1. A defendant in a recovery suit sought to summon witnesses after failing to file a predefined list, invoking broad judicial discretion to secure necessary evidence. (Para 1 , 2 , 3 )
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2026 Supreme(Online)(Bom) 5625
IN THE HIGH COURT OF BOMBAY AT GOA BENCH
Imtiyaz Shaikh Z Chorlekar – Appellant
Versus
Salman Shaikh – Respondent
WRIT PETITION NO. 538 OF 2026
Legal Category Hierarchy
Table of Contents
2. Petitioner claimed inherent court powers to summon witnesses despite non-compliance with procedural lists; Respondent argued such late applications lack sufficient cause and merely protract litigation. (Para 4 , 5 )
3. The court found technical non-compliance with procedural rules regarding witness lists does not prohibit summoning witnesses essential to determining the real controversy between parties. (Para 6 , 7 )
4. Procedural adherence to witness list requirements can be relaxed where sufficient cause is shown, and the examination is necessary for fair adjudication of the real controversy. (Para 7 , 8 )
5. The writ petition is partly allowed, setting aside the order refusing witness summons for the tax authority representative while maintaining the refusal for other witnesses. (Para 8 , 9 )
6. Can a party summon a witness even if they failed to file a list of witnesses as required by Order XVI Rule 1 of the CPC?
Yes. Failure to file a list of witnesses under Order XVI Rule 1 does not create an absolute prohibition on summoning witnesses. A court retains the power under Rule 1(3) to permit the summoning of a witness if sufficient cause is shown for the delay and the evidence is necessary to decide the real controversy. (Para 3 , 4 , 6 , 7 )
7. What standard must be met to invoke procedural discretion to summon a witness post-default?
The party seeking to invoke the court's discretion must provide sufficient justification for not filing the witness list in the prescribed time and demonstrate that the proposed witness is relevant and necessary for resolving the substantive issues in the suit. (Para 6 , 7 )
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Andreza IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 538 OF 2026 Shri Imtiyaz Shaikh Z Chorlekar, Son of Chandol Shaikh, 55 years of age, married, business, Indian National, r/o. H. No. 104/52, Shamshad Manzil, Makhdoom Ashraf Nagar, Consua, Cortalim, Goa. … Petitioner V e r s u s Shri Salman Shaikh, Son of Mr.Babu Shaikh, Age 32 years, Civil Engineer, Having office at Shop No. 31, 1st Floor, Karma Point, Vasco Da ...Respondent Gama, Goa.
Mr. Dinesh Naik, Advocate for Petitioner.
Mr. V. Braganza, Advocate with Mr. Sagar Rivankar, Advocate for Respondent.
CORAM : S. G. CHAPALGAONKAR, J. RESERVED ON : 14th OCTOBER 2026 PRONOUNCED ON : 21st OCTOBER 2026
ORDER
1. Petitioner impugns Order dated 04.05.2026 passed by Civil Judge, Senior Division ‘A’ Court, at Vasco da Gama, in Special Civil Suit No. 10/2021/A, thereby rejecting Petitioner’s application filed at Exhibit 46 for issuance of witness summons to Principal of Jain College of Engineering and Assistant Commissioner of CGST.
2. The Petitioner and Respondent entered into a contract of construction of residential bungalow of Respondent-Plaintiff. In pursuance to contract, Respondent-Plaintiff completed construction work and raised various bills and tax invoices for works executed and some additional works. According to Petitioner, Respondent failed to realise the bills, hence he instituted Special Civil Suit No. 10/2021/A before Civil Court at Vasco da Gama, for recovery of amount of Rs.20,38,673.47 with interest @ 18% per annum. The Respondent contested Petitioner’s claim by filing written statement and denied the claim in toto. It is contended that no contract was executed between the parties and bills placed on record are forged.
##PAGE2##3. The Respondent-Plaintiff concluded his evidence. The Petitioner- Defendant filed application under Order XVI Rule 1(2) and (3) of Civil Procedure Code (CPC), seeking issuance of summons to Principal of Jain College of Engineering and Assistant Commissioner of CGST, contending that Respondent-Plaintiff was student at relevant time and GST number mentioned on the bills relied by him are non-existent. Trial Court declined to entertain Petitioner’s application on the ground that Petitioner failed to file list of witnesses at appropriate stage and conduct of Petitioner shows that he wants to protract the proceedings by various modes.
4. Mr. Dinesh Naik, learned Counsel appearing for Petitioner, submits that mere failure on part of a party to file list of witnesses does not, by itself, preclude such party from summoning witnesses. He would submit that permission to summon such witnesses can be granted under sub-rule (3) of Rule 1 of Order XVI of CPC. Petitioner’s right to seek permission of Court under sub-rule (3) of Rule 1, to call/summon any witness, cannot be taken up. He would submit that sub-rule (3) of Rule 1 of Order XVI confers a wider jurisdiction on the Court to cater a situation where party has failed to name witness in list and yet the party is unable to produce him or her on his own under Rule 1A.
##PAGE3##In support of his contention, he relies upon observations of this Court in cases of Rajendra Mohanlal Rathi vs. Ramsingh Punjabi & anr.1 and Dinesh Singh Bhim Singh vs. Vinod Shobhraj Gajaria & anr.2, the observations of Rajasthan High Court in case of LIC of India & Ors. vs. Ram Prakash, 2003 (3) LJR 404, and observations of Karnataka High Court in case of Rehman Hussain vs. Althaf Hussain & anr., AIR 2004 KARNATAKA 172
5. Per contra, Mr. Braganza, learned Advocate appearing for Respondent, supports impugned Order contending that neither Petitioner submitted the list of witnesses nor he could supply reasons
as to why the application was not filed within time prescribed under Rule 1 of Order XVI. He would submit that Petitioner may produce any witness without assistance of the Court and cannot insist the Court to issue witness summons.
In support of his contention
