CHANDRAKANT VISHNU DESSAI Vs. VINAYAK VITHAL NAIK

JUDGEMENT

(1.) This revision raises a short but important question which relates to the power of the Court to refuse to issue summons on an application made by one of the parties beyond the specified time as provided in O.16, R.1 of the Code of Civil Procedure, 1908 (as amended by Act 104 of 1976).

(2.) The following facts may be stated. The petitioners as plaintiffs instituted Civil Suit No. 8/77 in the Court of Civil Judge Sr. Div., Bicholim. After filing of the written statement by the respondents, issues were settled on 9-12-1977. On that day parties were directed to file their list of witnesses within 15 days evidently in terms of Rule 1 of Order 16 C.P.C. The respondents filed their list on 17-12-1977. Only on 26-4-1978 when the trial commenced, after the examination of P.W. 1 was over, an application to the above effect was filed. In the said application the plaintiffs stated that hitherto i.e. before the amendment to the C.P.C., a date for filing list of witnesses used to be fixed. The failure to file a petition within the specified time was therefore not mala fide but merely technical. On behalf of the defendants on the aforesaid petition itself objection to its being granted was endorsed.

(3.) On behalf of the plaintiffs argument was advanced before the trial Court that the defendants would not be taken by surprise if the list was admitted, at that stage. In support of the above contention reliance was placed on a decision reported in AIR 1963 Raj 225. The counsel for the defendants argued that the aforesaid ruling was not attracted because it related to the position prior to the amendment. The learned Civil Judge accepted the contention raised on behalf of the defendants without however assigning any reason or interpreting the Rule.