Judgment:
ORDER
S.K. Dubey, J.
1. The petitioner/tenant, who is a defendant in a suit instituted on 4-9-1984 by the respondent No. 1/landlord in the Court of Third Civil Judge, Class II, Sheopurkalan, after the close of the evidence of the plaintiff on 8-5-1992, applied on 13-5-1992 under Order 16, Rule 1, Civil Procedure Code, for issue of summonses to the two witnesses out of three for their examination. That application on opposition of the plaintiff was dismissed by the trial Court holding that the list of witnesses was not filed within 15 days after the date on which the issues were settled as required under Order 16, Rule 1. The petitioner aggrieved of the order, preferred a revision which was also dismissed; hence the petitioner has approached this Court under Article 227 of the Constitution of India for quashing of the two orders and for a direction to the trial Court to issue summonses to the two witnesses for their attendance in Court.
2. Shri R. D. Jain, learned counsel for petitioner, contended that the plaintiff himself did not file the list of witnesses within 15 days after the settlement of issues, but filed the list on 14-2-1991 and made a prayer for issue of summonses, though the issues were settled on 31-10-1986. The trial Court allowed the said prayer. The plaintiff sought adjournments for completing his evidence. The petitioner/defendant never indulged in delaying tactics; therefore, the trial Court ought not to have taken a hyper-technical view, as the prime duty of a Court of law is to administer justice and the inaction of the petitioner in not filing the list of witnesses, in the circumstances of the case, should not defeat the cause of justice. The two witnesses sought to be examined by petitioner, are material witnesses, one of whom is the brother and tenant of the plaintiff, and the other is also a tenant; by their examination the petitioner wants to establish that the plaintiff has no bona fide requirement, as the plaintiff has entered into a compromise with the aforesaid witnesses and allowed them to continue as tenants. In any case, the trial Court should have allowed the application in the interest of justice under Order 16, Rule 1(3), Civil Procedure Code. Reliance was placed on a short noted Single Bench decision of this Court in case of Ajendra Kumar v. Laxminarayan, 1989 (II) MPWN 125.
3. On the other hand, Shri S. S. Bansal, learned counsel for the respondent/plaintiff placing reliance on a decision of the Supreme Court in case of Mange Ram v. Brij Mohan, AIR 1983 SC 925, contended that as ruled by the Supreme Court and is evident from the language of Order 16. Rule 1, that where the party wants the assistance of the Court to procure presence of a witness on being summoned through the Court, it is obligatory on the party to file the list with the gist of evidence of the witness in the Court as directed by Sub-rule (1) of Rule 1 and make an application as provided by Sub-rule (2) of Rule 1. That having not been done, there was no option to the Court but to reject the prayer. Learned counsel also submitted that the petitioner, if so advised, may produce the said witnesses and examine them. For that the respondent/plaintiff will have no objection.
4. On reading of Order 16, Rule 1, Civil Procedure Code, it is clear that in a suit, after the issues are settled, a party is bound to present in Court a list of witnesses whom he proposes to call either to give evidence or to produce documents, and obtain summonses to such persons for their attendance in Court. Such list must be filed on or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled. Under Sub-rule (2) of Rule 1 of Order 16 a party desirous of obtaining any summons for the attendance of any person, has to file an application in Court stating therein the purpose for which the witness is proposed to be summoned. Sub-rule (3) of Rule 1 confers a discretion on the Court to permit a party to summon through Court or otherwise any witness other than those whose names appear in the list submitted under Sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. Rule 1A of Order 16 enables a party to bring any witness to give evidence or to produce documents but this enabling provision is subject to the provision contained in Sub-rule (3) of Rule 1 of Order 16.
5. The Supreme Court while considering the two provisions of Rules 1 and 1 A, contained in Order 16, has held in para 10 thus :
'There is no inner contradiction between Sub-rule (1) of Rule 1 and Rule 1A of Order XVI. Sub-rule (3) of Rule 1 of Order XVI confers a wider jurisdiction on the Court to cater to a situation where the party has failed to name the witness in the list and yet the party is unable to produce him or her on his own under Rule 1A and in such a situation the party of necessity has to seek the assistance of the Court under Sub-rule (3) to procure the presence of the witness and the Court may if it is satisfied that the party has sufficient cause for the omission to mention the name of such witness in the list filed under Sub-rule (1) of Rule 1, the Court may still extend its assistance for procuring the presence of such a witness by issuing a summons through the Court or otherwise which ordinarily the Court would not extend for procuring the attendance of a witness whose name is not shown in the list. Therefore, Sub-rule (3) of Rule 1 and Rule 1A operate in two different areas and cater to two different situations.'
6. As the two provisions have been enacted for two different situations arising in a case and for want of assigning the purpose for which the witnesses are proposed to be summoned, in our opinion, the application (Annexure P/l), moved under Order 16, Rule 1 (which does not make a prayer under Order 16, Rule 1(3), Civil Procedure Code), was rightly rejected by the trial Court.
7. Next, it was contended by Shri Jain that if the rigid view taken by the trial Court is allowed to stand, it may result in failure of justice causing irreparable injury to the petitioner, particularly when petitioner cannot be blamed for indulging in delaying tactics, and the respondent/plaintiff was allowed to summon the witnesses in spite of his omission to take action in time, as required under Order 16, Rule 1. Therefore, the petitioner has been given an unequal treatment, which the law does not permit, as a just legal system is constitutionally ordained and it is the bounden duty of the judicial officer to abide by the constitutional mandate as enshrined under Articles 14 and 39A of the Constitution of India, and for that reliance was placed on a Single Bench decision of this Court in Brijendra Singh v. State of M.P., 1986 MPLJ 595 = 1986 (II) MPWN 111.
8. In our opinion, in the circumstances of the case, it would be appropriate for the petitioner to file a fresh application before the trial Court under Sub-rules (2) and (3) of Rule 1 of Order 16, Civil Procedure Code, stating therein the purpose for which the witnesses are proposed to be summoned and the sufficient cause for not doing so at the appropriate stage. If that prayer is made, the trial Court after hearing parties shall consider and dispose of the same in accordance with law.
9. With these observations, the petition is disposed of. No order as to costs.