Holding

The Supreme Court held that the trial court erred in refusing to accept the belated list of witnesses; the list is valid and the court must summon the witnesses.

Summary

Lalitha filed a suit for declaration of title and possession and later filed an application on August 3, 1993, seeking to file a list of witnesses for summoning. Her husband, acting as general power of attorney, submitted an affidavit stating they mistakenly believed the list had already been filed, and the omission was not intentional. The trial court dismissed the application for lack of a proper explanation for the delay, and the Karnataka High Court upheld that dismissal. On appeal, the Supreme Court held that while Order 16 Rule 1 and Rule 1(A) of the CPC require parties seeking the court's assistance to explain any delay in filing the list, the legislature does not impose an absolute prohibition on producing witnesses. Since the trial had not yet commenced and the explanation of a bona‑fide mistake was satisfactory, the trial court’s refusal was illegal. The appeal was allowed, the earlier orders set aside, the list of witnesses accepted, and the trial court directed to summon the witnesses.

Issues considered

Whether a belated filing of the list of witnesses under Order 16 Rule 1 of the CPC can be condoned on the ground of a bona‑fide mistake.
Whether the trial court erred in refusing to accept the list of witnesses without a satisfactory explanation for the delay.

Legislation cited

Code of Civil Procedure, 1908s. Order 16 Rule 1, s. Order 16 Rule 1(A)

Subjects

CPCOrder 16list of witnessesdelaycondonationcivil proceduresummonsevidenceappeal

Judgment

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LALITHA J. RAJ A
v.
AITHAPPA RAJ

APRIL 27, 1995

[K. RAMASWAMY AND B.L. HANSARIA, JJ.] B

Code of Civil Procedure, 1908 :

Order 16-Rules I and l(A)-List of witnesses-Furnishing of-Delay
in-f'wty to give reasons-Application could be allowed if there are sufficient C
~easons for the delay, as there is no total prohibition.

In a suit tiled by the appellant-Plaintiff, the plaintiff tiled an applica-
tion enclosing list of witnesses for summoning them for adduction of
evidence to prove her case. As a general power of attorney holder, her
l!nsband tiled an affidavit stating that he was under bona-fide mistaken D
impression that the list of witnesses was already filed, and therefore, the
failure io file the list of witnesses was not intentional. The trial Court
dismissed the application holding that there was no proper explanation
for the delay. On revision, the High Court declined to interfere. Hence this
appeal. E
Allowing the appeal, this Court

HELD : 1. The legislature did not put a total prohibition on the party
to produce the witnesses or the production of the documents for proof of the
respective case. Nonetheless, when they seek the assistance of the Court, F
they are enjoined to give reasons as to why they have not filed the applica-
tion within the time prescribed under Rule 1 of Order 16. [863-B, Cl

2. In the application it was stated by the husband of the appellant
that they were under the bonafide impression that they had already tiled
the list of the witnesses alongwith the documents and that the mistake of G
-I
/ non-filing the list was discovered when they were getting ready for the trial.
It is not in dispute that the trial is yet to begin. The trial court committed
illegality in ·refusing to receive the list for summoning the witnesses for
adduction of evidence by the plaintiff. The orders of the trial court and the
High Court are set aside. The list already furnished is a valid list. The trial H
861
862 SUPREME COURT REPORTS [1995] 3 S.C.R.

A court is directed to summon the witnesses for examination on behalf of the
plaintiff. [863·C to E]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5699 of
1995.

B From the Judgment and Order dated 20.9.93 of the Karnataka High
Court in C.R.P. 2539 of 1993.

Ms. Sangeeta Agrawal and S.K. Kulkarni for the Appellant.
\
-
The following Order of the Court was delivered :
c Leave granted.

The appellant plaintiff laid the suit for declaration of title and for
possession of the plaint schedule property. On Augnst 3, 1993 the appellant
filed an application enclosing the list of witnesses to issue summons to them
D for adduction of evidences to prove her case. In the affidavit filed by the r- >

husband, who is the general power of attorney holder, it was stated that he
was under bonafide mistaken impression that the list of witnesses was
already filed, but he noticed that mistake when he was getting ready, in
consultation with the counsel, to adduce evidence at the trial. It was,
therefore, stated that the failure to file the list of witnesses was not
E intentional. Accordingly, he sought permission of the court to file the list
of witnesses. The trial court in its order dated September 6 ,1993 dismissed
the application holding that there is no proper ~xplanation for the delay in

F
filing the list of witnesses. On revision, the High Court of Karnataka
declined to interfere with the order. Thus, this appeal by special leave. "'"'
Order 16 Rules 1 and l(A) adumbrate that the witne.s at the trial
court arc to be produced for examination by the parties by their filing the
list, and omission thereon prohibits them to avail the assistance of the court
to secure their attendance to give evidence or to produce documents on
their behalf. It is true that the legislature amended Order 16 Rule 1 and
G added rule l(A) to see that the undue delay should not be caused iu the
l.
trial of the suit by filing list of witnesses or the documents at belated stage.
Thereby, it envisages that on or before the date fixed by the court for
settlement of issues and not later than 15 days after the date on which
issues were settled, the parties are to file the list of such witnesses whom
H they propose to call either to give evidence or to produce documents and
LALITHA v. ARAI 863

they are required to obtaiu summous to such witnesses for their attendance A
in the court. On their failure to do the same, Rule {l)A says that they may
without assistance of the court bring witnesses to give evidence or to
produce documents. In other words, if they fail to obtaiu the summonses
through court for attendance of witnesses they are at liberty to have the
witnesses brought without the assistance of the Court.
B
It would, thus, be seen that the legislature did not put a total
prohibition on the party to produce the witnesses or the production of the
documents for proof of the respective case. Nonetheless, when they seek
the assistance of the Court, they are enjoined to give reasons as to why they
have not filed the application within the time prescribed under Rule 1 of C
Order 16. It is seen that in the application it was stated by the husband of
the appellant that they were under the bonafide impression that they have
already filed the list of the witnesses alongwith the documents and that the
mistake of non-filing the list was discovered when they were getting ready
for the trial. It is not in dispute that the trial is yet to begin. In these
circumstances, we think that the trial court committed illegality in refusing D
to receive the list for summoning the witnesses for adduction of evidence
by the plaiutiff. The 'appeal is accordingly allowed. The orders of the trial
Court and the High Court are set aside. The list already furnished is a valid
list. The trial court is directed to summon the witnesses for examination on
behalf of the plaiutiff. No costs. E
G.N. Appeal allowed

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