- (1.) Heard learned Counsel for the petitioner. The petitioner has challenged the order dated 17.10.2011 passed by the Trial Court, inter alia, on the ground that the list of witnesses, which was submitted by the plaintiff is to be adhered to and the witnesses cannot be given up. He further submits that another witness in place of the list of witness cannot be examined. He has placed reliance upon Order XVI, Rule 1, C.P.C. to give force to his argument. I have perused the order passed by the Trial Court, from which it is evident that after conclusion of evidence of D.W. 3 from the list of witnesses filed by the plaintiff, an application was moved by the defendant praying that the witness, namely, Amrawati shown in the list was suffering from Typhoid and, therefore, she was unable to appear and in her place her elder sister, namely, Chanda Gupta may be allowed to be examined. The Trial Court accepted the request of the defendant and permitted Chanda Gupta to be examined as a witness apart from the list of witnesses on a cost of Rs. 100/-. The ground taken before the Trial Court was that the witness was not feeling well and was suffering from Typhoid.
(2.) The provisions of Order XVI, Rule 1, C.P.C. are relevant in this regard and the Order XVI, Rule 1(3), C.P.C. is of importance to be considered in this case, may be that from the list of witnesses a particular witness is not examined, but the defendant is not precluded from examining any other witness. The aforesaid position of law was considered by the Apex Court in the case of Mange Ram v. Brij Mohan and others, 1983 4 SCC 36. The Apex Court while considering the issue held that the Court has no jurisdiction to refuse to examine the witnesses on ground of non-mention of names and gist of evidence of such witnesses. The relevant scope of Order XVI, Rule 1(3) and 1A, C.P.C. was considered and it was held as under: But if on the date fixed for recording the evidence, the party is able to keep his witnesses present despite the fact that 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 these witnesses and to produce documents through the witnesses who are called to produce documents under Rule 1-A. x x x x x. Save this, the Court has no jurisdiction to decline to examine the witness produced by the party and kept present when the evidence of the party is being recorded and is not closed, and the Court has no jurisdiction to refuse to examine the witness who is present in the Court on the short ground that the name of the witness was not mentioned in the list filed under sub-rule (1) of Rule 1 of Order XVI. This scheme clearly emerges from the various provisions herein discussed. From the above proposition of law laid down by the Apex Court, the order passed by the Trial Court cannot be faulted in any manner and, therefore, the petition is liable to be dismissed. It is accordingly dismissed.;