The provisions contemplated under Sub-rules (1), (2) and (3) of Order 16 Rule 1 of CPC are clear to the effect that the parties are to file the list of witnesses as provided under Sub-rule (1) and could seek presence of such witnesses on an application under Sub-rule (2). Sub-rule (3) further provides that a party would seek the assistance of the Court for the attendance of a witness though not already listed, on an application and the Court could exercise its discretion in ordering such an application. The other mode which is provided under Rule 1-A, after the amendment came into force from 1-2-1977 is that the party to the suit without applying for summons could bring any witness for giving evidence. These provisions, in my mind, do not leave any doubt to say that furnishing the list of witnesses to the Court by contesting parties is mandatory. Sub-rule (2) enables a party to seek permission of the Court for filing necessary application seeking the presence of the listed witness. Sub-rule (3) permits filing of application seeking attendance of unnamed witnesses but such application shall contain necessary reasons.
2. Respondent instituted a suit for injunction in O.S. No. 459 of 1987 in the Court of the Munsif Magistrate, Pakala, Chittoor District. Petitioners are the defendants in the said suit. The respondent being the plaintiff in the said suit filed an application under Order 16 Rule 2 (sic.1(2)) of CPC to summon the Advocate-Commissioner appointed in I.A.No. 495 of 1986 which was instituted by the respondents in O.S. No. 292 of 1986 on the file of the Munsif Magistrate, Piler. The respondent averred in the affidavit filed in support of the petition that in the earlier suit O.S. No. 292/86 in the Court of the Munsif Magistrate, Piler, an Advocate-Commissioner by name Sudhakar Reddy was appointed for noting down the physical features of the suit property and as such the respondent desired to examine the said Advocate-Commissioner to speak about the physical features of the suit property. The said I.A. No. 216/96 in O.S. No. 459 of 1987 which is filed under Order 16 Rule 2 of CPC was opposed by the petitioners herein. But, however, the lower Court allowed the said application, against which the present revision is filed.
3. It is contended by Sri F.S. Narayana, learned counsel for the petitioners that Sub-rule (1) of Order XVI Rule 1 of CPC contemplates that after settlement of issues by the Court, every con testing party shall furnish a list of witnesses to the Court who are likely to be examined on its behalf, within a reasonable time. Sub-rule (2) further provides for seeking attendance of any witness through filing necessary application. Sub-rule (3) provides that even if a person has not been named as a witness, a party could seek the presence of such person to be examined as a witness by filing necessary application and the Court on satisfying with the reasons, permit such party to seek the attendance of the witness. The amendment introduced to Order 16 of CPC with effect from 1-2-1977 further introduces the Rule 1-A to Order 16 of CPC which enables a party of the suit, without the assistance of the Court, may bring any witness to examine him or production of documents. Sri Narayana states, when there is a specific provision to obtain the presence of a witness whose name has not been furnished to the Court, under Rule 1-A of Order 16 of CPC, without the assistance of the Court, filing of petition under Sub-rule (2) of Rule 1 of Order 16 seeking to summon an unnamed witness is impermissible. When filing of such application is not permissible according to law, the lower Court ought to have rejected that application and stated that the impugned order is to be set aside on the ground that the lower Court has exercised the jurisdiction illegally.
4. In support of his contentions, Sri P.S. Narayana, counsel for the petitioners has relied on the following decisions reported in Mange Ram v. Brij Mohan, Rahima Bi v. Mohammad Khasim Saheb, 1986(1) ALT 195 and in Bennett Coleman & Co. Ltd. v. Janaki Ballav Patnaik, .
5. To meet these contentions, Sri E. Manohar, learned Senior Counsel appearing on behalf of Sri J.M. Naidu, counsel for the respondent-plaintiff, on the contrary, contended that the provisions contemplated under Order 16(1) of CPC have to be construed harmoniously inasmuch as the Court is competent to permit a party to seek the attendance of a witness on the Court being satisfied with the reasons explained. Learned Senior Counsel further stated that the interference of this Court Under Section 115 of CPC in an order passed by the lower Court exercising discretion is not permissible unless and until it is shown to the Court that the order passed by the lower Court if allowed to be sustained would occasion a failure of justice. Counsel stated that the lower Court, in all probability, felt that the request of the respondent-plaintiff is reasonable who has sought to examine the Advocate-Commissioner in support of her case and therefore, he justifies the order of the lower Court.
6. On the basis of these submissions, this Court is called upon to examine whether the imugned order, in the circumstances, warrants interference from this Court?
7. The provisions contemplated under Sub-rules (1), (2) and (3) of Order 16 Rule 1 of CPC are clear to the effect that the parties are to file the list of witnesses as provided under Sub-rule (1) and could seek presence of such witnesses on an application under Sub-rule (2). Sub-rule (3) further provides that a party would seek the assistance of the Court for the attendance of a witness though not already listed, on an application and the Court could exercise its discretion in ordering such an application. The other mode which is provided under Rule 1-A, after the amendment came into force from 1-2-1977 is that the party to the suit without applying for summons could bring any witness for giving evidence. These provisions, in my mind, do not leave any doubt to say that furnishing the list of witnesses to the Court by contesting parties is mandatory. Sub-rule (2) enables a party to seek permission of the Court for filing necessary application seeking the presence of the listed witness. Sub-rule (3) permits filing of application seeking attendance of unnamed witnesses but such application shall contain necessary reasons.
8. In this case, the attendance of Sri Sudhakar Reddy, Advocate-Commissioner who is not a listed witness, is sought by the respondent herein. Earlier, the respondent had instituted a suit in O.S.No. 292 of 1986 on the file of the Munsif Magistrate, Filer for injunction. Along with the suit, an application in I.A. No. 494 of 1986 was also filed for appointment of an Advocate-Commissioner for noting down the physical features of the suit schedule property, pursuant to which, said Sudhakar Reddy was appointed as Advocate-Commissioner. He seems to have submitted his report. But, however, the lower Court returned the plaint, on the question of territorial jurisdiction, for presenting in an appropriate Court. As against the order of rejection, the respondent seems to have carried the matter by way of Civil Miscellaneous Appeal before the appellate Court which is stated to have dismissed the said CMA, which fact has not been disputed by the respondent-plaintiff herein. Probably, the dismissal of the Civil Miscellaneous Appeal filed by the respondent prompted her to institute a fresh suit in O.S. No. 459 of 1987 in the Court of Munsif Magistrate at Pakala, Chittoor District, in the year 1987.
9. The affidavit filed in support of the petition which is filed under Order 16 Sub-rule 2 of Rule 1 fails to disclose satisfactory reasons, so also in the order of the lower Court, no reasons have been recorded. In my considered view, the provisions contemplated under Sub-rule (2) of Rule 1 of Order 16 are intended only for obtaining summons for ensuring the attendance of a person whose name has been furnished in the list of witnesses by the parties after settlement of issues as provided under Sub-rule (1)of Rule 1 of Order 16 CPC. Admittedly, said Sudhakar Reddy, Advocate-Commissioner is not a listed witness on behalf of the respondent. Therefore, in my considered view, filing of the application under Sub-rule (2) of Rule 1 of Order 16 seeking to summon the attendance of said Sudhakar Reddy is not permissible and the lower Court ought to have rejected the application on that ground alone'.
10. The submission of Sri E. Manohar, learned senior counsel representing Sri J.M. Naidu, appearing on behalf of the respondent is that interference of this Court Under Section 115 of CPC is permissible only if in the opinion of this Court, the impugned order is allowed to be sustained, it would occasion a failure of justice. I do not think that this submission could be accepted. The respondent herself has not given sufficient reasons seeking the presence of said Sudhakar Reddy who was appointed as Advocate-Commissioner in O.S. No. 292 of 1986 on the file of the Munsif Magistrate, Piler. The lower Court also has not given any cogent reasons while allowing the application except observing as under:
"In the interest of parties, the petition is allowed."
This cryptic view of the lower Court, while allowing the application filed under the provision i.e., Sub-rule (2) of Rule 1 of Order 16of CPC which is intended not for the said purpose, cannot be said to be a proper order. On the contrary, I am inclined to hold that the order of the lower Court is an act of illegal exercise of jurisdiction and it is liable to be set aside. Accordingly, I do so.
11. Consequently, this Civil Revision Petition is allowed. No costs.
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Andhra High Court
M. Munaswami Naidu And Anr. vs Smt. K. Nagamani on 26 August, 1996
Equivalent citations: 1996 (3) ALT 1049
1. Order made in I.A.No. 216 of 1996 in O.S. No. 459 of 1987 on 28-6-1996 by the Munsif Magistrate, kala, Chittoor District is the subject matter of challenge in this revision.2. Respondent instituted a suit for injunction in O.S. No. 459 of 1987 in the Court of the Munsif Magistrate, Pakala, Chittoor District. Petitioners are the defendants in the said suit. The respondent being the plaintiff in the said suit filed an application under Order 16 Rule 2 (sic.1(2)) of CPC to summon the Advocate-Commissioner appointed in I.A.No. 495 of 1986 which was instituted by the respondents in O.S. No. 292 of 1986 on the file of the Munsif Magistrate, Piler. The respondent averred in the affidavit filed in support of the petition that in the earlier suit O.S. No. 292/86 in the Court of the Munsif Magistrate, Piler, an Advocate-Commissioner by name Sudhakar Reddy was appointed for noting down the physical features of the suit property and as such the respondent desired to examine the said Advocate-Commissioner to speak about the physical features of the suit property. The said I.A. No. 216/96 in O.S. No. 459 of 1987 which is filed under Order 16 Rule 2 of CPC was opposed by the petitioners herein. But, however, the lower Court allowed the said application, against which the present revision is filed.
3. It is contended by Sri F.S. Narayana, learned counsel for the petitioners that Sub-rule (1) of Order XVI Rule 1 of CPC contemplates that after settlement of issues by the Court, every con testing party shall furnish a list of witnesses to the Court who are likely to be examined on its behalf, within a reasonable time. Sub-rule (2) further provides for seeking attendance of any witness through filing necessary application. Sub-rule (3) provides that even if a person has not been named as a witness, a party could seek the presence of such person to be examined as a witness by filing necessary application and the Court on satisfying with the reasons, permit such party to seek the attendance of the witness. The amendment introduced to Order 16 of CPC with effect from 1-2-1977 further introduces the Rule 1-A to Order 16 of CPC which enables a party of the suit, without the assistance of the Court, may bring any witness to examine him or production of documents. Sri Narayana states, when there is a specific provision to obtain the presence of a witness whose name has not been furnished to the Court, under Rule 1-A of Order 16 of CPC, without the assistance of the Court, filing of petition under Sub-rule (2) of Rule 1 of Order 16 seeking to summon an unnamed witness is impermissible. When filing of such application is not permissible according to law, the lower Court ought to have rejected that application and stated that the impugned order is to be set aside on the ground that the lower Court has exercised the jurisdiction illegally.
4. In support of his contentions, Sri P.S. Narayana, counsel for the petitioners has relied on the following decisions reported in Mange Ram v. Brij Mohan, Rahima Bi v. Mohammad Khasim Saheb, 1986(1) ALT 195 and in Bennett Coleman & Co. Ltd. v. Janaki Ballav Patnaik, .
5. To meet these contentions, Sri E. Manohar, learned Senior Counsel appearing on behalf of Sri J.M. Naidu, counsel for the respondent-plaintiff, on the contrary, contended that the provisions contemplated under Order 16(1) of CPC have to be construed harmoniously inasmuch as the Court is competent to permit a party to seek the attendance of a witness on the Court being satisfied with the reasons explained. Learned Senior Counsel further stated that the interference of this Court Under Section 115 of CPC in an order passed by the lower Court exercising discretion is not permissible unless and until it is shown to the Court that the order passed by the lower Court if allowed to be sustained would occasion a failure of justice. Counsel stated that the lower Court, in all probability, felt that the request of the respondent-plaintiff is reasonable who has sought to examine the Advocate-Commissioner in support of her case and therefore, he justifies the order of the lower Court.
6. On the basis of these submissions, this Court is called upon to examine whether the imugned order, in the circumstances, warrants interference from this Court?
7. The provisions contemplated under Sub-rules (1), (2) and (3) of Order 16 Rule 1 of CPC are clear to the effect that the parties are to file the list of witnesses as provided under Sub-rule (1) and could seek presence of such witnesses on an application under Sub-rule (2). Sub-rule (3) further provides that a party would seek the assistance of the Court for the attendance of a witness though not already listed, on an application and the Court could exercise its discretion in ordering such an application. The other mode which is provided under Rule 1-A, after the amendment came into force from 1-2-1977 is that the party to the suit without applying for summons could bring any witness for giving evidence. These provisions, in my mind, do not leave any doubt to say that furnishing the list of witnesses to the Court by contesting parties is mandatory. Sub-rule (2) enables a party to seek permission of the Court for filing necessary application seeking the presence of the listed witness. Sub-rule (3) permits filing of application seeking attendance of unnamed witnesses but such application shall contain necessary reasons.
8. In this case, the attendance of Sri Sudhakar Reddy, Advocate-Commissioner who is not a listed witness, is sought by the respondent herein. Earlier, the respondent had instituted a suit in O.S.No. 292 of 1986 on the file of the Munsif Magistrate, Filer for injunction. Along with the suit, an application in I.A. No. 494 of 1986 was also filed for appointment of an Advocate-Commissioner for noting down the physical features of the suit schedule property, pursuant to which, said Sudhakar Reddy was appointed as Advocate-Commissioner. He seems to have submitted his report. But, however, the lower Court returned the plaint, on the question of territorial jurisdiction, for presenting in an appropriate Court. As against the order of rejection, the respondent seems to have carried the matter by way of Civil Miscellaneous Appeal before the appellate Court which is stated to have dismissed the said CMA, which fact has not been disputed by the respondent-plaintiff herein. Probably, the dismissal of the Civil Miscellaneous Appeal filed by the respondent prompted her to institute a fresh suit in O.S. No. 459 of 1987 in the Court of Munsif Magistrate at Pakala, Chittoor District, in the year 1987.
9. The affidavit filed in support of the petition which is filed under Order 16 Sub-rule 2 of Rule 1 fails to disclose satisfactory reasons, so also in the order of the lower Court, no reasons have been recorded. In my considered view, the provisions contemplated under Sub-rule (2) of Rule 1 of Order 16 are intended only for obtaining summons for ensuring the attendance of a person whose name has been furnished in the list of witnesses by the parties after settlement of issues as provided under Sub-rule (1)of Rule 1 of Order 16 CPC. Admittedly, said Sudhakar Reddy, Advocate-Commissioner is not a listed witness on behalf of the respondent. Therefore, in my considered view, filing of the application under Sub-rule (2) of Rule 1 of Order 16 seeking to summon the attendance of said Sudhakar Reddy is not permissible and the lower Court ought to have rejected the application on that ground alone'.
10. The submission of Sri E. Manohar, learned senior counsel representing Sri J.M. Naidu, appearing on behalf of the respondent is that interference of this Court Under Section 115 of CPC is permissible only if in the opinion of this Court, the impugned order is allowed to be sustained, it would occasion a failure of justice. I do not think that this submission could be accepted. The respondent herself has not given sufficient reasons seeking the presence of said Sudhakar Reddy who was appointed as Advocate-Commissioner in O.S. No. 292 of 1986 on the file of the Munsif Magistrate, Piler. The lower Court also has not given any cogent reasons while allowing the application except observing as under:
"In the interest of parties, the petition is allowed."
This cryptic view of the lower Court, while allowing the application filed under the provision i.e., Sub-rule (2) of Rule 1 of Order 16of CPC which is intended not for the said purpose, cannot be said to be a proper order. On the contrary, I am inclined to hold that the order of the lower Court is an act of illegal exercise of jurisdiction and it is liable to be set aside. Accordingly, I do so.
11. Consequently, this Civil Revision Petition is allowed. No costs.
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