LALITHA J. RAJ versus AITHAPPA RAJ

Leave granted.

p. 862, margin C

The appellant plaintiff laid the suit for declaration of title and for possession of the plaint schedule property. On Augnst 3, 1993 the appellant filed an application enclosing the list of witnesses to issue summons to them for adduction of evidences to prove her case. In the affidavit filed by the husband, who is the general power of attorney holder, it was stated that he was under bonafide mistaken impression that the list of witnesses was already filed, but he noticed that mistake when he was getting ready, in consultation with the counsel, to adduce evidence at the trial. It was, therefore, stated that the failure to file the list of witnesses was not intentional. Accordingly, he sought permission of the court to file the list of witnesses. The trial court in its order dated September 6 ,1993 dismissed the application holding that there is no proper ~xplanation for the delay in filing the list of witnesses. On revision, the High Court of Karnataka declined to interfere with the order. Thus, this appeal by special leave.

p. 862, margin C

Order 16 Rules 1 and l(A) adumbrate that the witne.s at the trial court arc to be produced for examination by the parties by their filing the list, and omission thereon prohibits them to avail the assistance of the court to secure their attendance to give evidence or to produce documents on their behalf. It is true that the legislature amended Order 16 Rule 1 and added rule l(A) to see that the undue delay should not be caused iu the trial of the suit by filing list of witnesses or the documents at belated stage. Thereby, it envisages that on or before the date fixed by the court for settlement of issues and not later than 15 days after the date on which issues were settled, the parties are to file the list of such witnesses whom they propose to call either to give evidence or to produce documents and they are required to obtaiu summous to such witnesses for their attendance in the court. On their failure to do the same, Rule {l)A says that they may without assistance of the court bring witnesses to give evidence or to produce documents. In other words, if they fail to obtaiu the summonses through court for attendance of witnesses they are at liberty to have the witnesses brought without the assistance of the Court.

pp. 862–863, margin F

It would, thus, be seen that the legislature did not put a total prohibition on the party to produce the witnesses or the production of the documents for proof of the respective case. Nonetheless, when they seek the assistance of the Court, they are enjoined to give reasons as to why they have not filed the application within the time prescribed under Rule 1 of Order 16. It is seen that in the application it was stated by the husband of the appellant that they were under the bonafide impression that they have already filed the list of the witnesses alongwith the documents and that the mistake of non-filing the list was discovered when they were getting ready for the trial. It is not in dispute that the trial is yet to begin. In these circumstances, we think that the trial court committed illegality in refusing to receive the list for summoning the witnesses for adduction of evidence by the plaiutiff. The 'appeal is accordingly allowed. The orders of the trial Court and the High Court are set aside. The list already furnished is a valid list. The trial court is directed to summon the witnesses for examination on behalf of the plaiutiff. No costs. G.N . Appeal allowed

p. 863, margin B