The court established that the use of the word 'shall' in procedural provisions does not automatically lead to the forfeiture of rights and that the court has the discretion to grant further time to meet the ends of justice.

1. By invoking the jurisdiction of this Court under Article 227 of the Constitution, the petitioners have challenged the order dated 6-7-2012, whereby the applications preferred by the petitioners/defendants under Order 16 Rule 2, CPC and under Order 16 Rule 6 CPC, are rejected.

2. The matter is arising out of a civil suit instituted by respondent Nos. 1 and 2/plaintiffs for declaration, injunction and/or declaring the partition deed dated 6-1-2005 as illegal. It is alleged in the plaint that the defendants made the plaintiff No. 1 to execute registered partition deed, dated 6-1-2005 by playing fraud. The defendants filed their written statement and denied the averments. After completion of the evidence, defendants preferred aforesaid application for calling original record of registered partition deed from the office of Sub-Registrar and moved another application for calling the writer and stamp vendor of partition deed as defence witnesses. By impugned order, these applications were rejected by the Court below on the following grounds :-

(i) Document dated 6-1-2005 is a public document and to prove that document the summoning of the document from the Deputy Registrar office is not justifiable.

(ii) If the concerned Clerk with the document is summoned, it will have an adverse impact on the work of public at large because of his absence at work place.

(iii) The petitioner has not preferred any application for summoning the witnesses and the plaintiff evidence is already over and, therefore, at this stage the application preferred is not justifiable.

(iv) The petitioner should have preferred an application under Order 16 Rule 1 at the relevant time, if at all he intended to summon new witnesses.

(v) The petitioner has not preferred the said application in time and adopted the procedure, which amounts to abuse of process of law.

3. Shri Vikas Singhal, learned Counsel for the petitioners, submits that the order passed by the Court below is based on hyper-technicality and runs contrary to Chotelal Vs. Sodarabai and another 2005(4) MPLJ 580.

4. Per Contra Shri N.K. Gupta, learned Counsel for the respondent Nos. 1 and 2, supported the order and submits that a bare perusal of the language of Order 16 Rule 2, CPC and Order 16 Rule 6, CPC makes it clear that such applications/prayer can be made within the time permissible in view of the statutory mandate. He heavily relied on the word "shall" employed in the said provision. It is stated that if applications are not preferred within the mandatory time fixed, the Court below has not erred in rejecting the same.

5. I have heard learned Counsel for the parties and perused the record.

6. Before appreciating the rival contentions, I deem it apt to reproduce Order 16 Rule 2 and Order 16 Rule 6, CPC, which reads as under :-

"Order 16 Rule 2 : Expenses of witness to be paid into Court on applying the summons-(1) The party applying for a summons shall/before the summons is granted and within a period to be fixed, which shall not be later than seven days from the date of making application under sub-rule (4) of Rule 1, pay into Court such a sum of money as appears to the Court to be sufficient to defray the travelling and other expenses of the person summoned in passing to and from the Court in which he is required to attend, and for one day's attendance.

Order 16 Rule 6 : Summons to produce document.-Any person may be summoned to produce a document without being summoned to give evidence, and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same."

7. This cannot be disputed that the document dated 6-1-2005 is a crucial document, which will throw much light on the issue whether the document was executed, if executed whether it bears the signatures of the parties, whether it was done by the parties on their own volition or under any coerce or pressure. Apart from this,