SMT. SURINDER KAUR & ORS. vs S RAJDEV SINGH & ORS

$~54
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 23rd November, 2023
+ CS(OS) 1806/1999, I.As. 23320/2023, 23321/2023, 23322/2023 & OA 124/2023

SMT. SURINDER KAUR & ORS.
….. Plaintiff
Through: Mr.Riju Raj Jamwal, Advocate for Mr.Himmat Singh Grewal, Advocate.
Versus
S RAJDEV SINGH & ORS. ….. Defendant
Through: Mr.Dilpreet Singh, Advocate for LRs of R-1A.
Mr.Ashim Vachher and Mr.Preet Pal Singh, Advocates for
D-3(b)/appellant in OA 124/2023.
Ms.Ruchika V.Arora, Advocate for R-6A.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
IA 23321/2023 (exemption)
Exemption allowed, subject to just exceptions.
IA 23322/2023 (delay in filing appeal)
In view of the reasons stated in the application, the delay of 2 days in filing the original appeal is condoned. Application is disposed of.
OA 124/2023 in CS(OS) 1806/1999

1. The Original Appeal under Chapter-II Rule 5 of the Delhi High Court (Original Side) Rules, 2018 has been preferred by the appellant [defendant No. 3(b) in Suit] against the Order dated 05.10.2023 vide which, the learned Joint Registrar (Judicial) has allowed the application i.e. IA 16439/2023 filed by the defendant No. 3(b) Ms.Isha Kaur under Order XVI Rule 1A CPC permitting Sh.Ravinder Singh, witness of defendant No. 3(b) to be examined as an independent witness after the examination of defendant No. 3 Ravinder Singh Akoi.
2. It is submitted that the predecessor of defendant No. 1, had built the Imperial Hotel on a lease hold land from the L&DO at 124, Janpath, New Delhi. Sh. S.B.Ranjit Singh, the original plaintiff and defendants started a Partnership Firm in the year 1968 to operate the Hotel Imperial. S.B.Ranjit Singh as landlord, entered into a lease with the said partnership firm Ms.Rajdev Singh and Company, as tenants. The Partnership came to an end in 1972 and it was then reconstituted amongst the family of S.B.Ranjit Singh in 1972. The said Partnership was again reconstituted in 1979 for a period of 20 years, however, S.B.Ranjit Singh due to old age opted out of this Partnership but the Partnership Firm had continued to run the Hotel Imperial.
3. S.B.Ranjit Singh, father of the defendant No. 1 passed away on 20.12.1984 and in terms of his Will dated 09.07.1979 and codicil dated 28.06.1984, he bequeathed the Hotel Imperial to defendant No. 1 whose name was mutated as the lessee in the L&DO, New Delhi. It is averred that vide letter dated 05.04.1999, the defendant No. 2 acting on behalf of Sardar Rajdev Singh, informed the other partners that they did not want to reconstitute the Partnership Firm and it shall be wounded up with effect from 30.06.1999 and that all the partners should participate in the finalization of the accounts. Dispute arose between the parties and the present suit was filed for Declaration, Permanent Injunction, Mandatory Injunction, Specific Performance, Rendition of Accounts and Mesne Profits. Another suit being CS(OS)1306/1999 has been filed by the defendant No. 4, partner of the erstwhile Partnership Firm Rajdev Singh and Company. Defendant No. 4 subsequently filed another civil suit bearing No. CS(OS) 1344/2002 against the defendants. The instant suit was tagged with CS(OS) 1306/1999 and was set for trial whereas CS (OS) 1344/2002 was separated for trial. The issues were framed on 04.05.2005. The Local Commissioner was appointed for recording of evidence, who has partly recorded the evidence of the plaintiff and the defendant No. 1 Sh.Hardev Singh. The matter was listed before the learned Joint Registrar for recording of remaining evidence, however vide Order dated 20.12.2021, DW1 Hardev Singh whose evidence was being recorded, withdrew his evidence as he was unable to depose further due to his medical condition. The evidence of defendant No. 3 was to be recorded subsequently, however, due to his unavailability, the matter was adjourned for several months. However, defendant No. 3 passed away on 13.01.2023 and his legal heirs defendant No. 3 (a) to (d) were consequently impleaded. Vide Order dated 15.05.2023, this Court directed the defendant Nos. 3(a) to (d) to file their evidence by way of affidavits which they failed to do and the cost was imposed on 19.07.2023. Thereafter, defendant No. 3(b) filed evidence by way of affidavit of himself along with another witness Sh.Ravinder Singh.
4. Defendant No. 3(b) filed an application being IA 16439/2023 under Order XVI Rule 1A read with Order 18 Rule 3A CPC seeking directions with respect to the examination of the witness. The plaintiff filed its reply contesting the said application. However, the said application was allowed partly by the learned Joint Registrar by allowing Sh.Ravinder Singh to be examined as a witness but declined the prayer of defendant No. 3(b) to first examine Sh.Ravinder Singh, in terms of Order 18 Rule 3A CPC.
5. Aggrieved by the Order permitting Sh.Ravinder Singh to be examined as a witness, the present Original Appeal has been preferred by the appellant/defendant No. 3(b) with a prayer that the impugned Order dated 05.10.2023 be modified and the examination of Sh.Ravinder Singh as a witness be disallowed.
6. The basic grievance of the learned counsel for the appellant/plaintiff to the impugned Order is that the present suit was filed way back in the year 1999 and the issues were framed in the suit on 04.05.2005. The list of witnesses were required to be filed by both the parties within 15 days of framing of Issues but despite so many years having elapsed, the name of Sh.Ravinder Singh as a witness of defendant No. 3(b) never featured in the list of witnesses. It was claimed that defendant No. 3(b) cannot be allowed to spring surprises on the plaintiff specially when the existence and the relevance of Sh. Ravinder Singh as Finance Controller of the Hotel Imperial was known to defendant No. 3(b) since at the time of institution of the Suit. Sh. Ravinder Singh has been proposed to be examined as a witness by defendant No. 3(b) by way of his application bearing No. IA 16439/2023 dated 11.08.2023 for the first time. It is submitted that in terms of Order XVI Rule 1A CPC, the defendants should have included the name of Sh.Ravinder Singh in the list of witnesses filed after the framing of issues. Without there being any application, Sh.Ravinder Singh cannot be allowed to be examined as a witness. Order XVI Rule 1A CPC is subject to the provisions of Order XVI Rule 1(3) and without seeking the permission of the Court, Sh.Ravinder Singh cannot be permitted to be examined as a witness.
7. Learned counsel for the plaintiff has contended that Rule 1A is subject to Sub-Rule (3) of Rule 1 and therefore, unless sufficient cause for omission to mention the name of the witness in the List of witnesses is given, the witness cannot be allowed to be examined by resorting to Rule 1A of Order XVI CPC. It is further contended that since the defendant No. 3 has not been able to give any explanation for the delay in proposing the name of Sh.Ravinder Singh as a witness to be examined on behalf of the defendant No. 3(b), he cannot be allowed to examine him as per Sub-Rule (3) of Rule 1 of Order XVI CPC.
8. Learned counsel on behalf of the defendant No. 3(b) has countered this argument and has asserted that there is no such requirement of giving an explanation for non-mentioning of the name of the witness in the list of witnesses that was filed originally as under Rule 1A the defendant No. 3(b) is entitled to examine any witness if found to be material and not frivolous.
9. Learned counsel on behalf of the appellant/defendant No. 3(b) has argued that Order XVI Rule 1A CPC clearly provides for eventuality where a witness though not mentioned in the list of witnesses, can be examined by the concerned party. Therefore, there is no infirmity in the impugned Order and the Original Appeal is liable to be dismissed.
10. Submissions heard.
11. The basic issue raised by way of the present Original Appeal is whether a person who has not been cited as a witness by a party can be produced subsequently as a witness by the said party. The Order XVI CPC deals with summoning of the witness. The relevant portion of Order XVI reads as under:
“[1. List of witnesses and summons to witnesses-(1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such person for their attendance in Court.
xxx xxx xxx
(3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.
xxx xxx xxx
[1A. Production of witnesses without summons.-Subject to the provisions of sub-rule (3) of rule 1, any party to the suit may, without applying for summons under rule 1, bring any witness to give evidence or to produce documents.]”

12. Rule (1) of Order XVI CPC casts an obligation on every party to present a list of witnesses who may be proposed to be examined in evidence or to produce documents and requires the summons to be issued to such persons for their attendance in the Court.
13. Sub-Rule (2) of Rule (1) requires that the parties seeking assistance of Court for issuance of summons for procuring the attendance of the witnesses, shall make an application stating therein the purpose and the evidence for which the witness is proposed to be summoned.
14. Sub-Rule (3) of Rule (1) confers a discretion on the Court to permit a party to summon through Court or otherwise any witness other than those whose name appeared in the List submitted under Sub-Rule (1), if such parties are able to show sufficient cause for omission in mentioning their names in the list of witnesses.
15. Rule 1A of Order XVI CPC was inserted by CPC (Amendment) Act, 1956 in its amended form and was effective from 01.02.1977. It enables the party to bring any witness to give evidence or to produce the documents irrespective of the name being mentioned in the list of witnesses without applying for summons under Rule (1) of Order XVI CPC. It reads as under:-
“[1. List of witnesses and summons to witnesses-(1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such person for their attendance in Court.

16. In the case of Mange Ram Vs. Brij Mohan and Others (1983) 4 SCC 36, the Apex Court considered the inter-play between the various Sub-Rules of Order XVI CPC. It was observed that when these provisions are read jointly and analyzed properly, it reflects that the obligation to supply the List as well as the gist of the evidence of each witness whose name is entered in the List, has to be carried out in respect of those witnesses for procuring whose attendance the party needs the assistance of the Court.
17. It was further observed that the issue of summons by the Court has its own consequences. If the summons is served and the person served fails to comply with the same, certain consequences in law ensue as provided in Rule 10 of Order XVI CPC. In view of these legal consequences ensuing from the issue of summons, it is evident that Rule (1) clearly envisages filing of List of witnesses only in respect of those whose presence is desired by the party through the summons of the Court.
18. However, there remains an area where if the party does not desire the assistance of the Court for procuring the presence of a witness and such party can produce the witness on its own on the date of hearing, the Court cannot decline to examine such witness. The only qualification being that the Court may decline to examine such witness produced by the party on its own if it is of the opinion that the evidence of such witness/witnesses is not material for the decision of the suit or that the party tendering such witness or the witnesses is doing so, on frivolous grounds or with a view to delay the proceedings.
19. Furthermore, it was observed that mere omission of the name in the List as envisaged under Sub-Rule (1) of Rule 1 of Order XVI CPC would not disentitle a party to examine such witness under Rule 1A of Order XVI CPC provided that the witness is produced without the assistance of the Court. If a contrary view is taken and it is held that the witness can be allowed to be examined under Rule 1A of Order XVI CPC only after the name is included in the List, then this Sub-Rule 1A would be rendered redundant.
20. Rule 1A gives a clear legislative exposition in this regard and the marginal note of Rule 1A which reads as ‘Production of witnesses without summons’, clearly negatives the suggestion that the witness cannot be permitted to be examined unless its name is mentioned in the List of witnesses. It was observed in Mange Ram (supra) that if it was implicit in Rule 1A that it enables the party to examine only those witnesses whose names are mentioned in the List filed under Sub-Rule (1) of Rule 1 whom the party would produce before the Court without the assistance of the Court, it was not necessary to provide in Rule 1A that the party may bring any witness to give evidence or to produce documents without applying for summons under Rule 1. In this regard it was concluded as under:
“Rule 1A of order XVI clearly brings to surface the two situations in which the two rules operate. Where the party wants the assistance of the Court to procure presence of a witness on being summoned through the Court, it is obligatory on the party to file the list with the gist of evidence of witness in the Court as directed by sub-rule (1) of Rule 1 and make an application as provided by sub-rule (2) of Rule 1. But where the party would be in a position to produce its witnesses without the assistance of the Court, it can do so under Rule 1A of order XVI irrespective of the fact whether the name of such witness is mentioned in the list or not”.

21. Pertinently, the scheme of Order XVI CPC reflects that after the issues are framed, the parties are required to adduce their respective oral and documentary evidence which is reflected in the list of witnesses giving not only the name of each witness but also the gist of evidence sought to be adduced by them within the time prescribed by Sub-Rule (1). This advance List is necessary because summoning of the witness by the Court is a time consuming process and to avoid the unnecessary delay, an obligation is cast on the party to file a List of Witnesses whose presence the party desired to procure with the assistance of the Court. The judgment in the case of Mange Ram (supra) has been followed in the case Kapil Gupta vs Punjab National Bank, 2014 SCC OnLine Del 280.
22. As explained in the case of Mange Ram (supra) there is no inner contradiction between Sub-Rule (1) of Rule 1 and Rule 1A of Order XVI CPC. Ordinarily the Court would not extend its assistance for procuring the attendance of a witness whose name is not shown in the list. Sub-Rule (3) of Rule 1 of Order XVI CPC confers a wider jurisdiction on the Court to cater to a situation where the party has failed to name the witness in the list and yet the party is unable to produce him or her on his own under Rule 1A. In such a situation, the party of necessity has to seek the assistance of the Court under Sub-Rule (3) to procure the presence of the witness and the Court may if it is satisfied that the party has sufficient cause for the omission to mention the name of such witness in the list filed under Sub-Rule (1) of Rule 1, extend its assistance for procuring the presence of such a witness by issuing a summons through the Court or otherwise. Sub-Rule (3) of Rule 1 and Rule 1A thus operate in two different areas and cater to two different situations.
23. In view of the discussion, it is held that defendant No. 3(b) is at liberty to examine Sh.Ravinder Singh even though his name does not feature in the List of Witnesses filed by him subject to the condition that the said witness shall be produced by the defendant No. 3(b) on his own.
24. The Original Appeal is accordingly, disposed of with the above qualification.

(NEENA BANSAL KRISHNA)
JUDGE
NOVEMBER 23, 2023
akb

CS(OS) 1806/1999 Page 10 of 10