KHAIRATI LAL Vs. KISHORI LAL
LAWS(J&K)-1993-12-5
HIGH COURT OF JAMMU AND KASHMIR
Decided on December 10,1993

KHAIRATI LAL Appellant
VERSUS
KISHORI LAL Respondents

JUDGEMENT

- (1.)THE petitioner is the tenant of respondent and is resisting the ejectment suit pending before learned Sub Judge, Kathua. He filed an application under Order 16 rule 3 C.P.C. before the trial court on 8.1.1992 praying therein that he be allowed to produce fresh list of witnesses to summon them through court. His application has been rejected vide order dated 18.9.1993. He has filed a revision petition to assail the order on variety of grounds.
(2.)IT is submitted by learned counsel for the petitioner. Mr. Thakur, that the trial court has rejected the prayer after the petitioner had established a sufficient cause for summoning the new witnesses. The Court, it is urged should not have drawn a presumption against the petitioner which in any way could not have been drawn against him, and should have decided the application on merits. On the contrary, it had resorted to the technicalities to dismiss the application without appreciating that no prejudice would be caused to the plaintiff in the process. He pointed out that in the suit evidence of the defendant has been ordered but so far no DW had been examined. According to him, some supervening events had taken place during the pendency of the suit necessitating fresh list of witnesses which had an important bearing on the fate of the case. He urged that the trial court had compounded the error by attributing default to the petitioner without taking a view whether he had succeeded in establishing a sufficient cause as required under Order 16 rule 3 C.P.C.
(3.)MR , J.P. Singh, learned counsel for the respondent justified the order impugned by submitting that the petitioner had failed to satisfy the bare minimum requirements of Order 16 Rule 3 C. P. C. He said that the petitioner had been casual and negligent in filing application and had not even cared to mention the names of the witnesses he proposed to summon, not to speak to the gist of the evidence which they were required or expected to give. Similarly he had not indicated as to how and when "new facts" had come to his knowledge warranting the filing of fresh list of witnesses. His efforts was only to protract the proceedings and to defeat the cause of the respondent by resorting to dilatory tactics.
I have heard learned counsel for the parties and examined the record. It becomes necessary to refer to the relevant provisions to appreciate the rival contentions of the parties. Order 16 and its relevant rules, read thus:

"1. List of witnesses and summons to witnesses: - {1) On or before such date as the court may appoint, and not later than fifteen days after the date on which the issues were 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 summons to such person 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.
A perusal of the provisions show that the parties are required to submit their list of witnesses whom they propose to call to give evidence or to produce documents on such date as the Court may appoint but not later than 15 days after the date on which issues are settled. When such list is filed they may obtain summons to such persons for their attendance in the court and where a party wants to call any witness other than those whose names appear in the list, the Court may permit it to call such witnesses provided the party shows sufficient cause for the omission to mention the name of such witness in the said list. The court is also required to record reasons for granting such permission.


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