Order 16, Rule 1 does not lay-out the number of witnesses that a party in a suit can produce. That makes it clear that the legislature left this field to the courts of law who are seized of the matter in which witnesses :are proposed to be examined. A question arises as to whether the legislature can mean, and the courts can allow as many witnesses to be called by the court as a litigant chooses to. In my opinion if the answer is yes then courts will be put at the mercy of litigants and the chain of litigation will never end. If the answer is yes, then in a case like this, even if the defendant-respondent would like to summon numberless witnesses, no body can stop him. That means a civil suit cannot normally be decided during the lifetime of the suiter; That never can be the policy of laws. The first duty cast upon the courts is to control the proceedings. We with the advancement of our country and the growing complexities in our socio-economic pattern, have to address ourselves to the requirement of the time. Our law has to be real and meaningful. Courts have not only to dispense justice but do the same in a substantial manner. The growing concept of substantial justice is a laudable feature of our judicial system. If that be so then in every case when an application is made in terms of Order 16, Rule 1, C.P.C. court has to apply its mind and restrict the number of witnesses to an extent which should cater to the requirement of the case. The approach of the court should neither defeat the ends of justice nor cause undue delay in litigation. The court should not leave the number to the whims and fancies of the party producing the witnesses. Because a party interested in causing delay in a suit shall in that case be granted a premium for misusing the law of procedure. In determining number of witnesses a court should in my opinion, take into account the following guidelines :--
(a) Nature of the litigation;
(b) Number of issues required to be proved;
(c) Nature of the issues.
(d) The fact as to on whom has the onus been laid.
(e) The specific purpose for which a particular witness is required to be produced.
(A) In order to control the proceedings the court, in the first instance, has to take into account the nature of the proceedings. In a matrimonial case or in a suit for eviction or any other like matter, if, as already observed, the choice of number of witnesses is left to a litigant then the court will be abdicating its legitimate obligations. In a case like the one in hand it will always be the endeavour of the defendant to protract litigation. He should not be allowed to do so by aimlessly furnishing an unending list of witnesses who belong to far-flung areas.
If that is done then these witnesses under the prevailing circumstances cannot be served for years together. Their examination by the court will be impossible for years to come. In that way the basis of the suit shall be knocked out.
(B) The second consideration will be as to how many issues are required to be proved. This may distinctify one matter from the other. In a case where parties are at variance on a number of issues, probably number of witnesses to be examined may be larger than in a case where number of issues is limited.
(C) Third consideration is as to what is the nature of the issues. In some cases the issues may be complicated. There the number of witnesses shall invariably be larger than in a case where the issues are simple.
(D) The fourth consideration is as to upon whom is the onus placed by the court. The number of witnesses to be produced by a party, upon whom burden of proof has been placed may be larger than the party who has only to lead evidence in rebuttal. The last but not the least of the considerations is that a party making an application under Order 16, Rule 1 and desirous of obtaining summons for a person shall, in his application, state the purpose for which the witness is proposed to be summoned. Taking a clue from the words used in Order 16, Rule 1(2), C.P.C. it will be pertinent to observe that the same relate to singularity of the noun 'witness' or 'person'. The words used are 'for the attendance of any person'. The grammer of the sub-rule suggests that against every person supposed to be called as a witness the purpose of his production should be shown. Not that a long list of witness will be detailed out after stating that some questions are to be proved. Sub-rule (2) has to be read with sub-rule (1) in a conjective manner, where two purposes of calling witnesses are contemplated. These purposes are giving evidence or producing documents. Reading Sub-rules (1) and (2) together it will be safe to hold that against every witness, the party proposing to call that witness has to indicate as to for what purpose is he proposed to be called. This provision of law makes room for a prior information of the witness to come prepared for making deposition in the court or producing documents.
Citation;AIR1995J&K32
IN THE HIGH COURT OF JAMMU AND KASHMIR
Decided On: 09.09.1994
Appellants: Yashpal Sawhney
Vs.
Respondent: Gandotra Traders and Ors.
Vs.
Respondent: Gandotra Traders and Ors.
Hon'ble Judges/Coram:
A.M. Mir, J.
1. Through the medium of this revision petition an order passed by Munsiff, Jammu on 4-11-1993 has been called in question. The impugned order disposes of an application filed by the plaintiff-petitioner on 14-9-1993. The application made a prayer for direction to the defendant-respondents to produce their witnesses at their own because while furnishing a list of witnesses on 18-12-1991 defendants had given a long list of 59 witnesses, without specifying the purpose for which these witnesses were required to be examined. The order under revision has dismissed that application and held that while furnishing the list due compliance of Order 16, Rule 1, C.P.C. has been made. Aggrieved by the said order the petitioner has come up in revision before this Court.
2. The suit is for eviction of a shop situate at Pacca Danga Jammu on the ground of personal necessity. I have gone through the long list of witnesses referred to above. By way of preamble defendant-respondent in para 2 of the application/list submit that he wants to produce these witnesses for purposes of proving the fact that the plaintiff is not the owner/landlord. On the other hand if father of the plaintiff who is the owner/landlord of the shop in question. It is also asserted in the preamble that the proposed witnesses would establish the fact that the requirement of the defendant was more pressing than that of the plaintiff. The third limb of the submission made in the preamble is that by producing these witnesses bona fide requirement of the defendant shall be established.
3. At a prima facie glance, the factum of bona fide requirement can be well determined while balancing the comparative requirement of the parties. So in short, on the own showing of the defendant, only two questions are to be answered and facts arising thereof to be proved.-
(1) Who is the owner/landlord, the plaintiff or his father ?
(ii) Whether the requirement of the plaintiff is bona fide and whose requirement out of the parties outways that of the other?
4. Mr. J. P. Singh appearing for the petitioner has submitted that for proving these two facts number of witnesses to be produced cannot be 59. So many of witnesses listed therein belong to Srinagar. Against every witness no specific purpose for which these witnesses are required to be summoned has been detailed out, Mr. Singh has drawn my attention to sub-rule (2) of Rule 1 of Order 16. Said rule reads as under:--
'A party desirous of obtaining any summons for the attendance of any person shall file, in the court an application, stating therein the purpose for which the witness is proposed to be summoned.'
5. I have heard the case on 25-3-1994 in part, Mr. L. K. Sharma has chosen not to appear before me despite the fact that the case was listed in the regular cause list. This leaves me with no alternative but to decide the revision petition ex parte.
6. I have gone through the order 'impugned and also the record, in particular the list of witnesses.
7. Order 16, Rule 1 does not lay-out the number of witnesses that a party in a suit can produce. That makes it clear that the legislature left this field to the courts of law who are seized of the matter in which witnesses :are proposed to be examined. A question arises as to whether the legislature can mean, and the courts can allow as many witnesses to be called by the court as a litigant chooses to. In my opinion if the answer is yes then courts will be put at the mercy of litigants and the chain of litigation will never end. If the answer is yes, then in a case like this, even if the defendant-respondent would like to summon numberless witnesses, no body can stop him. That means a civil suit cannot normally be decided during the lifetime of the suiter; That never can be the policy of laws. The first duty cast upon the courts is to control the proceedings. We with the advancement of our country and the growing complexities in our socio-economic pattern, have to address ourselves to the requirement of the time. Our law has to be real and meaningful. Courts have not only to dispense justice but do the same in a substantial manner. The growing concept of substantial justice is a laudable feature of our judicial system. If that be so then in every case when an application is made in terms of Order 16, Rule 1, C.P.C. court has to apply its mind and restrict the number of witnesses to an extent which should cater to the requirement of the case. The approach of the court should neither defeat the ends of justice nor cause undue delay in litigation. The court should not leave the number to the whims and fancies of the party producing the witnesses. Because a party interested in causing delay in a suit shall in that case be granted a premium for misusing the law of procedure. In determining number of witnesses a court should in my opinion, take into account the following guidelines :--
(a) Nature of the litigation;
(b) Number of issues required to be proved;
(c) Nature of the issues.
(d) The fact as to on whom has the onus been laid.
(e) The speficied purpose for which a particular witness is required to be produced.
(A) In order to control the proceedings the court, in the first instance, has to take into account the nature of the proceedings. In a matrimonial case or in a suit for eviction or any other like matter, if, as already observed, the choice of number of witnesses is left to a litigant then the court will be abdicating its legitimate obligations. In a case like the one in hand it will always be the endeavour of the defendant to protract litigation. He should not be allowed to do so by aimlessly furnishing an unending list of witnesses who belong to far-flung areas.
If that is done then these witnesses under the prevailing circumstances cannot be served for years together. Their examination by the court will be impossible for years to come. In that way the basis of the suit shall be knocked out.
(B) The second consideration will be as to how many issues are required to be proved. This may distinctify one matter from the other. In a case where parties are at variance on a number of issues, probably number of witnesses to be examined may be larger than in a case where number of issues is limited.
(C) Third consideration is as to what is the nature of the issues. In some cases the issues may be complicated. There the number of witnesses shall invariably be larger than in a case where the issues are simple.
(D) The fourth consideration is as to upon whom is the onus placed by the court. The number of witnesses to be produced by a party, upon whom burden of proof has been placed may be larger than the party who has only to lead evidence in rebuttal. The last but not the least of the considerations is that a party making an application under Order 16, Rule 1 and desirous of obtaining sommons for a person shall, in his application, state the purpose for which the witness is proposed to be summoned. Taking a que from the words used in Order 16, Rule 1(2), C.P.C. it will be pertinent to observe that the same relate to singularity of the noun 'witness' or 'person'. The words used are 'for the attendance of any person'. The grammer of the sub-rule suggests that against every person supposed to be called as a witness, the purpose of his production should be shown. Not that a long list of witness will be detailed out after stating that some questions are to be proved. Sub-rule (2) has to be read with sub-rule (1) in a conjective manner, where two purposes of calling witnesses are contemplated. These purposes are giving evidence or producing documents. Reading Sub-rules (1) and (2) together it will be safe to hold that against every witness, the party proposing to call that witness has to indicate as to for what purpose is he proposed to be called. This provision of law makes room for a prior information of the witness to come prepared for making deposition in the court or producing documents.
8. Code of Civil Procedure has been revolutionised by bringing in drastic amendment in the procedure, One of the improvements made is in respect of seeking assistance of the court in summoning witnesses. The earlier code left it for the parties to obtain summon after filing an application, provided the party making such application would within a period specified by the court pay the expenses for the witnesses.
9. In the amended Code, the addition of furnishing a list of witnesses within the stipulated time has deliberatedly been made. The party seeking to produce a witness is also required to specify the purpose for which the witness is proposed to be produced. Thus detailing out of a purpose is a necessary requirement and in absence of that the court will be within its limits to disallow summoning of that witness.
10. I am fortified in this view by an authority of the Apex court of the country, reported in AIR 1983 SC 925, wherein it has been laid down as under (at p. 929) :--
'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 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. But where the party would be in a position to produce its witnesses without the assistance of the court it can do so under Rule 1A of Order 16 irrespective of the fact whether the name of such witness is mentioned in the list or not.'
My finding will be incomplete if I do not make a reference to the provisions of law relating to 'proof and 'dis-proof' under the Evidence Act. The law enshrined in Section 134 of the Evidence Act does not require any particular number of witnesses to prove a certain fact. Under Section 3 of the Evidence Act a fact will be presumed to have been proved when after considering the matter before it, the court either believes it to exist or considers its existence to be so probable that a prudent man under the circumstances of aparticular case believes that such fact existed. Similarly a fact is disproved when after considering the matter before it, the court believes that the fact does not exist or considers its non-existence so probable that prudent man under those circumstances wouldact upon same supposition. So in ordinary course of law the facts to be proved, should be proved in a manner which on objective basis satisfies the court as in case of an ordinary prudent man of the existence of the fact.
11. Adverting back to the case in hand, I find that a couple of questions was required to be answered. The facts in issue were as to whether the plaintiff or his father was the owner, and whether the plaintiff had a bona fide personal requirement. The suit is one for eviction and the game of the defendant who is a tenant will be to feed nector to the suit. The issues are simple and the burden of proving both the issues, if the pleas are raised in the written statement must be upon the plaintiff.
12. On the strength of the guideline laid above, I feel that the issues could be proved by any number of witnesses, not exceeding ten. The Trial court has while passing the order impugned failed to apply its mind and control the proceedings in the matter. It has perhaps proceeded in a routine manner. If that is allowed lien we will only be paying lip service to the law of procedure. Let it be remembered that law of procedure cannot be pedantic in nature. Procedural law is a hand-maid at the disposal of Judges which enables them to do justice. The procedure should, in no case, stand in the way of Judges to do justice. Order 16, C.P.C. cannot be construed in a manner to give undue licence to a litigant.
13. On the foregoing analogy I while allowing the revision petition hold that the impugned order in this petition suffers from infirmities and cause miscarriage of justice. Same is quashed and the learned counsel for the defendant, who appeared at this stage, is directed to file a list of ten witnesses he proposes to examine after being summoned by the court. He will indicate against every witness as to for what purpose is that witness proposed to be produced. He will do so before the Trial court within two weeks from today. Parties shall appear before the Trial court on 26-9-1994. Trial court should not sleep over the matter and should utilise all its resources in effecting the service of the witnesses. In the case of some witnesses from Srinagar or any other place linked with Jammu through air service, their air-fare shall be deposited by him in respect of those witnesses and they will in the course of time be directed to attend the court in person under proviso to Rule 19 of Order 16, C.P.C. However, after the list is exhausted and if the defendant wants to produce any other witnesses, he will produce them of his own in not more than two sittings, which shall be conducted on two consecutive working days by the Trial court. The trial court, at the cost of repetition, is directed to proceed in the matter expediciously and lose no time in recording the evidence in full.
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