ORDER

1. The petitioner has preferred this miscellaneous petition under Article 227 of the Constitution of India being aggrieved by order dated 1.6.2024 passed by Civil Judge Class-I, Karera, District Shivpuri in Civil Suit No.99A/2022, whereby an application under Order 16 Rule 1 read with section 151 of CPC filed by the petitioner/defendant has been dismissed.

2. Learned counsel for the petitioner submits that petitioner has requested to call the witness by sending summons because after recording the statement of witness Vijay Narware, matter was adjourned and due to threat given by plaintiff, witness Vijay Narware did not come to the Court, therefore, calling him through summons is quite necessary. The Trial Court has ignored the aforesaid facts. Hence, he prays that the impugned order be set aside and his application may be allowed.

3. Counsel for the respondent/plaintiff opposed the prayer and prayed for its rejection by supporting the impugned order passed by the trial Court.

4. Heard learned counsel for both the parties.

5. From perusal of Order 16 rule 1 (3) of CPC, 1908, it is clear that the Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the said list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.

6. Co-ordinate Bench of this Court in the case of Hasananand v. Vinod & Anr. (M.P.No.6463/2022) vide order dated 27.2.2023 held as under:-

"17. Thus, as a straight jacket formula, it cannot be said that in every case where there is a delay on the part of plaintiff to prefer an application under Order 16 rule (1)(3) of C.P.C., the application must be thrown on the ground of delay. It depends on the facts and circumstances of the case as well as the necessity and relevance of the witnesses sought to be introduced /requisitioned."

7. The Hon'ble apex Court in the case of Vidhyadhar v. Manikrao reported in (1999) 3 SCC 573 : AIR 1999 SC 1441, 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 1-A which was introduced by the Code of Civil Procedure (Amendment) Act, 1976 with effect from 1.2.1977 has placed the matter beyond doubt by providing in clear and pecified terms that any party to the suit may bring any witness to give evidence or to produce documents. Since this rule is subject to the provisions of sub-rule (3) of rule 8 1, all that can be contended is that before proceeding to examine any witness who might have been brought by a party for that purpose, the leave of the Court may be necessary but this by itself will not mean that rule 1-A was in derogation of sub-rule (3) of rule 1. The whole position was explained by this Court in Mange Ram v. Brij Mohan, AIR 1983 SC 925 : (1983) 4 SCC 36 : (1983) 3 SCR 525, in which it was held that sub-rule (3) of rule 1 and rule 1-A operate in two different areas and cater to two different situations.”

8. In the instant case, in the considered opinion of this Court, in order to prove the pleadings of defendant/petitioner, the aforesaid witness sought to be requisitioned are relevant, although his examination-in-chief has been recorded but he is not turning before the Trial Court for any reason, therefore, the request made by the petitioner appears to be bonafide and the order for rejection of the said application solely on the ground of causing delay cannot be accepted.

9. Accordingly, impugned order dated 1.6.2024 is set aside and the application under Order 1