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TMI Blog2022 (1) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... 24th December, 2011 (Annexure-7) passed by learned Civil Judge (Senior Division), Berhampur, Ganjam in T.S. No.75 of 1980 rejecting an application filed by the Plaintiffs-Petitioners under Order XVI Rule 1 C.P.C. thereby refusing to summon some of the witnesses as mentioned in the schedule of the petition through Court process and to produce documents more-fully described therein. 4. At the outset, Mr. Mishra, learned Senior Advocate appearing for the Petitioners confines his prayer to Sl. No.4, i.e. to summon the Commissioner, Central Excise and Custom (The Collector, Central Excise and Custom, Bhubaneswar-1 in the district of Khurda) to produce the order dated 26th November, 1976 passed by the Collector of Central Excise Customs, Bhubane ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Senior Advocate relied upon the decision in the case of Achutananda Sahoo -vrs.- Dhruba Charan Sahoo and others, reported in AIR 1987 Orissa 179, wherein this Court at Paragraphs-3 and 4 held as follows: "3. Mr. S. Kr. Mohanty, the learned counsel for the plaintiff-opposite party No. 1, submitted that the Parliament by incorporating sub-rule (3) to Rule 1 of Order 16, C.P.C. clearly intended that the parties should take steps for summoning the witnesses much earlier to the date of hearing so that both the parties are able to know the nature of evidence intended to be adduced by the other party. In case permission is given at the last moment to examine witnesses, there is every chance of the parties playing hide and seek resulting in the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted in (2000) 3 WLC 710, wherein at paragraph-10 it is held as follows: "10. As per Sub-rule (1) of Rule 1 of Order 16 is attracted and applicable at the stage after the issues are settled but not beyond 15 days where after, the parties to the suit are required to file a list of their witnesses in support of their respective cases. Sub-Rule (2) of Rule 1 of Order 16 applies to a party who seeks to obtain summons for the attendance of any person provided he files an application stating the purpose for which he is proposed to be summoned. Thereafter, as per Sub-Rule (3) of Rule 1 of Order 16 which applies to the case where a party desires to call a witness or witnesses by summoning them through court or otherwise, a witness whose name cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, learned trial court would have been in a position to ascertain as to whether those documents are at all necessary for determining the real question in controversy between the parties. He further submits that the application ought to have been a petition under Order XVI Rule 6 read with Order XI Rule 14 C.P.C., in which event the person, if summoned, would only produce the documents for examination of the court if those documents are relevant for proper adjudication of the suit. In support of his case, he relied upon a decision of this court in the case of Saraswati Nayak and others -v- Susen Nayak and another, reported in 2017 (Suppl.-I) OLR 179, wherein at paragraph-7 it is held as follows: "7. In Dolagovinda Pradhan (supra), this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he writ petition. 8. T.S. No.75 of 1980 was filed by one Brajeswar Devi and after her death, the Defendant No.5, namely, late Ananta Narayan Singh Deo was substituted and transposed as Plaintiff in her place. When his evidence was recorded in part and before completion of his examination-in-chief, said Ananta Narayan Singh Deo died on 1st December, 2003. Accordingly, the present Petitioners were substituted in his place. At such a juncture, the Petitioners filed an application under Order XVI Rule 1 C.P.C. (Annexure-4), appending Annexure-5 to the petition to produce some of witnesses as well as to summon others through court. Learned trial court allowed the petition with regard to production of Kashinath Panda, Bhaskar Mishra and Binayak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould have been saved. I do not find any force in the submission of learned counsel for the Petitioners, in as much as the Civil Procedure Code contains specific provisions for adjudication of litigation before a civil court. Specific provisions have been made for summoning witnesses and production of documents. The procedure provided in the Code are for definite purpose to make the system of delivery of justice hassle free and smooth. Any deviation in the prescribed procedure may lead to miscarriage of justice. It cannot, of course, be denied that the procedure is a handmaid of justice. Procedure laid down in the Code should not be utilised to obstruct freeflow of justice, if the provisions made in Civil Procedure Code are strictly followe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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