Whether plaintiff can be permitted to examine witness when he has not submitted witness list?

It   is   undisputed   that   in   the   present   case,   the 
petitioner/original   plaintiff   has   not   supplied   the   list   of   the 
witnesses.  The applications (Exhibits 228 and 229) filed by the 
petitioner praying for permission to examine the witnesses and 

for issuance of witness summons do not show any reason to 
enable   the   Court   to   record   its   reasons   for   permitting   the 
original plaintiff/petitioner to examine the witnesses or to issue 
the witness summons.  The trial Court has properly considered 
the matter.   Apart from this, the civil suit is of year 1994 and 
the   trial   Court   has   observed   that   the   petitioner/plaintiff   is 
unnecessarily  protracting   the  matter.    Be  that  as  it  may,  the 
plaintiff has not been able to point out any irregularity in the 
impugned orders.  The only submission made on behalf of the 
petitioner   is   that   if   the   petitioner/original   plaintiff   is   not 
permitted   to   examine   the   witnesses   named   by   him   in   the 
applications, Exhibits 228 and 229, then it will cause prejudice 
to   him.     This   submission   cannot   be   accepted   in   view   of   the 
provisions of sub­rules (1), (2) and (3) of Rule 1 of Order XVI 
of Code of Civil Procedure. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Anil Ramesh Bhusari
 v
Bhaskar Ramesh Bhusari


CORAM : Z. A. HAQ, J.
Citation;2015(1)ALLMR724
DATE : JUNE 16, 2014

Rule. Rule made returnable forthwith.
2.
Heard learned Advocates for the respective parties. 
3.
The  petition   takes  exception  to  the  orders   passed 
by   the   learned   trial   court   rejecting   the   application   filed   by 
the   petitioner   (Exhibit   228)   to   issue   witness   summons   to 
Shri Vithoba Rajaram Shelke and order rejecting the application 
(Exhibit 229) praying for recall of the order passed on Exhibit 
228 and for permission to examine Sudam Umaji Jadhav as the 
witness. 
4.
It is undisputed that the petitioner/original plaintiff 
has not given the list of witnesses in the application (Exhibit 

228).     Prayer   was   made   to   issue   witness   summons   to 
Shri   Vithoba   Shelke,   however,   no   reason   is   given   in   the 
application   pointing   out   the   necessity   of   examining   the   said 
witness.   In the application (Exhibit 229), the plaintiff prayed 
for   recall   of   the   order   passed   on   application   (Exhibit   228) 
and   submitted   that   the   plaintiff   be   permitted   to   examine 
Shri Sudam Umaji Jadhav. Again, the reason necessitating the 
examination of this witness is not given in the application.  Sub­
rules (1), (2), (3) and (4) of Rule 1 of Order XVI of the Code of 
Civil Procedure read as follows. 
                      ORDER XVI
            SUMMONING AND ATTENDANCE OF WITNESSES
1.  List of witnesses and summons to witnesses. ­ 
(1)          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, the parties shall present in Court a list of 
witnesses   whom   they   propose   to   call   either   to   give 
evidence or to produce documents and obtain summonses 
to such persons for their attendance in Court.
(2)
A party desirous of obtaining any summons for 
the   attendance   of   any   person   shall   file   in   Court   an 
application   stating   therein   the   purpose   for   which   the 
witness is proposed to be summoned.
(3)
The   Court   may,   for   reasons   to   be   recorded, 
permit   a   party   to   call,   whether   by   summoning   through 
Court or otherwise, any witness, other than those whose 

names appear in the list referred to in sub­rule (1), if such 
party shows sufficient cause for the omission to mention 
the name of such witness in the said list. 
(4)                     Subject   to   the   provisions   of   sub­rule   (2), 
summonses referred to in this rule may be obtained by the 
parties on an application to the [Court in this behalf within  
five days of presenting the list of witnesses under sub­rule  
(1).]
The provisions of Rule 1(1) of Order XVI  casts an obligation on 

the party to submit the list of witnesses whom it proposes to 
call  either  to give   evidence  or  to produce  documents  and to 
obtain   summons   in   the   name   of   such   persons   for   their 
attendance in Court. 
           Rule 1(2) of Order XVI lays down that a party desirous 
of   obtaining   any  summons   for   the   attendance   of   any  person 
shall file an application in Court stating therein the purpose for 
which the witness is proposed to be summoned. 
             Rule 1(3) of Order XVI  lays down that the Court may, 
for reasons to be recorded, permit a party to call, whether by 
summoning   through   Court   or   otherwise,   any   witness,   other 
than those whose names appear in the list referred to in sub­
rule (1), if such party show sufficient cause for the omission to 

Considering the procedure laid down in Order XVI, 
5.
mention the name of such witness in the said list. 
Rule 1(1)(2) and (3) of Code of Civil Procedure, it is clear that 
the   party   desirous   of   examining   any   witness   has   to   obtain 
summons for his attendance in the Court and this exercise has 
to   be   done   in   respect   of   the   witnesses   whose   names   are 
included in the list submitted by the party.   As per Order XVI 
Rule 1(3) of the Code of Civil Procedure, the Court may permit 
the   party   to   call   any   other   witness,   provided   the   party   who 
desires   to   examine   any   such   witness   whose   name   is   not 
included in the list of witnesses, show sufficient cause for the 
omission to mention the name of such witness in the said list 
and the Court has to record reasons for permitting the party to 
examine   the   witness   whose   name   is   not   included   in   the   list 
submitted as per sub­rule (1) of Rule 1. 
6.
It   is   undisputed   that   in   the   present   case,   the 
petitioner/original   plaintiff   has   not   supplied   the   list   of   the 
witnesses.  The applications (Exhibits 228 and 229) filed by the 
petitioner praying for permission to examine the witnesses and 

for issuance of witness summons do not show any reason to 
enable   the   Court   to   record   its   reasons   for   permitting   the 
original plaintiff/petitioner to examine the witnesses or to issue 
the witness summons.  The trial Court has properly considered 
the matter.   Apart from this, the civil suit is of year 1994 and 
the   trial   Court   has   observed   that   the   petitioner/plaintiff   is 
unnecessarily  protracting   the  matter.    Be  that  as  it  may,  the 
plaintiff has not been able to point out any irregularity in the 
impugned orders.  The only submission made on behalf of the 
petitioner   is   that   if   the   petitioner/original   plaintiff   is   not 
permitted   to   examine   the   witnesses   named   by   him   in   the 
applications, Exhibits 228 and 229, then it will cause prejudice 
to   him.     This   submission   cannot   be   accepted   in   view   of   the 
provisions of sub­rules (1), (2) and (3) of Rule 1 of Order XVI 
of Code of Civil Procedure. 
7.
Sub­rule (4) of Rule 1 of Order XVI lays down that 
the summons referred to in this rule may be obtained by the 
parties   on   an   application   to   the   Court   within   five   days   of 
presenting the list of witnesses under sub­rule (1) as mentioned 
above.   However, the sub­rule (4) of Rule 1 of Order XVI has 

been   brought   in   statute   book   by   way   of   amendment   on 
1­7­2002   and   the   civil   suit   is   prior   to   that   and   may   not   be 
affected by this provision.   But the petitioner/original plaintiff 
having failed to comply with the requirements of Rule 1(1)(2) 
and (3) of Order XVI of Code of Civil Procedure, in my view, 
petition is dismissed. 
the impugned order cannot be faulted with.   Hence, the writ 
JUDGE
Parties to bear their own costs. 

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