The mandatory provisions of Order 16, Rule 1, Civil Procedure Code, regarding the filing of a list of witnesses and obtaining summonses for their attendance in court within 15 days after the settlement of issues, can be relaxed by the court in appropriate circumstances, if the party shows sufficient cause for the omission.

S.K. Dubey, J.

1. The petitioner/tenant, who is a defendant in a suit instituted on 4-9-1984 by the respondent No. 1/landlord in the Court of Third Civil Judge, Class II, Sheopurkalan, after the close of the evidence of the plaintiff on 8-5-1992, applied on 13-5-1992 under Order 16, Rule 1, Civil Procedure Code, for issue of summonses to the two witnesses out of three for their examination. That application on opposition of the plaintiff was dismissed by the trial Court holding that the list of witnesses was not filed within 15 days after the date on which the issues were settled as required under Order 16, Rule 1. The petitioner aggrieved of the order, preferred a revision which was also dismissed; hence the petitioner has approached this Court under Article 227 of the Constitution of India for quashing of the two orders and for a direction to the trial Court to issue summonses to the two witnesses for their attendance in Court.

2. Shri R. D. Jain, learned counsel for petitioner, contended that the plaintiff himself did not file the list of witnesses within 15 days after the settlement of issues, but filed the list on 14-2-1991 and made a prayer for issue of summonses, though the issues were settled on 31-10-1986. The trial Court allowed the said prayer. The plaintiff sought adjournments for completing his evidence. The petitioner/defendant never indulged in delaying tactics; therefore, the trial Court ought not to have taken a hyper-technical view, as the prime duty of a Court of law is to administer justice and the inaction of the petitioner in not filing the list of witnesses, in the circumstances of the case, should not defeat the cause of justice. The two witnesses sought to be examined by petitioner, are material witnesses, one of whom is the brother and tenant of the plaintiff, and the other is also a tenant; by their examination the petitioner wants to establish that the plaintiff has no bona fide requirement, as the plaintiff has entered into a compromise with the aforesaid witnesses and allowed them to continue as tenants. In any case, the trial Court should have allowed the application in the interest of justice under Order 16, Rule 1(3), Civil Procedure Code. Reliance was placed on a short noted Single Bench decision of this Court in case of Ajendra Kumar v. Laxminarayan, 1989 (II) MPWN 125.

3. On the other hand, Shri S. S. Bansal, learned counsel for the respondent/plaintiff placing reliance on a decision of the Supreme Court in case of Mange Ram v. Brij Mohan, AIR 1983 SC 925, contended that as ruled by the Supreme Court and is evident from the language of Order 16. Rule 1, that where the party wants the assistance of the Court to procure presence of a witness on being summoned through the Court, it is obligatory on the party to file the list with the gist of evidence of the witness in the Court as directed by Sub-rule (1) of Rule 1 and make an application as provided by Sub-rule (2) of Rule 1. That having not been done, there was no option to the Court but to reject the prayer. Learned counsel also submitted that the petitioner, if so advised, may produce the said witnesses and examine them. For that the respondent/plaintiff will have no objection.

4. On reading of Order 16, Rule 1, Civil Procedure Code, it is clear that in a suit, after the issues are settled, a party is bound to present in Court a list of witnesses whom he proposes to call either to give evidence or to produce documents, and obtain summonses to such persons for their attendance in Court. Such list must be filed on or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled. Under Sub-rule (2) of Rule 1 of Order 16 a party desirous of obtaining any summons for the attendance of any person, has to file an application in Court stating therein the purpose for which the witness is proposed to be summoned. Sub-rule (3) of Rule 1 confers a discretion on the Court to permit a party to