ACHUTANANDA Vs. DHRUBA

JUDGEMENT

(1.) Defendant No. 1 is the petitioner against an order of the trial court refusing to accept the list of witnesses filed by the defendant No. 1 on the date he was to adduce evidence in this case.

(2.) On 7-4-1986, defendant No. 1 filed a list wherein he indicated that he and one Laxmidhar Sahu were in attendance. However, his turn for examination of witnesses did not reach on that date. On 9-4-1986, he filed a list of six witnesses to be examined on his behalf. The plaintiff seriously objected to such a list on the ground that the list was not filed earlier and no acceptable reason has been assigned for such delay in filing the list. The learned trying Judge accepted the submission of the plaintiff and did not allowed the defendant No. 1 to examine witnesses as per the list furnished that day. The same is the subject-matter of this revision.

(3.) Mr. S.Kr. Mohanty, the learned counsel for the plaintiff opposite party No. 1, submitted that the Parliament by incorporating sub-rule (3) to Rule 1 of Order 16, C.P.C. clearly intended that the parties should take steps for summoning the witnesses much earlier to the date of hearing so that both the parties are able to know the nature of evidence intended to be adduced by the other party. In case permission is given at the last moment to examine witnesses, there is every chance of the parties playing hide and seek resulting in the real truth being suppressed. There is strong force in the submission of Mr. Mohanty. When list of witnesses is filed by one party the other party should get a chance to know the nature of evidence which would be adduced. There may not be a fair trial in absence of such opportunity. That, however, does not mean that a party submitting the list of witnesses at a belated stage should be prohibited from adducing any evidence. Trial court ought to have considered that procedure laid down in the Code of Civil Procedure is a handmaid of justice. The same is not to be utilised to obstruct the free flow of justice and proper adjudication. Formality, no doubt, is a hallmark of authenticity. That does not mean that a party should suffer merely because he has not adhered to the formalities laid down in the Civil Procedure Code. Procedure is never mandatory in nature. In just cases it can be condoned.