JUDGMENT:

1. Rule. Rule made returnable forthwith. By consent of parties, Petition is heard finally.

2. The Petitioner/Defendant assails order dated 26 August 2022 passed by the Civil Judge Senior Division, Vasai, on Application below Exhibit 52 allowing the prayer of Plaintiffs/Respondents to issue witness summons.

3. The objection of the Petitioner/Defendant to the order dated 26 August 2022 is that the Respondents/Plaintiffs in the first instance had failed to file list of witnesses as mandated under Order XVI Rule 1 of Code of Civil Procedure (hereinafter referred to as ‘CPC’). Having failed to file list of witnesses under that provision, it was incumbent on the Respondents/ Plaintiffs to show sufficient cause for seeking issuance of witnesses summons to additional witnesses under the provisions of Sub-rule 3 of Rule 1 of Order XVI of CPC. It is contended that since no sufficient cause was pleaded nor shown, the trial court has erred in allowing the Application and issued summons to witnesses whose names were not included in the list of witnesses to be filed under the provisions of sub-rule 1 of Rule 1 of Order XVI of CPC

4. The learned Counsel for the Petitioner/Defendant in support of his contention submits that showing of sufficient cause is a mandatory requirement under the provision of sub-rule 3 of Rule 1 of Order XVI of CPC and in absence of any sufficient cause being pleaded in the Application, the Court does not enjoy a discretion to allow the Application by issuing summons to the additional witnesses. He would submit that the trial Court noticed the hurdle but has attempted to surmount the same by erroneously holding that the rules of procedures are handmaid of justice and not mistress of justice. He would submit that since the provision is mandatory, the same cannot be given a go by invoking such a general principle. In support of his contention, he would rely upon judgment of this Court, Bench at Nagpur in Anil Ramesh Bhusari Vs. Bhaskar Ramesh Bhusari, 2015 (5) Bom.C.R. 52 (Writ Petition No.4928 of 2013 decided on 16 June 2014).

5. Per contra, Ms. Karnik, the learned Counsel, appearing for the Respondents/Plaintiffs would oppose the Petition and support the order passed by the trial Court. She would submit that examination of the two witnesses is necessary for the purpose of proving the proposed document that was expected to be executed between the parties. She would submit that while Respondents/Plaintiffs have sued Petitioner/Defendants for return of consideration paid towards purchase of flat, the Petitioner/Defendants have raised the defence that there was no such transaction for purchase of flat and the transaction was that of a loan. Ms. Karnik would submit that the ‘No Objection Certificate’ (NOC) issued by the Developer (which was mandatory in absence of the Co-operative Housing Society being formed) would prove the nature of transaction being that of purchase of flat. She would submit that two witnesses sought to be examined by the Respondents/Plaintiffs have issued such NOC. She would also place interpretation regarding provisions of sub-rule 1 and sub-rule 2 of Rule 1 of Order XVI of CPC to mean that under sub-rule 2 additional witnesses (whose names are not stated in the list of witnesses) can also be summoned by the Court and there is no requirement of showing sufficient cause. Alternatively she would submit that use of the words “show sufficient cause for the omission” is procedural in nature and once Respondents/Plaintiffs satisfied the Court that examination of a particular witness is necessary for the purpose of determining the real question of controversy between the parties, the provision is required to be held to be directory and not mandatory. In support of her contention, she would rely upon the judgment of the Apex Court in Kailash vs. Nanhku & Ors., (2005) 4 SCC 480.

6. The rival contentions of the parties now fall for my consideration.

7. Respondents/Plaintiffs have filed suit bearing Special