MUSTT ANJIRA KHATOON CHAUDHURY Vs. TAPAN KUMAR DAS

JUDGEMENT

(1.) Petitioner, as plaintiff, instituted Title Suit No. 12/2012 in the Court of learned Munsiff Court No. 1, North Lakhimpur against the present opposite party as sole defendant for his eviction from the suit premises on the ground of bona-fide requirement. In the said plaint, the petitioner stated that suit house is required for use by one of her daughters. At this stage, the defendant filed an application for impleadment of daughter of the plaintiff, namely, Musstt. Sabina Yasmin as party in the suit. The application was rejected by the learned Trial court by order dated 03.08.2012 which was brought under challenge before this Court by the tenant in CRP No. 478/2012. This Court after hearing the parties affirmed the order passed by the learned Trail court and thus the daughter of the plaintiff could not be made a party in the suit. Thereafter, plaintiff led evidence in support of the plaint and the evidence of the plaintiff having been closed, defendant was asked to produce his witnesses. The defendant submitted a list of witness containing 5 witnesses out of which 3 were examined as DW1, DW 2 and DW 3. Thereafter, defendant filed an application on 06.04.2013 before the learned Trial court making prayer for examining Musstt. Sabina Yasmin, the elder married daughter of the plaintiff as witness in this case on his behalf. In the application it is merely stated that examination of Musstt. Sabina Yasmin is necessary to establish his case. However, the application did not disclose as to why the name of Sabina Yasmin was not mentioned in the list of witness submitted by the defendant under Order 16, Rule 1 of the Code of Civil Procedure. By filing an objection, the plaintiff opposed the application wherein it was also disclosed that on earlier occasion, the defendant had made prayer for impleading Musstt. Sabina Yasmin as party to the suit and the suit was delayed for such prayer of the defendant. The order passed by the learned Trail court refusing to implead Musstt. Sabina Yasmin as party to the suit having been upheld by the High Court, there was no question of citing the same person as witness of the defendant at this stage. After the objection was filed by the plaintiff, the defendant filed a reply to the objection on 30.04.2013. It is necessary to mention here that neither in the application filed on 06.04.2013 nor in the reply dated 30.04.2013 did the defendant disclose the reason for omission of the name of Musstt. Sabina Yasmin mentioned in the list of witnesses submitted in appropriate time under Order 16, Rule 1 (1) of the Code of Civil Procedure. The learned Trial court after hearing the parties of this application passed impugned order on 04.05.2013 ordering for issuance of summons to Musstt. Sabina Yasmin, daughter of the plaintiff, to be examined as a witness of the defendant. It is this order which has been brought under challenge in the present application under Art. 227 of the Constitution.

(2.) I have heard Mr. M Biswas, learned counsel appearing for the petitioner and Mr. U Dutta, learned counsel appearing for the respondent.

(3.) Order 16, Rule 1 of the Code of Civil Procedure provides for furnishing list of witnesses and summonses to the witnesses. Clause (1) of the said Rule provides that on or before such date as the Court may appoint, and not later than fifteen days after the settlement of the issues, the parties are required to submit a list of witnesses to be proposed by them. Clause (3) of the said Rule is an exception which empowers this Court to issue summons to any other witnesses on the prayer of the parties whose names are not in the list of witnesses but the same can be done only for reasons to be recorded. Clause (3) of Order 16, Rule 1 shows that such satisfaction can be recorded by the learned Court only if the parties applying for such benefit 'shows sufficient cause for the omission to mention the name of such witness in the said list'. Clause (3) of Order 16, Rule 1 contemplates that once a witness is required to be examined in favour of a party and he/she is not there in the list of witnesses, the party is duty bound to disclose the reason for which name of the proposed witness did not find place in the list of witnesses submitted in appropriate time. Only when such reasons are disclosed, the Court shall consider the same and thereafter if the Court is satisfied as to sufficiency of the cause then the third stage of arriving at satisfaction would arise. Once the Court is satisfied with reasons for the omission to mention the name of the proposed witness in the list filed under clause (1) of the Rule, then the Court can issue summons to a person beyond the list as well otherwise not.