Failure To Show Reason For Omission Of Witnesses From List Cannot Be Reason To Reject Examination Request- Bombay HC

A Bombay High Court Bench of Justice Sandeep V Marne has held that a party cannot be denied the opportunity of examining witnesses simply due to a technical lapse. In that context, it was observed that "even if Respondents/Plaintiffs have failed to show/plead any cause for omission of the names of said two witnesses in the list of witnesses which ought to have been filed under the provisions of sub-rule 1 of Rule 1 of Order XVI of the CPC, that alone cannot be a reason for rejecting Respondents/Plaintiffs request for examination of said two witnesses."

Counsel CK Tripathi appeared for the Petitioner/Defendant, while Counsel Neeta P Karnik appeared for the Respondents/Plaintiffs.

In this case, a petition was filed to challenge an order on the ground that the Respondents/Plaintiffs in the first instance, had failed to file the list of witnesses as mandated under Order XVI Rule 1 of the CPC. Having failed to file the list of witnesses under that provision, it was incumbent on the Respondents/ Plaintiffs to show sufficient cause for seeking issuance of witnesses summons to additional witnesses under the provisions of Sub-rule 3 of Rule 1 of Order XVI of CPC. It was contended that since no sufficient cause was pleaded or shown, the trial court erred in allowing the Application and issuing summons to witnesses whose names were not included in the list of witnesses to be filed under the provisions of sub-rule 1 of Rule 1 of Order XVI of CPC.

The issue placed before the Court was "Whether the Trial Court committed an error by allowing the Respondents/Plaintiffs’ Application filed under the provision of Order XVI, Rule 1(3) of the CPC in the absence of a sufficient cause being shown?". 

The Court noted that it was important to examine whether the Respondents/Plaintiffs could be denied an opportunity to examine additional witnesses because of a technical failure to plead a sufficient cause. In that context, it was observed that "If the Respondents/Plaintiffs in present case is denied an opportunity of examining the two additional witnesses for technical lapse of non inclusion of their names in the list of witnesses or for non-showing of sufficient cause in the application, the same would result in miscarriage of justice. In the event of Respondents/Plaintiffs being successful in proving that the transaction in question is that of a sale by examining the said two additional witnesses, the same would have a material bearing on the result of litigation. In such circumstances, Court would not deny them the opportunity by showing technical rules of procedure, drafted for advancing the cause of justice."

Following the principles enunciated by the Apex Court in Kailash vs. Nanhku & Ors., the Court held that "even if Respondents/Plaintiffs have failed to show/plead any cause for omission of the names of said two witnesses in the list of witnesses which ought to have been filed under the provisions of sub-rule 1 of Rule 1 of Order XVI of the CPC, that alone cannot be a reason for rejecting Respondents/Plaintiffs request for examination of said two witnesses. This is particularly true when this Court has already arrived at a finding that the examination of the said two witnesses appears to be necessary for the purpose of determining the real question of controversy between the parties."

Therefore, it was held that the Trial Court did not commit any error in passing the impugned order and that the petition was devoid of merits. Subsequently, the petition was dismissed without any order as to costs.

Cause Title: Dinesh Singh Bhim Singh v. Vinod Shobhraj Gajaria & Anr.

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