BHANWAR SINGH Vs. GIR RAJ PRASAD

JUDGEMENT

(1.) THIS revision petition under Section 115, C. P. C. is directed against the order dated 30th April, 1977, of the learned Additional Munsiff-cum-Judicial magistrate No. 2, Bharatpur, whereby the defendant's application dated 20th january, 1977 under Order 16, Rule 1, C. P. C. read with Section 5 of the limitation Act was dismissed. The brief feels which are relevant for the disposal of this revision application are that Gir Raj Praead, plaintiff, filed a suit against Gulab Singh and Bhanwar singh defendants for a permanent injunction restraining the defendants from in any way interfering with the possession of the plaintiff over the suit land. The suit was presented before the trial Court on 17th July, 1972. On 14th October, 1974, issues were framed. The plaintiff filed a list of witnesses on 19th november, 1974. Defendant No. 1 Gulab Singh died on 24th February, 1976. An application for bringing his legal representatives on record was filed on 6th May, 1975 praying that Bhanwar Singh who was already arrayed as defendant no. 2 in the suit along with Smt. Happi widow of the deceased Gulab Singh be brought on record. This application was allowed on 13th December, 1975. Amended plaint was filed on 2nd January, 1976, and the list of witnesses of 19th November, 1974 was allowed on 12th March, 1976. Plaintiff's evidence commenced from 15th July, 1976, and was closed on 26th November, 1976. The case was listed on 15th January, 1977 for the evidence of the defendants. On 20th January, 1977, a list of witnesses was filed on behalf of the defendants. This list was accompanied by an application under Order 16, Rule 1, C. P. C. read with Section 5 of the Limitation Act duly supported by an affidavit of Bhanwar Singh defendant. The learned trial Court dismissed the application on 30th 'april, 1977 holding that the defendants ought to have submitted the list of witnesses within one month from the date of framing of the issues, and even in the evidence in rebuttal the list could have been filed within 15 days of the closing of the evidence of the plaintiff on issues Nos. 1 and 2. According to the learned trial Court the list of witnesses filed by the defendants was barred by 31 days. The list was accordingly rejected. Feeling aggrieved against this order of the learned trial Court the defendant-petitioners have filed the present revision petition.

(2.) ON behalf of the defendant-petitioners, it was contended that the learned trial Court allowed the plaintiff's list which was also presented late on payment of Rs. 10 as costs on 12th March, 1976. It was further contended that Gulab singh died on 24th February, 1975, and as he was looking after the conduct of the case, the list has been filed late, when defendant Bhanwar Singh came to know that the list had not already been filed. It was further contended that the plaintiff has neither cared to file any reply to the application dated 20th january, 1977, nor any counter-affidavit has been filed. It was further contended that the provisions of Order 16, Rule 1, C. P. C. are not meant for curbing the rights of the parties, but they are intended to ensure speedy disposal and to ensure that a litigation is not prolonged unduly. Reliance was placed on Baxiram v. Ashwani Kumar, 1965 Raj LW 111, Sangrarn Singh v. Election Tribunal, Kotah, AIR 1955 SC 425 and Balwant Singh v. Firm Raj singh, AIR 1969 Punj 197.

(3.) ON behalf of the plaintiff-respondent it was contended that Bhanwar Singh was already a party to these proceedings from the very commencement of the suit. It was further contended that Bhanwar Singh has been extremely negligent in not filing the list of witnesses within 30 days of the framing of the issues or within 15 days of the closing of the plaintiff's evidence. It was also contended that each day's delay has to be explained if the powers under section 5 of the Limitation Act are invoked for condoning the delay, and in the instant case, the defendants have not explained each day's delay. It was also contended that the suit was filed on 17th July, 1972, and if the defendants are still permitted to lead evidence it would mean unnecessary prolongation and protraction of the litigation. It was, therefore, contended that there is no force in this revision petition which should be dismissed with costs.