DALCHAND Vs. RAMAKANT

JUDGEMENT

(1.) THIS revision raises an interesting question as to the interpretation of O. 16 R. 1, Civil Procedure Code, as amended by the Rajasthan High Court.

(2.) THE revision came up for hearing on 10th February, 1971. THE learned counsel for the parties pointed out that a number of revisions against orders passed by subordinate courts on varying interpretations of O. 16 R. 1 C. P. C. have been pending in this Court and that the subordinate courts have passed contradictory orders almost in similar circumstances and suggested that the hearing of the revision may be adjourned and all advocates interested in assisting the Court for the proper interpretation of O. 16 r. 1 C. P. C. should be given an opportunity to do so. THE case was, therefore, adjourned for hearing today, and a number of similar revisions were also listed for hearing.

(3.) SUB rule (1) gives a discretion to the courts to fix the periods during which the parties should file their lists subject to the maximum of 30 days. Fixation of such periods by the courts will depend upon the nature of the pleadings, the nature of the issues and the peculiar situations of the parties and the courts cannot but have ample discretion in this behalf. The courts having discretion in the matter of fixing the periods, they must have the discretion to subsequently vary or amend the periods, subject of course to the maximum of 30 days. It follows that the initial fixation of a date by the courts, if it is within the limit of 30 days, cannot be irrevocable and the courts cannot but have discretion to change the dates on good cause being shown. It roust further follow that the dates can be changed prospectively. The only part of the rule which can be considered mandatory is that the courts cannot fix a date beyond 30 days. The sub-rule (1), however, does not itself provide for any penal consequences ensuing from non-filing of the list. The only penal consequences which can be impliedly inferred from the rule is that a list cannot be filed after the expiry of 30 days and parties cannot claim absolute rights to produce and get summoned witnesses. It must be pointed out at this stage that in the trial of a suit there are bound to arise various contingencies : pleadings may be amended involving addition and subtraction of issues; even without amendment, there may be addition and deletion of issues, the subsequent events might bring in additional controversies. It must also be added that ordinarily it may not be possible for the party leading evidence in rebuttal to have an idea of the nature of the evidence to be produced in rebuttal. That will depend upon the nature of the evidence led by the party beginning the evidence. In these circumstances, an comission on the part of the party leading evidence in rebuttal does not deserve to be given much emphasis A complete deprivation of the discretion of the courts in the matter of leading evidence in consequence of omission to file list could not have been intended by the court. It is true, as pointed out by the Divsion Bench, that the court should give due weight to the need of securing speedy and pure justice but there is still greater imperative need of doing substantial justice to the parties by enabling them to obtain decision on merits, and the Courts must have discreation so that they may strike a proper balance between the needs of prompt and expeditious disposal and the needs of determination of controversy on merits. While courts are certainly expected to disapprove, discourage and zealously prevent deliberate attempts at unnecessary prolongation of the cases as also carelessness or indifference to the diligent prosecution of cases, they must do so within reasonable and permissible limits: they should not avoid trials on merits in a light hearted manner by adopting rigorous and unduly strict tests of expecting unusual and exemplary behaviour of ideally careful litigants; the test to be adopted should be one of reasonable expectation by a reasonably diligent litigant- It is evident that such considerations led to the promulgation of sub rule (ii) vesting discretion in the courts to allow parties to produce witnesses or to get them summoned even though their names could not be given in the initial lists. The sub-rule (ii) as initially framed contained the words "after showing good cause for the omission of the said witnesses from the list". The rule also did not make adequate provision in connection with evidence to be led in rebuttal. The Court, however, noticed the omissions and realised the possibilities of unduly strict interpretations and therefore, made necessary amendments in the year 1661. A proviso to sub-rule (1) was added to allow a party leading evidence in rebuttal to file a supplementary list with the permission of the court. SUB-rule (ii) was also amended with changes already indicated. The two learned Judges sitting singly, interpreted sub-rule (ii) liberally and did not find any limitations in the rule. The Bench, however, in Mst. Tulsi Bai's case (1) imported some limitations in the rule and interpreted sub rule (ii) to lay a mandate that the discretion can be exercised only in the manner indicated in the rule. The Bench specifically held that the courts can have discretion to examine witnesses only when initial lists had been filed and when the parties are in a position to satisfy the courts for the non-inclusion of the names in the lists.