PT BHONREYLAL Vs. PT KUNJ BEHARI LAL

JUDGEMENT

(1.) THE point for determination in this revision application by the defendants is whether the period of thirty days prescribed for presenting a list of witnesses under Older 16, R. 1 as amended by the Rajasthan High Court can be extended by virtue of sec. 5 of the Indian Limitation Act, Act XXXVI of 1963.

(2.) THE point is of some importance because the sub-ordinate courts generally are taking the view that they have no jurisdiction to extend the period prescribed by Rule 1 of Order 16 which requires the parties to present in court a list of with-nesses whom it proposes to produce on such date as the court may appoint and not later than 30 days after the settlement of issues. Sub-rule (ii) says that : "no party shall produce or obtain process to enforce the attendance of witnesses other than those contained in the list referred to in sub rule (1), except with the permission of the Court and after showing good cause for the delay and the Court granting of refusing such permission shall record reasons for so doing. " After the interpretation of the above rule by this Court in Mst. Tulsi Bai vs. Chuni-lal, (l) the subordinate courts do not permit the parties to summon witnesses if list of witnesses has not been submitted on their behalf within the prescribed period and such orders are being challenged in a good number of revision applications pending in this Court. In the present case also the defendants were ordered by the court to submit a list of their witnesses within 30 days from 14-9-1967 the date on which the issues were framed as the burden of proof of these issues lay on the defendants. Evidence was to be recorded on 30th November, 1967. THE defendants did not comply with the order of the court and submitted an application along with an affidavit on 16th October, 1967 for extending the period of limitation for submitting the list for the reasons mentioned therein. List of the witnesses and process fee was also filed on the same date. On 24th October, 1967, the learned Civil Judge directed the application to be put up on the date of hearing in the presence of the opposite party and in the meanwhile also directed six witnesses to be summoned. On the date of hearing objection was raised on behalf of the plaintiff that the list of witnesses had not been filed within the time allowed by the court or at any rate within 30 days from the date of settlement of issues and as such the defendants had no right to examine any witness. THE learned Civil Judge in view of the aforesaid judgment of this Court held that "the provisions relating to the filing of the list of witnesses, are express, explicit and mandatory in command and admit of no exception". It was urged on behalf of the defendants that there was only one day's delay in submitting the list, but the court said that "if the delay of one day can he condoned, it can be condoned for any period and the very purpose of Order 16 R. 1 C. P. C. will stand defeated. " It may be mentioned that in their application the defendants had stated that the list of witnesses could not be submitted within 30 days from 14th September, 1967 because the defendants were misled by the fact that the Rajasthan Government had declared holidays from 11th October, 1967 to 14th October, 1967 and 15th October, 1967 was Sunday and they had thought that 14th October, 1967 would also be observed as a holiday by the civil courts. THErefore, the list was filed on Monday the 16th October, 1967 instead of 14th October, 1967. THE learned Civil Judge, as already stated, rejected the application without giving thought to the question whether time for submitting the list could be extended by virtue of sec. 5 of the Indian Limitation Act. Sec. 5 of the Limitation Act of 1963 is as follows : - "an appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period, Explanation - THE fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient within the meaning of this section. " It will be seen that the present section applies to all applications other than those arising under Order 21 of the Civil Procedure Code, 1908 relating to the execution of decrees, whereas under the old Act of 1908 sec. 5 was applicable to applications to which it was made applicable by or under any enactment in force. THE new section has brought above two important changes : 1. that it applies to all applications except under Order 21 C. P. C. 2. that it also applies to all special or local enactments unless specifically excluded by any of them, because under sec. 29 (2) it is provided : "where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of sec. 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any special or local law, the provisions contained in secs. 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. " THE law under the Act of 1908 was different because under sec. 29 (2) of that Act sec. 5 was not applicable where the period of limitation prescribed by special or local law for the appeal or application was different from that prescribed by the Limitation Act. But the present Act makes sec. 4 to 24 applicable to appeals and under special or local laws also unless they are expressly excluded by the special or local law. THE question, therefore, arises whether Order 16 R. 1 as amended by the Rajasthan High Court which prescribes 30 days period for submitting the list of witnesses is a special law within the meaning of sec. 29 (2) of the Limitation Act and whether the period prescribed is different from the period prescribed by the schedule under the Limitation Act so as to attract the application of sec. 29 (2) of the Limitation Act.