S.K.Mal Lodha, J. - (1.) A short but important question of law relating to the scope and applicability of the provisions of Order XVI, Rule 1-A, Civil P. C., is involved in this revision, which has been directed against the order dated May 9, 1979 passed by Munsif, Nagaur, declining to examine the defendant-petitioner's witness whose name was not mentioned in the list of witnesses but who was brought by him for examination in court.
(2.) The plaintiff-non-petitioner instituted a suit for the recovery of Rs. 2500/- in the court of Munsif, Nagaur. The suit was resisted by the defendant-petitioner. During the pendency of the trial, the defendant did not submit any list of witnesses under Order XVI, Rule 1, Civil P. C. Prior to the amendment of the Civil P. C. 1908 (No. V of 1908) by the Civil P. C. (Amendment) Act (No. CIV of 1976), Order XVI, Rule 1, as amended in Rajasthan, and relevant for the present purpose, read as under, -- "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 : Provided that a party giving evidence in rebuttal may file a list of witnesses not later than fifteen days from the date of closure of the evidence of his opponent. (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 the Court granting or refusing such permission shall record reasons for so doing. (iii) & (iv) ...... ...... ...... ...... ..." The following Rule 1-A was also added after Rule 1 of Order XVI, Civil P. C. "1-A. Subject to the provisions of Sub-rule (ii), any party to the suit may, without applying for summons under Rule 1, bring any witness to give evidence or to produce documents." The Code of Civil Procedure, as amended by Act No. CIV of 1976, came into force from February 1, 1977. Order XVI, Rule 1, reads as under, -- "Rule 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 are 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 summonses to such persons 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 the reasons to be recorded, permit a party to call, either 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. (4) Subject to the provisions of Sub-rule (2), summonses referred to in this rule may be obtained by parties on an application to the Court or to such officer as may be appointed by the Court in this behalf." Rule 1-A of Order 16 runs as under,- "Rule 1-A. Production of witnesses without summons. Subject to the provisions of Sub-rule (3) of Rule 1, any party to the suit may, without applying for summons under Rule 1, bring any witness to give evidence or to produce documents." The learned Munsif, by the impugned order, refused to examine the defendant's witness Ghamandaram on the ground that no list of witnesses was filed by the defendant and that sufficient cause was not shown for the omission of his name as required by Order 16, Rule 1 (3), C. P. C. The aforesaid order dated May 9, 1979 of the learned Munsif is challenged in this revision.
(3.) I have had advantage of hearing learned counsel for the petitioner only as nobody appeared on behalf of the plaintiff-non-petitioner despite service.;