NAROTAM SINGH Vs. ASHWANI KUMAR

JUDGEMENT

(1.) THE plaintiff, who is the petitioner, is aggrieved by the order of the learned trial Court according permission to the defendants to summon the Tehsildar in evidence. The petitioner has submitted that the name of the Tehsildar was never mentioned in the list of witnesses, but permission was granted without considering the principles of law applicable. Further grievance of the petitioner is that the orders were issued in a routine manner on an application moved by the defendants-respondents behind his back. The matter was adjourned on a number of occasions, but no evidence was examined on behalf of the defendants and by the impugned order passed on 28.3.2007 again permission has been accorded to examine the witness aforesaid.

(2.) I have heard learned counsel for the parties and have gone through the record.

(3.) TRUE that discretion has been given to the Court to examine a witness whose name has not been mentioned in the list of witnesses. But, this is not meant to ambush the opposite side, who must also have sufficient notice about the factum that a particular person would be examined as a witness and would be deposing on a particular issue. It is also true that Order 16 has been interpreted liberally by the Courts granting permission to litigants to contest their claim on merits and not to be enmeshed in procedural wrangles. But the conduct of the party must be bonafide and no one should be lethargic and a casual approach to the litigation should not be encouraged. The order of the learned Court shows that the defendant has stated that the other witnesses have "turned hostile as are helping the plaintiff, therefore, it is in the interest of justice that Sh.Hans Bhatia, Tehsildar is allowed to be examined". This is a rather strange request which has been made by the defendants. After all the witnesses who are sought to be examined by the defendants are not planted by the plaintiff. In any event, the application should not be allowed in a casual manner by the learned Court below. At-least an application calling upon the defendants to explain as to why the witness was being summoned should have been called for by the learned Court and disposed of in accordance with the well known principle regulating the exercise of discretion.