The main legal point established in the judgment is the interpretation and application of the provisions of Order XVI, Rule 1 and Rule 1A of the CPC, specifically regarding the submission of a list of witnesses and the conditions for calling witnesses not mentioned in the list.

JUDGMENT :

1. Heard Mr. P.K. Kalita, learned senior counsel assisted by Mr. K.R. Baruah, learned counsel for the petitioner. Also heard Mr. B.D. Deka, learned counsel for the respondents.

2. The respondent-plaintiffs filed T.S. No. 309/2011 in the court of learned Munsiff No. 2, Kamrup (M) at Guwahati against the defendant-petitioner seeking for declaration of right, title and interest including cancellation of sale deed bearing Nos. 253/2002 and 2915/2011 and for permanent injunction. The defendant-petitioner filed his written statement. While the suit was at the stage of evidence of plaintiff's witnesses on 27.1.2017 a petition under order XVI, rules 5 and 7 of the CPC was filed by the plaintiff side with a prayer that as five numbers of the witnesses of the plaintiff side were cross-examined and duly discharged as such the official witnesses were required to be summoned to prove the documents supplied by the Government officials. It is pertinent to mention herein that in the said petition. It was stated that the list of witnesses was filed on 2.9.2015 as recorded in the case records in the court but the same was not available on records on the date of filing the said petition on 27.1.2017. The defendant-petitioner filed his written objection. In the said objection, it was specifically stated that as the list of witnesses was not available on records as stated by the plaintiffs respondents, until and unless the said requirements are complied the question of proceeding under order XVI, rules 5 and 7 of the CPC for summoning the official witnesses does not arise. The learned court below vide order dated 24.3.2017 rejected the said prayer made by the plaintiffs respondents on the grounds that the plaintiffs respondents did not specify as to whom they sought to call for as official witnesses nor official designation of the witnesses were mentioned. Accordingly, on the ground of ambiguity, the said petition was rejected.

3. Again on 9.4.2017 another application under order XVI, rules 1(2), 1(3) and 6 of the CPC was filed seeking the leave of the court to issue summons to the witnesses specified in the said petition along with documents to be brought in. The defendant-petitioner filed his written objection. The learned Court below of Munsiff No. 2, Kamrup (M) vide its impugned order dated 11.8.2017 allowed the said petition directing the plaintiffs respondents to take steps for calling the official witnesses specified in the said order. While passing the impugned order the learned court below held that vide earlier order dated 24.3.2017 a petition of the same nature was rejected only on the ground that it was silent about the designation of the official witnesses and as such the said order had no effect in the subsequent order.

4. Mr. Kalita, the learned senior counsel submitted that order XVI, rule 1, CPC stipulates that the parties to a suit are required to submit the list of witnesses within a specific time limit indicating the witnesses proposed to be called for. But in the present case admittedly there was no list of witness on records of the plaintiff respondents so the question of issuance of summons to the witnesses as allowed by the court below does not arise. It is further argued that in order to invoke the jurisdiction by the court below under order XVI, rule 1(3) it is mandatory that the list of witnesses must be filed. But the learned court below failed to take note of the said requirement and granted the leave to issue summons to the witnesses of the plaintiffs respondents without there being a list of witness on record. In support of the said submission Mr. Kalita relies Gauranga Mandal v. Deba Das Sarkar, (2012) 5 Gau LT 144.

5. Mr. Deka, the learned counsel for the respondents submitted that in the first application filed by the plaintiff respondents on 27.1.2017 for issuance of summons to the official witnesses they did not mention the relevancy of the witnesses in the proceeding and designation of the official witnes