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TMI Blog2000 (7) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... -in-chief of defendant who appeared as DW 1 was completed on 6.11.98 and thereafter since the plaintiff moved certain applications the trial Court first considered those applications. Ultimately, the plaintiff cross examined Jagdish defendant (DW1) on nine dates and closed his cross examination on 12.10.99. Since, it has been plaintiff's case that the defendant had sublet the suit premises without permission of the plaintiff to one Dinesh Parwani who unauthorisedly established business of STD/PCO Shop thereon, plaintiff's application for summoning file as to establish his case for business of STD/PCO Shop, was allowed by the trial Court on costs of ₹ 400/- and in this regard, a number of questions were put to Jagdish (DW1) (defendant) by the plaintiff during cross examination. (3). However, the defendant moved an application under Order 16 Rule 1 CPC for examining two additional witnesses on his behalf namely; (1) Dinesh Parwani and (2) Montoo Jasnani by incorporating their names in the list of defendant witnesses already furnished to the trial Court in order to disprove the fact of sub-letting developed by the plaintiff in his amended plaint, to which the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law inasmuch as he did not proceed in accordance with mandate of Order 16 Rule 1(1), (2), (3) & (4) CPC and on earlier occasion when had filed the application under Order 16 Rule 1 CPC he did not insist or prefer to make any prayer for examining the two more witnesses and he did not follow earlier orders dated 12.7.99 and 21.12.99. He also added that the judgment of this Court in Kalu v. Chhitar (2), was wrongly applied to the Instant case. (6). On the contrary, Shri J.P. Goyal learned counsel for the respondent defendant contended that at his own instance and without assistance of the Court, the defendant has produced two additional witnesses Montoo Jasnani on one date fixed for recording defence evidence and Dinesh Parwani on subsequent date and that apart Montoo Jasnani named in the application in question has already been examined by the trial Court and the plaintiff without having raised any objection has already cross examined him and that being so, once the impugned order has already been acted upon, this revision petition of the petitioner is devoid of merit and hence no maintainable. (7). Supporting the reasons assigned by the trial court in the impugned order, Shri Goya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to in Sub-rule (1) of Rule 1. Thus powers of relaxation are vested with the Court in appropriate case under Order 16 Rule 1A, CPC. (9). The controversy at issue between the parties in this petition which arises out of the impugned order passed by the trial Court is confined to the defendant's application filed on 6.1.2000 Under Order 16 Rule 1 CPC wherein it has been prayed for permission to examine two additional witnesses namely; (1) Dinesh Parwani and (2) Montoo Jashani by Incorporating them in the list of defendant's witnesses for being summoned in accordance with law, whose names could not be included earlier because after list of defendant's witnesses was filed, plaintiff amended his plaint and consequently it has necessitated to examine the said witnesses by way of additional evidence. (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 perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o apply for under Sub-rule (2) party is required to state the purpose for which the witness is proposed to be summoned. Since, In the instant case, the defendant did not mention the two additional witnesses in the list submitted earlier under Sub-Rule (1) of Rule 1 after the issues were settled, definitely he has no option but to apply for either under Sub-rule (3) of Order 16 CPC so as to call witnesses by summoning through court or otherwise, or under rule 1A of Order 16 so as to call witness without apply for summons under Rule 1, but subject to showing sufficient cause for his omission to name the desired witness in the list filed earlier under Sub-Rule (1). Moreover, if conjointly read together with Order 18 Rule 2(4) CPC, it is explicit clear that the Court can direct or permit any party to examine any witness at any stage of the suit irrespective of the fact as to whether the name of such witness or witnesses had not been recorded in the list of witnesses submitted earlier by the concerned party to the case. Thus In this view of the matter, I am consequently of the view that the defendant was rightly permitted by the trial Court to have examined two additional witnesses espe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that mere fact that the concerned party could not file the list of witnesses within the prescribed time, it cannot take away its' right to defend the case and produce the additional witnesses. It was further observed that the Court's paramount duty is to do Justice between the parties and to arrive at the right conclusion by giving full opportunity to the parties to lead evidence in support of their respective case, Moreover, it is trite law that the procedural rules are subservient to the principle and object of administration of justice and cannot be allowed to retard it, inasmuch as procedural wringers should not be given proportionate importance to throttle justice. Thus, the aggrieved party must have full opportunity to give evidence if the justice requires It and there is no injustice if other side can be compensated by costs. This proposition is also supported by the decision of the Apex Court in Sangram Singh v. Election Tribunal Kota (4). (15). In the present case, even the plaintiff also filed application under Order 16 Rules 1(2), 1(3) & 1(4) CPC on 2.6.99 stating therein that the defendant has sublet suit premises to one Dinesh Parwani Indulging in carrying ..... X X X X Extracts X X X X X X X X Extracts X X X X
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