RAHIMA BI Vs. MOHAMMAD KHASIM SAHEB

JUDGEMENT

(1.) This revision airises out of an order upholding tha objection taken by the defendants that the plaintiff should not be permitted to examine the witnesses as he failed to furnish list of witnesses within fifteen days of the data on which the issues are settled as required under Or.16 rule 1 C P C. The court upheld this objection and directed that the witness who was examined in part should not be allowed to be continued in the further examination as the mandatory provisions of Or. 16 rule 1 C PC are not complied with.

(2.) This rule is introduced by the Amendment Act 1976. It is necessary to look to the previous rule Or. 16 rule 1 and new rule Or. 16 rule 1 C P C.

(3.) Subject to the discretion of the court in Sub-Rule (3) of Rule 1, the party can bring any witness to give evidence or produce documents without summons. It is seen the amendment in rule 1-A is only consequential but the requirement of filing the list of witnesses stating the purpose of summoning them introduces a healthy principle in procedure as the other party will be in a position to know the names of the persons who are going to be examined by the adversary. An effective crossexamination is possible when the witnesses are known in advance. No doubt the rigour of the rule in sub-rule (1) of rule 1 is taken away giving discretion to the court under sub-rule 3 permitting the party to examine a person whose name is not found in the list originally filed. The basic requirement of this rule is filing the list of witnesses to be examined before summoning them. No doubt the time limit of two weeks should be complied with but the court has got discretion to extend that period under Sec. 148 of the C P C and hence I am of the opinion that the failure to file the list of witnesses is clearly in contravention of rule 16 (1). It is true tha provision is given retrospective effect and does not come within the Exceptions enumerated in Sec. 97 (2) of the Amendment Act 104 of 1976. But considering the fact that the suit was fiied prior to the Amendment Act came into force the parties and the counsel proceeded with the trial as per the provisions of the Civil Procedure Code before its amendment. Issues were framed in this case on 17-9-1974 and additional issues were framed in 1978 twice and it is obvious that the counsel for the plaintiff is not having in his mind the new procedure prescribed under Or. 16 rule 1 C P C. Further when the witness was examined in part, we must hold that the discretion under sub-rule (3) is exercised and the infirmity of non-compliance with sub-rule (1) no longer subsists. It is true that the statutory provision should not be violated and disregarded. But considering the fact that it is a new provision and the suit was filed prior to the coming into force of the amendment act and the witness was already examined in part it is just and proper that the plaintiff should be permitted to examine the witness in the interests of justice. Hence I hold under these proceedings the court must be deemed to have exercised the discretion under sub-rule (3) of rule 1 of Or.16 as it permitted the witnesses to be examined in part. To avoid unnecessary delay by directing the court to record the reasons under sub-rule (3). I proceed to record the said reason. The reason for the non compliance of sub-rule (1) of rule 1 is the counsel has over looked the new provision in sub-rule (1) as it came into force long subsequent to the suit was filed That reason is sufficient to exercise the discretion given to the court under sub.rule (3).