1989 Supreme(MP) 645

IN THE HIGH COURT OF MADHYA PRADESH
B. M. LAL, J.
Ajendra Kumar - Appellant
Versus
Laxminarayan - Respondent
C. R. No. 524 of 1987 (J)
Decided on : 06-07-1989

Headnote:(1) Civil Procedure Code, 1908 – O. 16, R. 1 (2), (3) and 1 – A – R. 1 – A and sub – rule (3) of R. 1 – speak of different situations – R. 1 – A has got no overriding effect on sub – rule (2) of R.1.

       (2) Civil Procedure Code, 1908 – O. 16, R. 1 (2) – opportunity to file application under – may be given in interest of justice.

        Short Note

       1. This is a revision petition u/s 115 of the Code of Civil Procedure and is directed against a slipshod order dated 18 – 11 – 1987, whereby the list submitted by the applicant for summoning the witnesses, has been rejected on the ground, inter alia, that no purpose for which the witnesses are proposed to be summoned, has been assigned.

       2. Held : Sub – rule (2) of rule 1 of order XVI of the Code of Civil Procedure, specifically envisages that a party desirous of obtaining any summons for the attendance of any person, shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. Shri N. P. Dubey, learned counsel for the applicant candidly submitted that no purpose for which the proposed witnesses are to be summoned, has been assigned. However, Shri Dubey vehemently contended that provision of newly added rule 1 – A to order XVI specifies that any party to the suit may, without applying for summons under rule 1, bring any witness to give evidence or to produce documents. By referring to this provision, he submitted that when without summoning the witnesses, the party to the litigation can bring witnesses to give evidence or to produce documents, under the circumstances, if no purpose for which the witness is proposed to be examined is assigned in the application, on that count alone, the application cannot be rejected.

       3. In A.I.R. 1983 S. C. 925 (Mangaram v. Brij Mohan and others) the Apex Court, while considering the relevant provisions referred to above, ruled that there is no inner contradiction between sub – rule (1) of rule 1 and R. 1 – A of order 16. Sub – rule (3) of rule 1 of order 16 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 1 – A, and in such a situation, the party of necessity, has to seek 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 would 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 1 – A operate in two different areas and cater to two different situations.

       4. Therefore, the two situations contemplated under sub – rule (3) of order 16 and rule 1 – A have been distinguished by the Apex Court. As such the provision of rule 1 A of order 16 speaks of a different situation and the submission so made by Shri N. P. Dubey that by enacting rule 1 – A under order 16 has got an over – riding effect of sub – rule (2) of order 16, has no merit. As these two different provisions have been enacted for two different situations, arising in the case and for want of assigning the purpose for which the witnesses are proposed to be summoned, the trial Court has rightly rejected the application.

       5. However, Shri Dubey submitted that if this rigid view is taken into consideration, it may result in failure of justice causing irreparable injury to the litigant concerned. He, therefore, submitted that the applicant may be afforded an opportunity to submit an application for summoning witnesses in accordance with the provision of sub – rule (2) of order 16 of the C. P. C. The submission so made, has some force.

       6. It is, therefore, directed that the applicant shall file a fresh application before the trial Court in accordance with the provision of sub – rule (2) of rule 1 of order XVI of the Code of Civil Procedure stating therein the purpose for which the witnesses are proposed to be summoned. AIR 1983 SC 925 followed. Revision disposed of.