# t' - I / ' LALITHA J. RAJ v. AITHAPPA RAJ

- **Citation:** [1995] 3 S.C.R. 861
- **Court:** Supreme Court of India
- **Decided:** 1995-04-27
- **Case number:** Civil Appeal No. 5699 of 1995
- **Bench:** K. Ramaswamy, B.L. Hansaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/t-i-lalitha-j-raj-v-aithappa-raj-13009
- **Pages:** 3

## Headnote

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 application 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 application 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
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]
B
c
D
E
F
G
H

## Text

--,t'
- I
/
'
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 application 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 application 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
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]
B
c
D
E
F
G
H
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5699 of
1995.
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 :
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
for adduction of evidences to prove her case. In the affidavit filed by the
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
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
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
added rule l(A) to see that the undue delay should not be caused iu the
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
they propose to call either to give evidence or to produce documents and
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• . 1
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.
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
B
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