In CR-1724-2020-PUNJ HC- Though period of 15 days is prescribed under O16 R1(1) CPC for providing list of witnesses to Court, but once court has power under R1(3) to permit any party to summon any witness other than witnesses named in above list, procedure prescribed under R1(1) has to be treated as directory: P&H HC
Justice Harkesh Manuja [01-09-2022]

Read Order: Gurjit Singh v. Kartar Singh and Another

Monika Rahar

Chandigarh,  September 5, 2022: The Punjab and Haryana High Court has held that though a period of 15 days was prescribed under Order 16 Rule 1 (1) of CPC for the purpose of providing list of witnesses to the Court, but once the court is given power under sub-Rule 3 of Rule 1 to permit any party to summon any witness other than the witnesses named in the list referred to in sub-rule 1, the procedure prescribed under Order 16 Rule 1 (1) has to be treated as directory, particularly, when it nowhere prescribes consequences for its default. 

The Bench of Justice Harkesh Manuja said, “Further, once a procedural discretion vests with the court, unless any party acts in a gross negligent manner, discretion needs to be exercised in favour of the parties rather than to scuttle their rights.”

Petitioner (plaintiff) moved an application for summoning of witnesses through the process of court but the trial court via the impugned order, dismissed the said application by recording that the issues in the suit were framed on May 28, 2019 and since, the list of witnesses along with process fee was not filed within the prescribed period of 15 days, the petitioner/plaintiff was not entitled for court assistance for the purpose of summoning of his witnesses.

The counsel for the petitioner referred to Order 16 Rule 1 of the CPC to contend that the same being procedural in nature has to be considered as directory and not mandatory. 

The issues in the present case were framed on My 28, 2019 and the application for seeking court assistance for the purpose of summoning of witnesses was moved on September 05, 2019. 

The Court found merit in the contention of the counsel for the petitioner and observed that the application moved by the petitoner for seeking summoning of witnesses cold not be treated to be highly belated. 

Regarding the time limit prescribed for this purpose in the CPC, the Court opined that though, a period of 15 days was prescribed under Order 16 Rule 1 of CPC for the purpose of providing list of witnesses to the Court, but, once the court has been given power under sub-Rule 3 of Rule 16 to permit any party to summon any witness other than the witnesses named in the list referred to in sub-rule 1, the procedure prescribed under sub- Rule 1 of Order 16 has to be treated as directory, particularly, when it no where prescribes consequences for its default. 

“Further, once a procedural discretion vests with the court, unless any party acts in a gross negligent manner, discretion needs to be exercised in favour of the parties rather than to scuttle their rights”, asserted the Bench. 

In view of the reasoning recorded above, the impugned order was hereby set aside and keeping in view the fact that the suit before the trial court was pending for the purpose of recording of petitioner-plaintiff evidence, the Court directed the trial court to entertain the application filed on behalf of the petitioner/plaintiff and to provide court assistance for the purpose of summoning of witnesses mentioned therein, on payment of process fee and diet money in accordance with law.