Case Note & Summary
The dispute arose from a civil suit for declaration of title and possession of plaint schedule property filed by the appellant plaintiff. On August 3, 1993, the appellant filed an application enclosing a list of witnesses to issue summons for adducing evidence. The affidavit filed by the appellant's husband, who was the general power of attorney holder, stated that he was under a bonafide mistaken impression that the list of witnesses was already filed, and the mistake was noticed when preparing for trial with counsel. The application sought permission to file the list of witnesses. The trial court dismissed the application on September 6, 1993, holding that there was no proper explanation for the delay. The High Court of Karnataka declined to interfere in revision. The appellant then appealed to the Supreme Court by special leave. The Supreme Court examined Order 16 Rules 1 and 1(A) of the Code of Civil Procedure, 1908. The Court observed that these provisions require parties to file a list of witnesses on or before the date fixed for settlement of issues, and failure to do so prevents them from availing the assistance of the court to secure witness attendance. However, Rule 1(A) clarifies that they may bring witnesses without the assistance of the court. The Court noted that the legislature did not impose a total prohibition on producing witnesses or documents. When a party seeks court assistance after the prescribed time, reasons for delay must be given. The Court found that the appellant's explanation of bonafide mistake was sufficient, particularly because the trial was yet to begin. The Court held that the trial court committed an illegality in refusing to receive the list. The appeal was allowed, the orders of the trial court and the High Court were set aside, the list already furnished was declared valid, and the trial court was directed to summon the witnesses for examination on behalf of the plaintiff. No costs were awarded.
Headnote
A) Civil Procedure - Witness Summons - Order 16 Rules 1 and 1(A) Code of Civil Procedure, 1908 - Late filing of witness list due to bonafide mistake not barred when trial not commenced - The appellant plaintiff filed an application to file witness list and summon witnesses after discovering a bonafide mistaken impression that the list was already filed; the trial court dismissed the application and the High Court declined to interfere. The Supreme Court held that Order 16 Rules 1 and 1(A) CPC do not impose a total prohibition on producing witnesses without court assistance, and when a party seeks court assistance after delay, reasons must be given. The Court found the explanation of bonafide mistake sufficient, especially since trial had not begun, and set aside the lower orders, directing the trial court to summon the witnesses for the plaintiff (Paras 1-21)
Issue of Consideration
Whether the trial court committed illegality in refusing to receive the list of witnesses when the failure was due to bonafide mistake and trial had not commenced; interpretation of Order 16 Rules 1 and 1(A) CPC regarding prohibition on producing witnesses without court assistance
Final Decision
Appeal allowed; orders of trial court and High Court set aside; list furnished is valid list; trial court directed to summon witnesses for examination on behalf of plaintiff; no costs.
Law Points
- Order 16 Rules 1 and 1(A) CPC do not impose a total prohibition on parties producing witnesses
- parties may bring witnesses without court assistance
- when seeking court assistance for summons after delay parties must give reasons
- bonafide mistake and trial not begun make refusal illegal
