The court established that the time for filing the list of witnesses can be extended for reasons beyond the control of the party, and the court has the power to permit a party to call witnesses even if their names are not in the list, for sufficient cause.

JAYANT NATH, J.

1. By the present petition, the petitioner seeks to impugn the order dated 15.3.2016 by which an application filed by the petitioner/defendant under Order XVI Rule 1 read with Section 148 and 151 CPC and Section 5 of the Limitation Act for condonation of delay/ extending the time for filing the list of witnesses and praying that the list of witnesses submitted on 19.10.2015 be taken on record.

2. The present suit has been filed for perpetual injunction and declaration under the Specific Relief Act by the respondent/plaintiff seeking a decree of perpetual injunction to restrain the petitioner/defendant from entering into the suit property as shown in red in the site plan i.e. 1/4th undivided share of the plaintiff in property No.3, Hanuman Road, Connaught Place, New Delhi or from taking possession of the suit property, etc. A decree of declaration is also sought for declaring that the plaintiff is the rightful owner and in possession of the suit property. Other connected reliefs are also sought.

3. On 3.11.2011, when the matter was pending before this court, this court framed issues and directed that affidavit by way of evidence be filed by both the parties within four weeks along with list of witnesses. With the consent of the parties, Sh. K.S. Khurana, former Additional District and Sessions Judge, Delhi was appointed as local commissioner to record the evidence of the parties. On 8.2.2012, on an application moved by the respondent under Order 14 Rule 5 CPC, issue No.4 was recast. On the same date, an order was passed directing the parties to file their respective evidence by way of affidavit. The order was that the plaintiff shall, at the first instance, file his entire evidence before the next date. The petitioner/defendant was to file evidence by way of affidavit within two weeks from the next date fixed before the local commissioner.

4. Thereafter, some evidence has been recorded by the respondents. On 13.4.2012, the respondent moved an application under Order VI Rule 17 CPC for amendment of the plaint. This was allowed on 14.9.2012 rejecting the contention of the petitioner that the application has been filed after the evidence had commenced. Thereafter, the original plaintiff passed away on 30.3.2014 and his legal heirs were brought on record. The matter was then listed before this court on 26.5.2015. On that date, this court had directed the parties to appear before the local commissioner and complete their respective evidence including the cross-examination in four hearings each and each session shall be for about two hours. Pursuant to the above order, on 14.10.2015, the evidence of the plaintiff/ respondent was completed. On 19.10.2015, the petitioner has filed his list of witnesses. Subsequently, the present application has been filed.

5. The trial court vide impugned order has dismissed the application to take on record the said list of witnesses. The trial court noted that for extraordinary delay of 1317 days, no sufficient cause has been shown by the petitioner to file the list of witnesses at this stage. The application was accordingly dismissed.

6. I have heard the learned counsel for the parties. The learned counsel for the petitioner, at the outset, states that though his list of witnesses contains 10 witnesses; however, he confines his relief only to three witnesses, namely, witnesses shown at serial No.4, 5 and 10. The above witnesses listed at serial No.4, 5 and 10 are in addition to two witnesses whose evidence has already been filed, who are at serial No.1 and 2 of the said list of witnesses. He also submits that he will complete his evidence within the time frame as fixed by this court on 26.05.2015. He further submits that there was inadvertent delay in filing of the application. In any case he submits that the respondent has also caused delay on account of amendment application filed seeking amendment of the plaint.

7. The learned senior counsel appearing for the respondent has veh