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PETITIONER: LALITHA J. RAI

       Vs.

RESPONDENT: AITHAPPA RAI

DATE OF JUDGMENT27/04/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1995 AIR 1984            1995 SCC  (4) 244  1995 SCALE  (3)698

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      The appellant  plaintiff laid  the suit for declaration of title and for possession of the plaint schedule property. On August  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 international. 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 explanation  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.      Order 16  Rules 1  and 1(A) adumberate that the witness at the trial court are 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 1(A) to see that the undue delay should not be caused in 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

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documents and  they are  required to  obtain summons to such witnesses for  their  attendance  in  the  court.  On  their failure to do the same, Rule 1(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 obtain the summonses through court for attendance of witnesses they are at  liberty to  have the  witnesses brought  without the assistance of the Court.      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 plaintiff. 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 plaintiff.  No costs.