CHHANGANI, J. - (1.) THIS revision raises an interesting question as to the interpretation of O. 16 R. 1, Civil Procedure Code, as amended by the Rajasthan High Court.
(2.) THE revision came up for hearing on 10th February, 1971. THE learned counsel for the parties pointed out that a number of revisions against orders passed by subordinate courts on varying interpretations of O. 16 R. 1 C. P. C. have been pending in this Court and that the subordinate courts have passed contradictory orders almost in similar circumstances and suggested that the hearing of the revision may be adjourned and all advocates interested in assisting the Court for the proper interpretation of O. 16 r. 1 C. P. C. should be given an opportunity to do so. THE case was, therefore, adjourned for hearing today, and a number of similar revisions were also listed for hearing. I have heard Mr. A. L. Mehta for the petitioner and Mr. D. S. Sishodia for the respondent. The other counsel appearing in other cases and the advocates who were interested in assisting the Court for the proper interpretation of O. 16 R. 1 were also allowed to place their views before the Court. The learned counsel very much emphasised the need of laying down principles guaranteeing uniform administration of law by the subordinate courts. While there can be a settled view as to the proper interpretation of O. 16 R. l there is bound to be great diversity of facts and circumstances in applying the principle to the actual cases coming before the subordinate courts. Naturally I must recognise the need of the exercise of a considerable measure of discretion on the part of subordinate courts and the futility of laying down a rigid and exhaustive set of rules or formulae for applying the correct principle of O. 16 R. 1 C. P. C. However, it becomes necessary to attempt to ascertain the correct principle of O. 16 R. 1 as also to ascertain the broad guide lines that should be kept in mind while deciding individual cases. Before doing so, it will be proper to set out the facts of the present case. In this case the non-applicant Ramakant filed a suit against the applicant Dalchand for damages for libel. Issues in the case were framed on 8-12 67 and parties were allowed 30 days time to produce list of witnesses and the date for recording evidence was fixed on 23. 1. 68. The plaintiff did not submit any list nor did he keep his witnesses ready on 23. 1. 68. On 231. 68 the plaintiff sought an adjournment on the ground of illness of the advocate. An adjournment was granted and the case was fixed on 18. 3 66 for plaintiff's evidence. On 18. 3 68 the plaintiff's witnesses were not present in Court but the Presiding Officer was also on leave and the case was adjourned to 9. 7. 68. On 9. 7 68 also the plaintiff's witnesses were not present. The plaintiff sought an adjournment. The defendant raised objection and the case was adjourned to 11. 9. 68. On 26. 8. 68 the plaintiff submitted an application for permission to file list of witnesses as required by O. 16, R. 1 C. P. C. This application came up before the court on 28 8 68. A notice was directed to be issued to the defendant. The application was adjourned for hearing on 11. 9. 68. On 11. 9. 68 two witnesses namely, Yagyanarain and Mohanlal, were present. The Presiding Officer was on leave and the case was adjourned to 15. 11. 68. On 15. 11. 68 three witnesses, namely, Yagyanarain, Mohanlal and Kanhaiyalal were present but the Presiding Officer was on leave. On the next date of hearing, that is, 25. 2. 69, the plaintiff's three witnesses were present. The application dated 26. 8,68 was heard and the court allowed the plaintiff's application and ordered that the witnesses named in the list dated 26 8. 68 would be permitted to be examined Aggrieved by this order, the defendant has filed the present revision application. For proper interpretation of the Rule, it will be useful to review simultaneously the legislative history of the rule and the decisions of this Court interpreting the rule. The provisions of O. 16 R. 1 C. P. C. as it stood before its amendment by the Rajasthan High Court is as follows. O. 16 R. 1 - "at any time after the suit is instituted, the parties may obtain, on application to the Court or to such officer as it appoints in this behalf, summonses to persons whose attendance is required either to give evidence or to produce documents. " O. 16 R. 1-A - "where any party to the suit has, at any time on or before the day fixed for the hearing of evidence, filed in the Court a list of persons either for giving evidence or for producing documents, the party may, without applying for summons under R. 1, bring any such person, whose name appears in the list, to give evidence or to produce documents. " On the basis of law as it stood before the amendment, it was noticed, as pointed out by a Bench of this Court in Mst. Tulsi Bai vs. Chunnilal (l), "that cases were not infrequently prolonged by repeated applications for summoning the witnesses before the disposal of the suit, and, in any case, before the party closed its own evidence, and there was also abundant opportunity for production of spurious evidence to suit the exigencies of the occasion. " The Court with a view to ensure a speedy, efficient and pure administration of justice, and to eliminate opportunities for production of cooked up witnesses, introduced the following amendment in Rule 16 (l) by Notification No. 16/s/r/o dated 29th June. 1957 published in Rajas-than Gazette Part 4-'ga' dated 25th July, 1957, which reads as follows: "1 (1) 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. (2) 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. (3) 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. (4) Where in accordance with the proviso to Rules 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 specifically ordered by the Court for reasons to be recorded in writing, be re-issued for service in the manner provided for the service of summonses to a defendant. " It may be mentioned that the rule as amended did not make provision for evidence to be produced in rebuttal. The Court, therefore, introduced further amendments by Notification No. 1/s. R. O. dated 20th January, 1960 which were published in the Rajasthan Gazette Part 3 'kh' dated 23rd March, 1960. By this amendment, the following proviso was added to Rule 1 (1): "provided that a party giving evidence in rebuttal may file a supplimentary list of witnesses with the permission of the Court not later than fifteen days from the dale of closure of the evidence of his opponent. " Sub rule 1[1] was substituted by the following - "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[l], except with the permission of the Court and after showing good cause for the same, and the Court granting or refusing such permission shall record reasons for so doing. " The material change in the sub-rule 1[11] as it stood prior to the amendment may be indicated here. Instead of "showing good cause for the omission of the said witnesses from the list "the rule used a phraseology" showing good cause for the same. The amended rule came up for interpretation for the first time before a learned single Judge of this Court in Prabhu Dayal vs. Girraj Kishore [2]. In that case, the plaintiff filed a suit on 13. 7. 57, issues were framed on 15. 1. 1958 and the case adjourned to 17. 3. 58 for the plaintiff's evidence. On 20. 1. 1958 the plaintiff applied that the summonses be issued to the six witnesses referred to in the application and he also deposited Rs. 25/- for the expenses of the witnesses. On 17. 3. 58 the defendant-respondent submitted an application praying that as the plaintiff had not filed a list of witnesses as required by O. 16 R. [1] of the Civil Procedure Code the evidence of the plaintiff be ordered to be closed on this, the plaintiff filed three applications: (1) that permission may be given to him for examining the eight witnesses; (2) that the application filed on 20-1-58 may be treated as a list filed under O. 16 R. (1) C. P. C. and (3) that atleast Prabhu Dayal plaintiff should be examined. The trial court dismissed all these applications and closed the plaintiff's evidence. When the matter came before this court in second appeal, the Court while interpreting O. 16 R. (1) as amended stated as follows: "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 (11) clearly gave the discretion to the trial court to examine these witnesses. . . . . . . . . . . . . . . . . . . . . . O. 16, r. 1 (2) may be applied even to a case in which there is no list submitted under r. 1 (1) O. 16, r. 1 (2) no doubt makes reference to the list submitted under r. 1 (1) 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, courts power to take evidence of witnesses remains unfettered. . . . . . . . . . . . . . . This may be done under O. 16 r. 1 (11 ). The case may be taken as one in which the list has been filed containing no name of any witness. " In Mst. Tulsi Bai vs. Chunilal (l), a Bench of this Court had an occasion to interpret the rule The Bench ernphasised (1) the well settled principle of interpretation "that where the language of the Act is clear and explicit, the court must give effect to it regardless of the consequences thereof, and it is only where the words are susceptible to an ambiguity and two interpretations are possible, and the one leads to injustice and the other avoids it, that the court would be justified in choosing the interpretation which avoids the anomaly or injustice. 'the court also held, (2)" that the language of O. 16, r. 1 as amended is neither vague nor ambiguous in any way and that the provision contained in O. 16, r. 1 as amended by this Court is an express and explicit one in so far as it commands the parties to a suit to file a list of the witnesses intended to be produced by or in support of their respective cases within 30 days of the settlement of issues therein and further that this provision is mandatory and the rule itself provides the exceptions where the strict requirements of that rule can be dispensed with, that is, in cases where the party intending to produce any further witnesses shows good reason to the court why the names of those witnesses were not mentioned in the list filed under O 16. r. 1 and obtains the permission of the court for their production and the court records the reasons for granting or refusing the permission so asked for. " The Bench, however, expressed its express dissent with the view taken in Prabhu Dayal's case (2) and observed, "we find ourselves unable, with all respect, to agree with the learned single Judge as to the interpretation he put on O. 16, r. 1 as amended by this Court, in so far as he held that the filing of the list was merely a subsidiary matter or a matter of no importance as the emphasis of the rule in his opinion lay on the requirement '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. 'with very great deference, we should like to point out that a party can produce witnesses' not named in the list' provided that he satisfies certain conditions which contemplate that 'a list' must have been filed in the first instance, and where no list has in fact been filed, there can be no question of examining any witnesses who may be other than those named in the list. We further find it difficult to accept the proposition laid down in this decision that 'the case may be taken as one in which the list has been filed containing no name of any witness'. "the Bench of-course, referred to the amendment of 1961 referring to the provision of sub-rule (i) permitting a party wishing to lead evidence in rebuttal to produce supplementary list within 15 days and observed, "we are, however, clearly of opinion that having regard to the peremptory language of the provisions, it will not be open to a party to produce witnesses in spite of the fact that he has failed to produce the list of witnesses as contemplated by or within the meaning of O. 16, r. 1. " These observations have often been relied upon for a stand that even the acceptance of a supplementary list depends upon the initial filing of a list. Before the Bench the observations of the Supreme Court in Sangram Singh vs. Election Tribunal, Kotah (3) which were relied upon in Prabhu dayal's case (2) reading as follows were cited; "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) less the very means designed for the furtherence of justice be used to frustrate it. " The Bench, however, extracted the further observations of the Supreme Court reading as follows: "next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso our laws of procedure should be construed, wherever that is reasonably possible in the light of that principle. " and reached the following conclusion, "the true effect of this judgment, in our respectful submission, is only this that, generally speaking, undue importance should not be given to rules of procedure and any breach thereof should not be visited with penalties; but where there are exceptions to this rule and where such exceptions are clearly defined, there is no course left open to the courts other than to give effect to them. It clearly seems to us that the present is a case which falls within the exceptions to the rule laid down by the Supreme Court in its judgment. " According to the Bench decision, where the parties omit to file list the courts have absolutely no discretion in allowing parties to produce witnesses or to get them summoned. Such a strict view expressed by the Bench was not shared in the subsequent decisions of this Court in Baxiram vs. Ashwani Kumar (4 ). In that case, the defendant did not submit any list as required by the main provision of O. 16, r. 1. The plaintiff closed his evidence on 5th May, 1964 and 30th May, 1964 was fixed for recording evidence of the witnesses of the defendant. The defendant filed his list of witnesses on 9th May, 1964 The plaintiff raised an objection that the evidence of the defendant's 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 trial court relying upon the Bench decision in Tulsibai's case (1) did not allow the defendant to examine the witnesses. A revision against this order was allowed by a learned single Judge of this Court. In doing so, the learned Judge observed as follows: "the observations in Tulsibai's case (1) which have been extracted above were wholly obiter. In the case before their Lordships the rule 1 of O. 16 C. P. C. which was applicable was the one as it stood before its amendment to its present form. " An argument was advanced before the learned single Judge that from the use of the word "supplementary" it should be inferred that it can be availed of only by a party which has filed a list containing the name of at least one witness under the main sub-rule (1 ). Repelling this argument, the learned Judge observed. "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 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 a 'supplementary' appears to be that while framing the proviso the High Court was thinking of these 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 (1) and to file lists under the proviso and these further lists are referred to as supplementary lists. " The Court treated sub-rule (ii) as also giving power to the court to allow a party to produce witness despite the fact that it has failed to file a list under the main sub-rule (1) or the provise to it as the case may be. Emphasising the need of recording reasons for permitting as well as refusing permission, the learned Judge observed, "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. " In Pt. Bhonrey Lal vs. Pt. Kunj Behari Lal (5), the learned single Judge held that the parties can avail of sec. 5) of the Limitation Act in securing the summoning and production of witnesses in case where the list could not be filed within 30 days. The learned Judge treated O. 16, r. 1 as providing for the making of application as also prescribing the period of limitation in such applications. Evidently, one cannot but notice some conflict of opinion in the decisions of this Court reviewed above which cannot but lead to some uncertainty. In this state of affairs, the Court introduced amendments in O. 16, r. 1 given below. By this amendment, the word "supplementary" occurring between the article "a" and the word 'list' and the words "with the permission of the Court occurring between the words "witnesses" and "not" were omitted and in sub- rule (ii) the words and coma "and after showing good cause for the same" occurring between the words "court" and "and" were also omitted. Sub-rule 1-A reading as follows was also added - "1-A. Subject to the provisions of sub rule (ii) of rule 1, any party to the suit may, without applying for summons under R. 1, bring any witness to give evidence or to produce documents. " The rule, as amended, now stands, may be quoted as follows - "summons to attend to give evidence or produce documents.- At any time after the suit is instituted, the parties may obtain, on application to the Court or to such officer as it appoints in this behalf, summonses to persons to give evidence or to produce documents. Provided that a party giving evidence in rebuttal may file a list of witnesses not later than 15 days from the date of closure of the evidence of his opponent. No party shall produce or obtain process to enforce attendance of witnesses other than those contained in the list referred to in sub-rule (i) except with the permission of the court and the court granting or refusing such permission shall record reasons for so doing. Subject to the provisions of sub-rule (ii) of R. 1, any party may without applying for summons under R. 1 bring any witness to give evidence or to produce documents. " The counsel for the respondent as also the majority of the advocates who appeared in the other revision petitions or who intervened, vehemently contended that the Bench decision in Tulsi Bai's case (1) adopted a very strict and harsh interpretation of the rule and that in doing so, the Bench did not give adequate weightage to the observations of the Supreme Court relating to the nature of the procedural law. The learned counsel made a specific grievance in respect of the observations which indicate that a party leading evidence in rebuttal cannot even file a supplementary list if the party failed to submit the initial list as provided by the main rule. I have given due consideration to the various arguments advanced at the Bar. I think, it will be proper to consider the broad features of the rule and to ascertain the precise implications.
(3.) SUB rule (1) gives a discretion to the courts to fix the periods during which the parties should file their lists subject to the maximum of 30 days. Fixation of such periods by the courts will depend upon the nature of the pleadings, the nature of the issues and the peculiar situations of the parties and the courts cannot but have ample discretion in this behalf. The courts having discretion in the matter of fixing the periods, they must have the discretion to subsequently vary or amend the periods, subject of course to the maximum of 30 days. It follows that the initial fixation of a date by the courts, if it is within the limit of 30 days, cannot be irrevocable and the courts cannot but have discretion to change the dates on good cause being shown. It roust further follow that the dates can be changed prospectively. The only part of the rule which can be considered mandatory is that the courts cannot fix a date beyond 30 days. The sub-rule (1), however, does not itself provide for any penal consequences ensuing from non-filing of the list. The only penal consequences which can be impliedly inferred from the rule is that a list cannot be filed after the expiry of 30 days and parties cannot claim absolute rights to produce and get summoned witnesses. It must be pointed out at this stage that in the trial of a suit there are bound to arise various contingencies : pleadings may be amended involving addition and subtraction of issues; even without amendment, there may be addition and deletion of issues, the subsequent events might bring in additional controversies. It must also be added that ordinarily it may not be possible for the party leading evidence in rebuttal to have an idea of the nature of the evidence to be produced in rebuttal. That will depend upon the nature of the evidence led by the party beginning the evidence. In these circumstances, an comission on the part of the party leading evidence in rebuttal does not deserve to be given much emphasis A complete deprivation of the discretion of the courts in the matter of leading evidence in consequence of omission to file list could not have been intended by the court. It is true, as pointed out by the Divsion Bench, that the court should give due weight to the need of securing speedy and pure justice but there is still greater imperative need of doing substantial justice to the parties by enabling them to obtain decision on merits, and the Courts must have discreation so that they may strike a proper balance between the needs of prompt and expeditious disposal and the needs of determination of controversy on merits. While courts are certainly expected to disapprove, discourage and zealously prevent deliberate attempts at unnecessary prolongation of the cases as also carelessness or indifference to the diligent prosecution of cases, they must do so within reasonable and permissible limits: they should not avoid trials on merits in a light hearted manner by adopting rigorous and unduly strict tests of expecting unusual and exemplary behaviour of ideally careful litigants; the test to be adopted should be one of reasonable expectation by a reasonably diligent litigant- It is evident that such considerations led to the promulgation of sub rule (ii) vesting discretion in the courts to allow parties to produce witnesses or to get them summoned even though their names could not be given in the initial lists. The sub-rule (ii) as initially framed contained the words "after showing good cause for the omission of the said witnesses from the list". The rule also did not make adequate provision in connection with evidence to be led in rebuttal. The Court, however, noticed the omissions and realised the possibilities of unduly strict interpretations and therefore, made necessary amendments in the year 1661. A proviso to sub-rule (1) was added to allow a party leading evidence in rebuttal to file a supplementary list with the permission of the court. SUB-rule (ii) was also amended with changes already indicated. The two learned Judges sitting singly, interpreted sub-rule (ii) liberally and did not find any limitations in the rule. The Bench, however, in Mst. Tulsi Bai's case (1) imported some limitations in the rule and interpreted sub rule (ii) to lay a mandate that the discretion can be exercised only in the manner indicated in the rule. The Bench specifically held that the courts can have discretion to examine witnesses only when initial lists had been filed and when the parties are in a position to satisfy the courts for the non-inclusion of the names in the lists. It appears to me that the Bench on considerations of need of prompt disposal of cases felt persuaded to enforce the language of the rule as it was in October, 1959. The Bench had no occasion to consider the implications of the amendment of the sub rule in the year 1961. It also appears that the attention of the Bench was not invited to the various contingencies arising in the progress of a suit Having regard to all the circumstances, I am of opinion that the decision of the Bench and its observations should be treated valid only with reference to the language of the rule in October 1959 and should not be extended further. Emphasising the amendment of the sub-rule (ii) and relating the expression "showing good cause for the same" with the production or obtaining of processes for witnesses other than those contained in the list, I feel strongly inclined to take the view that the courts have been given discretion to permit parties to produce witnesses or to get them summoned even in cases where initial lists were not filed. The learned counsel no-doubt vehemently submitted that even on the rule as it stood, the Bench decision requires re consideration. Having regard to the subsequent amendments in O. 16, r. 1 and having regard to the manner in which these cases can be easily disposed of without reconsideration of the Bench decision I did not consider it necessary to accept a suggestion for a reference to a larger Bench. There is no doubt that the subsequent amendments made in the year 1970 vide S. C. 25 dated 6. 10. 70 published on 19. 11. 70 made the position abundantly clear. In proviso the word "supplementary" has been deleted and the expression "with the permission of the court" has also been deleted. Having regard to these changes, the observations of the Bench in connection with the list of witnesses to be examined in rebuttal cannot have any binding force or relevance in interpreting the amended rule. Similarly, the amendments introduced in sub-rule (ii) also vest greater discretion in the subordinate courts in this context, the observations of the Supreme Court in Sangram Singh's case (3) as to the need of interpreting procedural law with flexibility should govern the interpretation of the rule and it will be hardly proper to treat this rule as a well defined exception within the meaning of the observations of the Supreme Court. The next question which arises for determination is: whether a revision against an order passed either on a mis-interpretation of the rule or on a mis application of the rule is competent or not? There are indeed a large number of decisions of the Supreme Court, the Privy Council and various High Courts interpreting S. 115 C. P. C. , and indicating the precise limits of the jurisdiction conferred upon the High Courts by this section. I do not consider it worth while to undertake a review of all these cases and consider it sufficient to sum up some of the fundamental principles laid down in those cases - (1) Sec: 115 C. P. C. applies only to cases in which no appeal lies and it must, therefore, be borne in mind that where the legislature has provided no right of appeal, the manifest intention is that the order of the court, right or wrong, shall be final. (2) The section applies to jurisdiction alone, the irregular exercise or non-exercise of it or the illegal assumption of it. The section is not directed against conclusions or law or fact in which the question of jurisdiction is not involved, nor is it intended to authorise the High Court to interfere and correct gross and palpable errors of subordinate courts so as to prevent grave injustice in non-appealable cases as it is indeed difficult to formulate any standard by which the degree of error of subordinate courts could be measured. It need be emphasised that if the trial court had jurisdiction to decide a question before it and did decide it whether it decided rightly or wrongly, the court had jurisdiction to decide it and even if it decided question wrongly, it did not exercise its jurisdiction illegally or with material irregularity. (3) The words "illegality and material irregularity" do not cover either errors of facts or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated refer to material defects of procedure and not to errors of either of law or fact after the formalities which the law prescribes, have been complied with. They cover cases where a court acts in breach of any provision of law or commits any error of procedure which is material and which may affect the ultimate decision. (4) That although an error in a decision of a subordinate court does not by itself involve that the subordinate court has acted illegally or with material irregularity so as to justify interference in revision under sub sec. (c) nevertheless if the erroneous decision results in the subordinate court exercising jurisdiction not vested in it by law or failing to exercise jurisdiction so vested, a case for revision arises under sub-sec. (a) or sub-sec. (b) and sub-sec. (c) can be ignored. (5) That the powers under the section are intended to be exercised with a view to sub-serve and not to defeat the ends of justice. (6) That powers under sec.- 115 C P. C. are discretionary and where the order passed is just and not without jurisdiction the High Court may refuse to interfere. Proceeding to consider the case in the light of the interpretation of R. 16 (1) as indicated above and the principles governing the exercise of the revisio-nal jurisdiction I may observe at once that the cases can be classified in some categories. ;