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2015 Supreme(MP) 703
MADHYA PRADESH HIGH COURT
Sujoy Paul, J.
Mandir Shri Hanuman Murti and another v. Collector Mahoday, Datia
and another
Writ Petition No.4523 of 2014 (Gwalior); Decided on 9.9.2015.
Raja Sharma for petitioner;
Kumar Gaurav Sharma for respondents.
Headnote:Civil P.C., 1908 -- O.16 R.1 and O.7 R.14(3) -- Evidence Act, 1872 -- S.65 -- application for summoning witness -- rejected by Court below -- Court below erred in examining matter with a hyper technical point of view -- a witness can be brought by party even if no list is filed earlier or name of said witness does not figure in said list -- impugned order of Court below is contrary to settled legal position -- impugned order disallowing application under O.16 R.1, CPC is set aside -- application allowed -- petition allowed.
Held : In view of aforesaid legal position, there is no difficulty to hold that Court below has erred in examining the matter with a hyper technical point of view. As per said judgments, a witness can be brought by party even if no list is filed earlier or name of said witness does not figure in the said list. It needs to be remembered that procedural law is made to advance the cause of justice. The same is not made to strangulate the litigant on hyper technical ground.
As analyzed above, the Court below was not justified in disallowing the application preferred under Order 16 rule 1 CPC. More so when related applications preferred under Order 7 rule 14(3) CPC and under section 65 of the Evidence Act were allowed. The impugned order of the Court below runs contrary to settled legal position. Consequently, the impugned order dated 12.5.2014 to the extent application preferred under Order 16 rule 1 CPC was disallowed, is set aside. The application stands allowed. (1983)4 SCC 36 and AIR 1999 SC 1441 followed. 2004 AIR Kar. 172 relied on. 2014(II) MPWN 139 referred on.
flfoy izfØ;k lafgrk] 1908 && vk-16 fu-1 rFkk vk-7 fu-14(3) && lk{; vfèkfu;e] 1872 && /kkjk 65 && lk{kh dks leu djus dks vkosnu && fupys U;k;ky; }kjk [kkfjt && fupys U;k;ky; us ekeys dk vfr rduhdh n`f"Vdks.k ls ijh{k.k djus esa =qfV dh &&,d lk{kh dks ;fn iwoZ esa dksbZ lwph nkf[ky ugha dh xbZ gS ;k dfFkr lk{kh dk uke dfFkr lwph esa vafdr ugha gksrk gS fQj Hkh] i{kdkj }kjk yk;k tk ldrk gS && fupys U;k;ky; dk vk{ksfir vkns'k ifjfu/kkZfjr fof/kd fLFkfr ds foijhr gS && flfoy izfØ;k lafgrk ds vk-16 fu-1 ds v/khu vkosnu ukeatwj djus dk vk{ksfir vkns'k vikLr && vkosnu eatwj && ;kfpdk eatwjA
vfHkfu/kkZfjr % iwoZdfFkr fof/kd fLFkfr dh n`f"V ls] ;g vfHkfu/kkZfjr djus esa dksbZ dfBukbZ ugha gS fd fupys U;k;ky; us ekeys dk vfr rduhdh n`f"Vdks.k ls ijh{k.k djus esa =qfV dh gSA dfFkr fu.kZ;ksa ds vuqlkj],d lk{kh dks] ;fn iwoZ esa dksbZ lwph nkf[ky ugha dh xbZ gS ;k dfFkr lk{kh dk uke dfFkr lwph esa vafdr ugha gksrk gS fQj Hkh i{kdkj }kjk yk;k tk ldrk gSA ;g /;ku j[kus dh vko';drk gS fd izfØ;kRed fof/k U;k; gsrqd vxzlj djus ds fy, cukbZ xbZ gS bls okndkjh dks vfr rduhdh vk/kkj ij vo#) djus ds fy, ugha cuk;k x;k gSA
tSlk fd Åij fo'ys"k.k fd;k x;k] fupyk U;k;ky; flfoy izfØ;k lafgrk ds vk-16 fu-1 ds v/khu izLrqr vkosnu dks ukeatwj djus esa U;k;laxr ugha FkkA blds vfrfjDr tcfd flfoy izfØ;k lafgrk ds vk-7 fu-14¼3½ rFkk lk{; vfèkfu;e dh /kkjk 65 ds v/khu izLrqr vkosnu eatwj dj fy, x,A fupys U;k;ky; dk vk{ksfir vkns'k ifjfu/kkZfjr fof/kd fLFkfr ds izfrdwy gSA ifj.kkeLo:i vk{ksfir vkns'k fnukad 12-5-2014] flfoy izfØ;k lafgrk ds vk-16 fu-1 ds vèkhu izLrqr fd, x, vkosnu dh lhek rd vikLr fd;k x;k gSA vkosnu eatwj fd;k x;k gSA ¼1983½4,l lh lh 36 rFkk , vkb vkj 1999 ,l lh 1441 vuqlfjrA , vkb vkj 2004 dukZ- 172 voyafcrA 2014¼2½ e-iz- ohDyh uksV~l 139 fufnZ"VA
1. The petitioner is aggrieved by order dated 12.5.2014 whereby his application preferred under Order 16 rule 1 CPC for summoning the witness for evidence has been rejected by the Court below.
2. Shri Raja Sharma, learned counsel for the petitioner, submits that petitioner preferred an application under Order 7 rule 14(3) CPC along with another application under section 65 of the Evidence Act. These applications were relating to compact disk (CD) of the photographer and certain photographs of suit property. The Court below allowed the said applications preferred under Order 7 rule 14(3) CPC and under section 65 of the Evidence Act respectively. However, the application under Order 16 rule 1 CPC was rejected on the ground that per the sub-rule (1) of Order 16 CPC, the plaintiff was required to file list of witnesses within 15 days from the date of framing of issues. As per sub-rule (3) of said rule, the new witness other than the witnesses whose names are mentioned in the said list, may be called provided leave/permission is granted by the Court. The party seeking such permission needs to assign reason for not mentioning the name of such new witness in the said list. The Court below opined that in the present case the plaintiff did not submit any list of witnesses. Hence, he cannot be permitted to summon the witness through Court.
3. By placing reliance on (1983)4 SCC 36 (Mangeram v. Brij Mohan), Shri Raja Sharma submits that finding of Court below runs contrary to the settled legal position. He submits that as per requirement of section 65B of Evidence Act the statement of photographer is necessary. The Court below has taken technical approach after having allowed other two applications relating to the same photograph/CD. The order of Court below was not justifiable and needs interference in this petition under Article 227 of the Constitution .
4. Shri Kumar Gaurav Sharma placed reliance on various clauses of Order 16 rule 1 CPC and urged that there is no legal error in the order of Court below.
5. No other point is pressed by learned counsel for the parties.
6. I have heard the parties and perused the record.
7. In my view, the apex Court has drawn curtains on the question involved in this case. In Mangeram (supra), the apex Court opined as under :
“There is no inner contradiction between sub-rule 1 of rule 1 and rule 1A of Order XVI. Sub-rule (3) of rule 1 of Order XVI confers a wider jurisdiction on the Court to cater to a situation, where the party has failed to name the witness in the list and yet the party is unable to produce him or her on his own under rule 1A and in such a situation the party of necessity has to seek the assistance of the Court under sub-rule (3) to procure the presence of the witness and the Court, may if it is satisfied that the party has sufficient cause for the omission to mention the name of such witness in the list filed under sub-rule (1) of rule 1, the Court may still extend its assistance for procuring the presence of such a witness by issuing a summons through the Court or otherwise which ordinarily the Court could not extend for procuring the attendance of a witness whose name is not shown in the list. Therefore, sub-rule (3) of rule 1 and rule 1A operate in two different areas and cater to two different situations.”
8. The said view was followed by Supreme Court in (Vidhyadhar v. Manikrao), reported in AIR 1999 SC 1441. the apex Court opined as under:
“30. These two rules read together clearly indicate that it is open to a party to summon the witness to the Court or may, without applying for summons, bring the witnesses to give evidence or to produce documents. Sub-rule (3) of rule 1 provides that although the name of a witness may not find place in the list of witnesses filed by a party in the Court, it may allow the party to produce a witness though he may not have been summoned through the Court. Rule 1A which was introduced by the Code of Civil Procedure (Amendment) Act, 1976 with effect f
