Provisions of Order 16 Rule 1 CPC are directory in nature and delay in filing list of witnesses can be condoned by court in absence of prejudice to other party.

Alok Sharma, J.

This petition has been filed against the order dated 18.7.2013 passed by the Civil Judge (Junior Division) Kishangarh Bas, Alwar allowing an application under Order 16, Rule 1 CPC filed by the respondent-defendant (hereinafter the defendant') and directing the list of witnesses filed by the petitioner plaintiff (hereinafter 'the plaintiff) to be removed from the case file of the suit for declaration and permanent injunction pending before it and instead kept in the 'D' file.

2. The facts of the case are that the plaintiff laid a suit against the defendant for declaration and permanent. Details of the suit are not relevant in the context of issue in the present petition. On service of notice of the plaint on the defendant, written statement of denial came to be filed thereto Consequently on 6.10.2010 issues were framed. In terms of Order 16, Rule 1 CPC not later than fifteen days after the date on which the issues are settled the parties "shall" present in court a list of witnesses they propose to call either to give evidence or to produce documents and obtain summons to such persons for their attendance in court. It appears that in spite of settlement of issues on 6.10.2010 the plaintiff filed the list of witnesses before the trial court only on 28.10.2010. Based on the list of witnesses filed by the plaintiff summons were issued to witnesses for their evidence on 2.4.2011 Summons were served and on 2.4.2011, RW. 4 Ram Sharma s/o Prabhu Dayal filed affidavit, copy of which was supplied to counsel for the defendant. During the cross examination of Ram Sharma, the counsel for the defendant sought time to file an application, therefore the cross examination of Ram Sharma was deferred. Thereupon the defendant filed an application under Order 16, Rule 1 CPC praying therein that list of plaintiffs witnesses be removed from the record of the trial court in view of it having been filed beyond 15 days following the settlement of issues on 6.10.2010. The plaintiff filed reply to the application under Order 16, Rule 1 CPC, along with medical certificates stating therein that effective 6.10.2010 he was purportedly admitted at the Primary Health Center Tapookada, Alwar district and was advised rest, consequent to which upto 27.10.2010 he could not travel to the court to contact his Advocate and file the requisite list of witnesses.

3. The matter was thereupon considered by the trial court and by its vide impugned order dated 18.7.2013 the defendant's application under Order 16, Rule 1 CPC filed by defendant was allowed and removal of list of plaintiffs witnesses from the court file directed and in stead its inclusion in paid 'D' of the record required. The reason which prevail with the trial court in passing the impugned order dated 18.7.2013 fundamentally was that even though the plaintiff had stated in his reply to application under Order 16, Rule 1 CPC that he had been admitted at Primary Health Center Tapookada, Alwar, in proof : thereof neither the admit card nor the discharge card had been filed. Holding that the reason for delay in filing the list of witness was not sufficiently explained the trial court directed as detailed hereinabove. Hence this petition under Article 227 of the Constitution of India.

4. Mr. Rahul Kamwar, the learned counsel for the plaintiff has stated that J the provisions of Order 16, Rule 1 CPC are merely directory in nature and a mere ten days delay in filing the list of witnesses was not all prejudicial to the defendant nor indicative of reckless, lack of vigilance by the plaintiff. He has submitted that the fact that power vests in the court under Order 16, Rule 1 (3) CPC to call any witnesses other than those whose name appeared in the 3 list of witnesses, clearly indicates that there is no iron-clad mandatory time frame for submitting the list of witnesses, albeit the list of witnesses should ordinarily be submitted within fifteen days otherwise thereafter within a reasonable time f