When it is permissible for court to close side of parties for evidence?

In the present case, no list of witnesses was filed under Rule 1 of Order 16, no application for leave to examine the witness which was named in the list of witnesses was made to the Court. As such, the Court was not required to adjourn the matter. Yet, in the interest of justice, the Court granted adjournments on several occasions to give an opportunity to the plaintiff to examine Mr. Asrani who was not named as a witness in the witness list. The suit is 5 years old and was part heard. Proviso to Sub-rule (2) of Rule 1 of Order 17 provides that when the hearing of the suit has commenced, it shall be continued from day to day. In the present case, the evidence of PW No. 1 was concluded on 22nd March 2010. Under proviso of Sub-rule (2) of Rule 1 of Order 17, the Court should have proceeded day to day but showing indulgence to the petitioner and granted two adjournments before closing evidence of the petitioner plaintiff.I do not see any error committed by the Court in closing the evidence of the plaintiff. There is no merit in the writ petition which is hereby rejected summarily.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3930 of 2010

Decided On: 09.06.2010

M.M. Corporation Vs. The Juhu Vile Parle Development

Hon'ble Judges/Coram:

D.G. Karnik, J.

Citation: (2010) 4 MHLJ 931

1. This Writ Petition is directed against an interlocutory order dated 23rd April 2010 passed by the learned Judge of the City Civil Court closing the evidence of the plaintiff.

2. Apart from the fact that it is an interlocutory order, I am not inclined to interfere even on merits.

3. The plaintiff examined himself as PW No. 1. Recording of deposition of the plaintiff was completed on 22nd March 2010 and the matter was adjourned to 7th April 2010 for recording of evidence of witnesses, if any, of the plaintiff. On that day, the plaintiff did not produce any witness but asked for an adjournment and the matter was adjourned to 16th April 2010. On 16th April 2010 also the plaintiff did not produce any witness but asked for further adjournment and the Court adjourned the matter to 23rd April 2010 by clarifying that the matter was adjourned for recording of further evidence of the plaintiff as a last chance. On 23rd April 2010 also the plaintiff did not produce any witness but made an application for adjournment which was refused and the evidence of the plaintiff was closed. That order closing the evidence is impugned in this petition.

4. Learned Counsel for the plaintiff submitted that plaintiff wanted to examine one Mr. Nirmal Asrani who was the former employee of the defendant. The plaintiff does not know his address and therefore he was seeking the assistance of the defendant for getting his address but the defendant was unhelpful and intimated the plaintiff that Mr. Asrani had left the employment and the defendant did not know his address. It is in these circumstances that the plaintiff was seeking the adjournment and the Court ought to have granted the adjournment.

5. Order 16 Rule 1 of the Code of Civil Procedure provides that on or before such date as the Court may appoint, not later than 15 days after the date on which the issues are settled, parties shall present in the court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses for their attendance. Admittedly, plaintiff had not filed any list of witnesses. Sub-rule (3) of Rule 1 of Order 16 provides 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 shows sufficient cause for the omission to mention the name of such witness in the said list. Rule 1-A of Order 16 permits that subject to Rule 1(3), a party may without applying for summons bring any witness to give evidence or to produce document. Thus, where a person who is not named as a witness in the witness list required to be furnished under Rule 1 is to be examined by a party, he can do so only with the leave of the Court which can be granted by the Court for sufficient cause.

6. In the present case, no list of witnesses was filed under Rule 1 of Order 16, no application for leave to examine the witness which was named in the list of witnesses was made to the Court. As such, the Court was not required to adjourn the matter. Yet, in the interest of justice, the Court granted adjournments on several occasions to give an opportunity to the plaintiff to examine Mr. Asrani who was not named as a witness in the witness list. The suit is 5 years old and was part heard. Proviso to Sub-rule (2) of Rule 1 of Order 17 provides that when the hearing of the suit has commenced, it shall be continued from day to day. In the present case, the evidence of PW No. 1 was concluded on 22nd March 2010. Under proviso of Sub-rule (2) of Rule 1 of Order 17, the Court should have proceeded day to day but showing indulgence to the petitioner and granted two adjournments before closing evidence of the petitioner plaintiff. I do not see any error committed by the Court in closing the evidence of the plaintiff. There is no merit in the writ petition which is hereby rejected summarily.

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