The court has the power to refuse to issue summons beyond the specified time as provided in O.16, R.1 of the Code of Civil Procedure, 1908, but it should take a liberal attitude and should not stick to technicalities.

ORDER :- This revision raises a short but important question which relates to the power of the Court to refuse to issue summons on an application made by one of the parties beyond the specified time as provided in O.16, R.1 of the Code of Civil Procedure, 1908 (as amended by Act 104 of 1976).

2. The following facts may be stated.

The petitioners as plaintiffs instituted Civil Suit No. 8/77 in the Court of Civil Judge Sr. Div., Bicholim. After filing of the written statement by the respondents, issues were settled on 9-12-1977. On that day parties were directed to file their list of witnesses within 15 days evidently in terms of Rule 1 of Order 16 C.P.C. The respondents filed their list on 17-12-1977. Only on 26-4-1978 when the trial commenced, after the examination of P.W. 1 was over, an application to the above effect was filed. In the said application the plaintiffs stated that hitherto i.e. before the amendment to the C.P.C., a date for filing list of witnesses used to be fixed. The failure to file a petition within the specified time was therefore not mala fide but merely technical. On behalf of the defendants on the aforesaid petition itself objection to its being granted was endorsed.

3. On behalf of the plaintiffs argument was advanced before the trial Court that the defendants would not be taken by surprise if the list was admitted, at that stage. In support of the above contention reliance was placed on a decision reported in AIR 1963 Raj 225. The counsel for the defendants argued that the aforesaid ruling was not attracted because it related to the position prior to the amendment. The learned Civil Judge accepted the contention raised on behalf of the defendants without however assigning any reason or interpreting the Rule.

4. The substituted Rule 1 lays down the procedure for the filing of list of witnesses by the parties within a specified time and provides that a person not mentioned in the list shall not be produced as a witness without the permission of the Court. It further requires that the application for issue of summons should indicate the purpose for which the summons is being obtained. In Rajasthan, even before the amendment of R.1(i) in 1976, Order 16(I) was amended and the specified time mentioned therein was 30 days. So Order 16, Rule 1(i) C.P.C. as amended in Rajasthan required a party to present in Court list of witnesses within 30 days after the settlement of issues. The Rajasthan High Court had occasion to interpret Order 16, Rule 1(i) C.P.C. as amended in Rajasthan in the case of Prabhu Dayal v. Girraj Kishore, AIR 1963 Raj 225 and the Court observed as follows:-

"Even when there is no list, Courts power to take evidence of any witness remains unfettered. In a given case it may happen that a party may feel, that he is not in need of producing a witness and may not make an application as required under O.16, R.1(i) but at a later stage in the case the same party may realise that it is necessary to examine some witnesses on his behalf. Even in such a case the Court may grant permission to that party to produce witnesses. This may be done under O.16, R.1(ii). The case may be taken as one in which the list has been filed containing no name of any witness."

Though the aforesaid decision has been rendered in the year 1958, that is to say, long before the amendment, the principle decided therein has great relevance, to the point to be decided in this case.

5. It may be pointed out here that rules of procedure are meant to advance the cause of justice and not to hamper it. The Supreme Court in Sangram Singh v. Election Tribunal Kotah, AIR 1955 SC 425 has observed :-

"Now a Code of Procedure must be regarded as such. It is procedure something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore