LALITHA J. RAI Vs. AITHAPPA RAI

JUDGEMENT

(1.) LEAVE granted.

(2.) THE appellant plaintiff laid the suit for declaration of title and for possession of the plaint schedule property. On 3.8.1993, the appellant filed an application enclosing the list of witnesses to issue summonses to them for adduction of evidences to prove her case. In the affidavit filed by the husband, who is the general power of attorney -holder, it was stated that he was under bona fide mistaken impression that the list of witnesses was already filed, but he noticed that mistake when he was getting ready, in consultation with the counsel, to adduce evidence at the trial. It was, therefore, stated that the failure to file the list of witnesses was not intentional. Accordingly, he sought permission of the Court to file the list of witnesses. The trial Court in its order dated 6.9.1993 dismissed the application holding that there is no proper explanation for the delay in filing the list of witnesses. On revision, the High Court of Karnataka declined to interfere with the order. Thus, this appeal by special leave.

(3.) IT would, thus, be seen that the legislature did not put a total prohibition on the party to produce the witnesses or the production of the documents for proof of the respective case. Nonetheless, when they seek the assistance of the Court, they are enjoined to give reasons as to why they have not filed the application within the time prescribed under Rule, 1 of Order 16. It is seen that in the application it was stated by the husband of the appellant that they were under the bona fide impression that they have already filed the list of the witnesses along with the documents and that the mistake of non -filing the list was discovered when they were getting ready for the trial. It is not in dispute that the trial is yet to begin. In these Circumstances, we think that the trial Court committed illegality in refusing to receive the list for summoning the witnesses for adduction of evidence by the plaintiff. The appeal is accordingly allowed. The orders of the trial Court and the High Court are set aside. The list already furnished is a valid list. The trial Court is directed to summon the witnesses for examination on behalf of the plaintiff. No costs.