YAQOOB ALI Vs. FIRM HAJI TAJ KHANJI IBRAHIMJIUDAIPUR

JUDGEMENT

(1.) This is a joint reference made by a learned single Judge of this Court in the two revisions involving somewhat similar questions, as according to him there are conflicting decisions of the learned Judges of this Court relating to the provisions of Order XVI, Rule 1, C. P. C. as amended by the Civil Procedure Code (Amendment) Act (No. 104 of 1976) (for short 'the Amendment Act'), which came into force from Feb. 1, 1977.

(2.) We will notice the facts giving rise to S. B. Civil Revision No. 49 of 1979, Yaqoob Ali v. Firm Taj Khan Ibrahim. as S. B. Civil Revision No. 289 of 1979, Heeralal v. Pyarelal was disposed of by a Division Bench on January 8, 1982 on account of the concession made, it was not considered proper to decide it on merits. S. B. Civil Revision No. 48 of 1979.

(3.) The plaintiffs-non-petitioners filed a suit again the defendant-petitioner for specific performance of contract, damages etc. The suit was contested on various grounds by the defendant. Issues were framed on May 9, 1977. The plaintiffs led evidence, and closed it on July 11, 1978. Thereafter, the defendant tiled his list of witnesses including himself in rebuttal on July 17, 1978. An objection was raised by the plaintiffs that as list was tiled beyond fifteen days of July 22, 1977 when the issues were amended, the defendant could not be allowed to examine the witnesses whose names have been mentioned in the list because of the provisions of Order XVI, Rule 1, C.P. C. as amended by the amendment Act. The learned Additional Civil Judge, Udaipur by his order dated January 16, 1979, held that the list of witnesses tiled by the defendant was beyond time and, therefore, he was not entitled to examine the witnesses. A revision was filed under Section 115, C. P. C. by the defendant in this Court on February 13, 1979. When the revision came up for hearing before the learned Judge, two grounds were raised: (1) that the amended provisions of Order XVI, Rule 1, C. P. C. were not inconsistent with Order XVI, Rule 1, Civil P. C, as substituted by the Rajasthan High Court and, therefore, they do not stand repealed by the amendment Act; and (2) that in any case, a liberal view ought to have been taken by the learned Additional Civil Judge and the defendant should have been given permission to examine his witnesses. At the time of hearing, a preliminary objection was raised by the learned counsel for the non- petitioners that no revision lay against the impugned order because no ease of failure of justice or irreparable injury was made out in the case. Attention of the learned single Judge was invited to Ramchand v. Laxmikumar, AIR 1980 Raj 128 a decision of G.N. Lodha, J., wherein there was a reference of Narain Lal v. Someshwar Dayal, (Civil Revn. No. 62 of 1977 decided on Feb. 6, 1979 by M L. Joshi J.). The learned Judge has referred to the following extract appearing in Ramchand's case: "Mr. Jain, appearing for the respondent-plaintiff has drawn by attention to the judgment of Hon. Justice Joshi dated February 6, 1979 in Narain Lal v. Someshwar Dayal, (C. R. No. 62 of 1977 decided on 6-2-1979) (Raj), in the matter of revision application against refusal of the trial Court to examine witnesses who were present in the Court. In that case, this Court observed as under:--