Harinder Guman v. Paramjit Singh Dhillon

9. Order 16 of the CPC reads as under:- 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 sub-rule (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 sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the Court in this behalf [within five days of presenting the list of witnesses under sub-rule (1)]."

10. It is the case of the Plaintiff that the present application to place on record the list of witnesses of the Defendant has been filed only to delay the proceedings. It is also the case of the Plaintiff that in his suit in Punjab, the Defendant has already examined five witnesses and since his evidence has already been closed in Punjab, no prejudice would be caused to the Defendant.

11. Heard the learned Counsels for the parties and perused the material on record.

12. On 06.05.2024, this Court has already observed that the Defendant is entitled to an opportunity for leading the evidence in CS(OS) 373/2012. The Order dated 06.05.2024 is being quoted to its entirety and the same reads as under:-

2. It is submitted that a suit had been filed in respect of the same suit properties by the defendant in Punjab, while plaintiff has filed the present suit in Delhi. Two suits were consolidated by the orders of the Hon’ble Supreme Court dated 24.10.2019. Since then the evidence is being recorded in both the suits together. The plaintiff has already concluded the evidence on 10.11.2023. In the Punjab suit, the present defendant had concluded his evidence in August, 2018. No further evidence is required to be led by the defendant.

3. However, since consolidation has come subsequently by Order dated 24.10.2019, the defendant is entitled to an opportunity for leading the evidence in the suit of plaintiff filed in Delhi.

4. The counsel for the defendant submits that the witnesses, who are essentially official witnesses, are required to be summoned. The list of witnesses has been filed in the year 2023 which is highly belated. The counsel for the defendant submits that he would be moving an appropriate application for bringing the list of witnesses on record.

5. Learned counsel for plaintiff has submitted that the cost of Rs.50,000/- that has been imposed in the year 2018 on the defendant, has not been paid till date. The cost is undertaken to be paid to the plaintiff within seven days by the learned counsel for defendant. It is also submitted on behalf of the defendant, that the witnesses already recorded on behalf of defendant shall not be repeated.

6. The evidence is already being recorded by learned Local Commissioner. An endeavour shall be made by the learned Local Commissioner to conclude the entire evidence within three months.

7. List before learned Local Commissioner for concluding the evidence of the parties on 13.05.2024.

8. List before this court on 29.10.2024."

13. The matter was thereafter listed before the Ld. Local Commissioner on 13.05.2024 for concluding the evidence of the parties and the learned Counsel for the Defendant submitted before the Ld. Local Commissioner that he will move an appropriate application before the Court for bringing the list of witnesses on record but the same was not objected to by the Plaintiff and when the list of witnesses was filed, an objection was raised, which resulted in Order dated 12.07.2024.

14. The list of witnesses which has been filed also contains a Handwriting Expert at Serial No.13 at the expense of the Defendant.

15. Issues No.3, 4, 5 and 6 reads as under:- "(iii) Whether the late father of the parties; Late (Retd) Col. Kultar Singh Dhillon executed a valid Agreement to Sell dated 5th July, 1973 alongwith receipt, registered General Power of Attorney, and Will for 1200 sq.yards out of an area of 4400 sq.yards in favour of the plaintiff? If so, its effect? GPP (iv)Whether Shri Kultar Singh Dhillon, the father of the parties, executed any Will dated 22/08/2011, if so, its effect? OPD

(v) Whether the suit has not been properly valued for the purposes of court fees and jurisdiction? OPD (vi)Whether the plaintiff is entitled to a decree of partition in the properties mentioned in Schedule-A to the plaint? If so, what is the share of the parties? OPP"

16. No doubt, some of the issues framed in CS(OS) 373/2012 and the issues framed in Punjab in CS/18704/2013, more particularly Issues No.7 & 8 overlap and the Defendant has led evidence. However, the material on record indicates that the suit was virtually stayed from 2015 to 2024 and no progress has been made in the suit. The Defendant cannot be faulted for not filing the list of witnesses. Since the evidence of the Plaintiff is almost over and the Defendant is yet to commence evidence, the plea taken by the Plaintiff that filing of the list of witnesses will delay the proceedings, cannot be accepted.

17. It is well settled that Order 16 of CPC is only directory in nature and not mandatory. The Apex Court in Lalitha J. Rai v. Aithappa Rai, (1995) 4 SCC 244, has observed as under:-

4. 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 bona fide impression that they have already filed the list of the witnesses along with 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."

18. The effect of the said Rule is that when delay is bona fide and the Defendant cannot be attributed for the delay, the Courts must be liberal in permitting leading of defence evidence. In any event, this Court vide Order dated 06.08.2024 has already permitted the Defendant to lead evidence in the present suit also.

19. Since there was no progress in the Suit between 2015-2024 and in view of the Order dated 06.05.2024 permitting the Defendant to lead evidence, this Court is inclined to permit the Defendant to place the list of witnesses on record. The learned Local Commissioner is directed to make an endeavour to conclude the recording of evidence of the Defendant within a period of three months from today.

20. Resultantly, the instant application is allowed.

21. The Defendant is permitted to file the list of witnesses within two weeks from today. CS(OS) 373/2012 & I.A. 12409/2021, I.A. 16231/2022 CS(OS) 675/2019 List on 04.12.2024 before the Local Commissioner.

SUBRAMONIUM PRASAD, J NOVEMBER 26, 2024