GANGA RAM v. SHEKHAR KUMAR

1. Allowed, subject to all just exceptions. Application is disposed of. CM APPL. 50249/2019 (delay in refiling)

2. For the reasons stated in the application, the delay in refiling the petition is condoned. Application is disposed of. CM (M) 1656/2019 & CM APPL. 50247/2019 (stay)

3. There are two grievances in the present petition. The first grievance is in respect of order dated 27th August, 2019. Ld. counsel for the Petitioner- Defendant (hereinafter the “Defendant”), submits that the Respondent– Plaintiff (hereinafter the “Plaintiff”) had not filed any list of witnesses. After the cross-examination of PW-1 was concluded on 21st January 2019, the Plaintiff filed the evidence way of affidavit of PW-2 namely, Baldev Singh, only to fulfil the lacuna in the cross-examination of PW-1. He submits that under the provisions of Order XVI CPC, without filing of the 2019:DHC:6255 list of witnesses, such a procedure cannot be adopted.

4. The second grievance is in relation to de-exhibition of the documents, which have been exhibited as Ex.PW-1/2 (colly) namely agreement to sell, Will, SPA, Receipt, etc.

5. In respect of the first issue, there is no doubt that without filing of the list of witnesses, parties ought not to be permitted to commence the recording of evidence. Filing the list of witnesses is mandatory, as held by this Court in Zile Singh v. Santosh @ Santra & Ors. [CM (M) 1296/2018, decided on 6th November, 2019]:

6. However, it is noticed that the general practice that has been followed in the Trial Courts is to permit the commencement of evidence without insisting for lists of witnesses being filed by the parties. However, such a practice is contrary to law and is required to be stopped with immediate effect.

7. In the present case, however, since PW-2 is claimed to be a witness to various documents, which are relied upon by the Plaintiff and the Plaintiff has also filed the evidence of PW-2, a copy of which has been served, PW-2 is being permitted to lead his evidence. The Defendant would be entitled to cross-examine the PW-2. However, it is made clear that no further evidence shall be permitted on behalf of the Plaintiff.

8. Insofar as the second issue, in relation to de-exhibition of documents, is concerned, it is the settled position in law that mere exhibition of documents would not mean that the same would be read in evidence without having examined if the same have been proved in accordance with law. If the Defendant has any objections in respect of mode of proof, admissibility or other objections in respect of these documents, prior to commencement of cross-examination, the said objections would be raised and recorded by the Trial Court. After recording the objections of the Defendant, the crossexamination shall commence. The objections shall be dealt with and adjudicated at the time of final hearing. It is made clear that mere exhibition of these documents, shall not mean that the Trial Court has deemed them to have been proved in accordance with law or that the same have to be read in evidence.