Procedural rules must facilitate justice; courts can allow witness examination to ensure fair proceedings, preserving rights of all parties involved.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

Heard learned counsel for the petitioner and learned counsel for the opposite party.

2. This petition has been filed under Article 227 of Constitution of India for setting aside order dated 15.05.2024 passed by the learned Civil Judge Senior Division-I, Bokaro in Title Suit No. 48 of 2008 whereby the petition filed by plaintiff/opposite party under Order XVI Rule 1(2) and 1(3) read with Section 151 of C.P.C. has been allowed.

3. Learned counsel for the petitioner submits that the plaintiff has filed the petition for examining the witness which has been allowed by the learned court in absence of any cogent reason in view of that said order is illegal which may kindly be set aside.

4. Learned counsel for the opposite party submits that the learned court has elaborately dealt with the situation and has come to the conclusion that Jai Narayan Singh is required to be examined in light of interest of justice and for just and proper decision of the case and that has been done at the cost of Rs. 1,000/-. She submits that right of the defendant has not been taken away by the said order.

5. Order XVI Rule 3 of C.P.C. clearly stipulates that reasons be recorded. Any witness other than those whose name appear in the list preferred in sub rule 1 can be called by the learned court.

6. The learned court has found that witnesses are refusing to examine and in the interest of just and for just and proper decision of the case the learned court has allowed the said petition.

7. In the case of “Kailash Vs. Nanhku and others”(2005) 4 SCC 480 the Hon’ble Supreme Court has held in para 28 as under:

"28 All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna lyer, J. in Sushil Kumar Sen vs. State of Bihar (1975) 1 SCC 774 are pertinent: (SCC p. 777, paras 5-6)

"The mortality of justice at the hands of law troubles a Judge’s conscience and points an angry interrogation at the law reformer.

The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence processual, as much as substantive."

8. In view of above facts that witnesses were refusing to examine and the case was pending decision is required to be made on the pending suit as the Court has not only expected to be a listener only rather he is required to actively participate in the proceeding to come to the correct decision

9. In the light of above, the Court finds that there is no illegality in order and that order was allowed at the cost of Rs. 1,000/-. However, right of the defendant in cross examining the said witness has not been taken away by the learned court and that was kept open.

10. In view of above facts, reasons and analysis no case of interference is made out. Accordingly, this petition is dismissed. Pending I.A, if any, stands dismissed.