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2003 Supreme(Kar) 1006
Karnataka High Court
Rehman Hussain - Appellant
Versus
Althaf Hussain - Respondent
Decided On : 12-02-03
C.R.C. : 4 of 2003
M.V.RAGHUNATHACHAR
Headnote:
LA. No. 4 - Suit for permanent injunction - Order XVI, Rule 1, CPC, Rule 60 (2) KCRP, Section 151, CPC - Order XVI, Rule 1, CPC, Order XVI, Rule 1a, CPC, Rule 60 (2) KCRP - The court discussed the maintainability of LA. No. 4 filed by the plaintiff and the vires of Rule 60 (2) of KCRP in relation to Order XVI, Rule 1, CPC. The court referred to the judgments of Lalitha J. Rai v. Aithapa Rai, AIR 1995 SC 1984 and Vidhyadhar v. Manikrao, AIR 1999 SC 1441 to establish that a party can make an application under sub-rule (3) of Rule 1 for permission of the Court to summon any witness and examine him in support of his case, even if the list of witnesses has not been filed within the prescribed time.
Fact of the Case:
The plaintiff filed LA. No. 4 seeking permission to file list of witnesses after 15 days from the date of settlement of issues. The defendants opposed, contending that Rule 60 (2) of KCRP is ultra vires Order XVI, Rule 1, CPC. The Court referred the questions to the High Court under Section 113, CPC.
Finding of the Court:
The Court found LA. No. 4 maintainable and declared Rule 60 (2) of KCRP intra vires Order XVI, Rule 1, CPC.
Issues: The maintainability of LA. No. 4 and the vires of Rule 60 (2) of KCRP in relation to Order XVI, Rule 1, CPC.
Ratio Decidendi: The court relied on the judgments of Lalitha J. Rai v. Aithapa Rai, AIR 1995 SC 1984 and Vidhyadhar v. Manikrao, AIR 1999 SC 1441 to establish that a party can make an application under sub-rule (3) of Rule 1 for permission of the Court to summon any witness and examine him in support of his case, even if the list of witnesses has not been filed within the prescribed time.
Final Decision: LA. No. 4 filed by the plaintiff is maintainable and Rule 60 (2) of KCRP is intra vires Order XVI, Rule 1, CPC.
Key Points:
- The court examined the maintainability of a litigant’s application to file a list of witnesses after the prescribed time period, specifically beyond 15 days from the date of settlement of issues (!) .
- The court considered whether a specific procedural rule (Rule 60 (2) of KCRP) is valid and within the authority granted by the overarching procedural framework (Order XVI, Rule 1, CPC) (!) .
- It was established that a party may seek permission to summon witnesses and examine them even if the list of witnesses was not filed within the prescribed timeframe, provided the party shows sufficient cause (!) .
- The court clarified that the right to call witnesses is not strictly limited by the timing of the filing of the witness list, and such applications are maintainable under the relevant procedural provisions (!) .
- The court declared that the rule in question (Rule 60 (2) of KCRP) is intra vires and consistent with the provisions of Order XVI, Rule 1, CPC, affirming its validity (!) .
- The decision emphasized that procedural rules should be interpreted in harmony with the substantive provisions, and procedural flexibility is permissible to ensure justice (!) .
- The court highlighted that even if an application is filed under a different procedural rule, it can be considered as an application under the relevant rule governing witness examination, provided the court has jurisdiction (!) .
- The case underscores the importance of procedural fairness and the courts’ discretion to allow late filings or witness examinations, ensuring that technicalities do not impede substantive justice (!) .
Please let me know if you need a more detailed analysis or specific legal advice based on this case.
( 1 ) THE Principal Civil judge (Jr. Dn.) and JMFC, Mudigere, under section 113 of Code of Civil Procedure (CPC) has referred the question whether LA. No. 4 filed by the plaintiff in O. S. No. 1 of 2002, under Rule 60 (2) of the Karnataka Civil rules of Practice, 1967, for short, KCRP, read with Section 151, CPC seeking permission of the Court to file list of witnesses after 15 days from the date of settlement of issues is maintainable and whether Rule 60 (2) KCRP is violative of Order XVI, Rule 1, cpc, to this Court for opinfon. On receipt of the reference, the office of this Court has registered it as CRC No. 4 of 2002 and as directed by the Honble Chief Justice, the same is placed before this Bench for opinion.
( 2 ) THE background facts may be noted first in brief and they are as follows : The plaintiff has instituted a suit, O. S. No. 1 of 2002 in the Court below for permanent injunction restraining the defendants from interfering with the suit schedule property. The defendants having put in appearance have filed their written statement. The Court below framed the issues on 16-7-2002 and posted the case on 30-7-2002 for filing list of witnesses as envisaged under Order XVI, rule 1, CPC. On 30-7-2002 on behalf of the plaintiff, LA. No. 4 was filed under Rule 60 (2) kcrp read with Section 151, CPC seeking permission of the Court to file list of witnesses on the next date of hearing. In the affidavit filed in support of the application, it is stated that the plaintiff could not attend to the Court on earlier occasions due to his ill-health and, therefore, could not file list of witnesses within the stipulated time of 15 days from the date of settlement of issues. The said LA. No. 4 was opposed by the defendants by filing a counter-affidavit and it was contended by the defendants that rule 60 (2) of KCRP is ultra vires Order XVI, rule 1, CPC and, therefore, the Court has no jurisdiction to extend the time beyond 15 days after the date of settlement of issues.
( 3 ) THE Court below having considered the rival contentions put forth before it by the plaintiff and defendants and having thought that in terms of Order XVI, Rule 1, cpc, there is no scope for granting more time to file list of witnesses, has referred the questions noticed above for opinion of this Court under Section 113, CPC.
( 4 ) WE have heard Sri M. V. Raghunatha char, learned Counsel for the plaintiff and sri Sanath Kumar Shetty, learned Counsel for the defendants. Smt. Sona Vakkund and shri C. V. Nagesh, at our request, assisted the Court and we place on record our appreciation of their service.
( 5 ) BEFORE proceeding to consider the questions referred to us for opinion, it is appropriate to notice the relevant statutory provisions which have bearing on the decision making. Rules 1 and 1a of Order XVI, cpc read as follows :" (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 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. (4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the (Court in this behalf within five days of presenting the list of
