in which the burden of proof of some issues lies on one party and the burden of other issues lies on the other. In such a case both parties are required to file their lists of witnesses when they wish to examine initially to discharge the burden which lies on them under the main sub-rule (i) and to file further lists under the proviso and these further lists are referred to as supplementary lists.
7. The proviso no doubt lays down that this second opportunity can only be availed of with the permission of the court. There is yet another provision contained in sub-rule (ii) which gives power to the Court to allow a party to produce witnesses despite the fact that it has failed to file a list under the main sub-sec. (1) or the proviso to it as the case may be. It is significant that it makes it obligatory for the Court to record reasons both for permitting as well as for refusing permission under this provision. That indicates the anxiety of the High Court to ensure that the subordinate courts should neither allow a party to prolong litigation unduly, nor should they shut out material evidence necessary for a just decision of the case. The court has ample power to let in the latter type of evidences under this sub-rule despite some negligence on the part of a party.
8. Adverting again to the proviso it is noteworthy that although it lays down that the second opportunity can only be allowed with the permission of the court it does not prescribe that any reason should be recorded in writing for granting such permission. It is quite clear that permission under the proviso should generally be allowed unless there are strong reasons for withholding it.
9. Subordinate courts should not forget that rules of procedure are intended to promote justice and not to hamper it. The High Court framed R. 1 of O. 16 differently to prevent undue delay in disposal of cases but it was found that some subordinate courts were inclined to shut out material evidence necessary for a just decision of the case because of the wordings of the rule. Such sort of disposal however eventually increases duration of cases in the trial court and unnecessarily adds to the work of the courts of an appeal and revision. For such decisions have to be set aside on appeal and the cases remanded for a proper trial or the High Court has to interfere in revision. That is why the High Court found it necessary to re-amend the rule to its present form. A proviso was added to sub-rule (i). Further the wordings of sub-rule (ii) were changed. Formerly reasons had only to be given for granting permission under it. Now reasons have also to be given for refusing such permission. For reasons given above I allow the revision application, set aside the order of the court below and direct it to summon and examine the witnesses named by the defendant in his list filed on 9th May, 1964.
10. In the circumstances of the case I direct that parties shall bear their own costs of this revision application.