1 2025:CGHC:36758 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 718 of 2025  Jariya Khatun W/o Abdul Majid Aged About 48 Years Caste- Muslim, R/o Village Kewra P.S. And Tahsil Pratappur, District- Surajpur (C.G.) ... Petitioner(s) versus 1. Yashoda Bai W/o Hemkumar, Aged About 35 Years R/o Village Kewra, Caste -Rajwar, P.S. And Tahsil Pratappur, District- Surajpur (C.G.) 2. Devshree W/o Devdutt Aged About 30 Years R/o Village Kewra, Caste - Rajwar, P.S. And Tahsil Pratappur, District- Surajpur (C.G.) 3. Hemkumar S/o Shivlal Rajwade Aged About 40 Years R/o Village Kewra, Caste -Rajwar, P.S. And Tahsil Pratappur, District- Surajpur (C.G.) 4. Devdutt S/o Shivlal Rajwade Aged About 35 Years R/o Village Kewra, Caste -Rajwar, P.S. And Tahsil Pratappur, District- Surajpur (C.G.) 5. Basanti W/o Ramdhani And D/o Shivlal Rajwade Aged About 33 Years R/o Village Kapsara, P.S. And Tahsil Bhatgaon, District- Surajpur (C.G.) 6. Shanti Bai W/o Hakumsay And D/o Shivlal Rajwade Aged About 37 Years R/o Village Dugga, P.S. And Tahsil- Pratappur, District- Surajpur (C.G.) 7. Savitri W/o Vijay Kumar And D/o Shivlal Rajwade Aged About 34 Years R/o Village Lahpatra, P.S. And Tahsil - Lakhanpur, District- Surguja (C.G.) 8. State Of Chhattisgarh Through Collector Surajpur District- Surajpur (C.G.) ... Respondent(s) For Petitioner : Mr. Ashok Kumar Shukla, Advocate For State : Mr. Sanjeev Agrawal, Panel Lawyer 2 Hon’ble Shri Justice Rakesh Mohan Pandey Order On Board 29-07-2025 1) Heard on admission. 2) The petitioner has challenged the order passed by the learned Civil Judge, Senior Division, Pratappur, District–Surajpur (C.G.), in Civil Suit No. 4A/2014 dated 09.05.2025, whereby the application moved by the petitioner under Order 16 Rule 2 of CPC has been rejected on the ground that the proposed witness is not a listed witness and the application has been moved after four years. 3) Learned counsel for the petitioner/plaintiff submits that the plaintiff instituted a civil suit for declaration of title, perpetual injunction and further, for the declaration of the sale-deed dated 18.03.2009 as null and void pertaining to seven plots ad-measuring 6.74 hectares situated at Village – Kewra, Tehsil – Pratappur, District – Surajpur. He further submits that the defendants filed their written statement and thereafter, issues were framed by the learned Trial Court on 22.10.2021, and the plaintiff’s witness was examined on 16.08.2024. He contends that the agreement to sell dated 07.01.2009 was notarized by one Adv. Salma Rizvi; therefore, an application was moved under Order 16 of CPC to examine her as the plaintiff’s witness. He further contends that as the plaintiff’s witnesses are being examined, the learned Trial Court ought to have allowed the application. He prays to set-aside the order impugned and allow the petition. 4) On the other hand, learned State counsel opposes. 5) Heard learned counsel for the parties and perused the documents placed on the record. 3 6) Order 16 Rules 1, 2 and 3 of CPC read 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. (2)A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. (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 part shows sufficient cause for the omission to mention the name of such witness in the said list. (4)Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the [Court in this behalf within five days of presenting the list of witnesses under sub-rule (1).] 1A. Production of witnesses without summons-. subject to the provisions of sub-rule (3) of rule 1, and party to the suit may, without applying for summons under rule 1, bring any witness to give evidence or to produce documents. 2. Expenses of witnesses to be paid into Court on applying for summons. - (1)The party applying for a summons shall, before the summons is granted and within a period to be fixed, pay into Court such a sum of money as appears to the Court to be sufficient to defray the traveling and other expenses of the person summoned in passing to and from the Court in which he is required to attend, and for one day's attendance. (2)Experts-In determining the amount payable under this rule, the Court may, in the case of any person summoned to give evidence as an expert, allow reasonable remuneration for the time occupied both in giving evidence and in performing 4 any work of an expert character necessary for the case. (3)Scale of expenses.-Where the Court is subordinate to High Court, regard shall be had, in fixing the scale of such expenses to a any rules made in that behalf. (4)Expenses to be directly paid to witnesses.- Where the summons is served directly by the party on a witness, the expenses referred to in sub-rule (1) shall be paid to the witness by the party or his agent. 3. Tender of expenses to witness. - The sum so paid into Court shall be tendered to the person summoned, at the time of serving the summons, if it can be served personally 7) The Hon’ble Supreme Court in the matter of Vidhyadhar Versus Manikrao reported in AIR 1999 SC 1441 has opined in relation to these rules that “it is open to the parties to summon the witness or without applying the summons, bring the witness to lead evidence or to produce documents”. It is further held that “Sub-rule (1) of Rule 1 provides that although the name of a witness may not find place in the list of witnesses filed by a party in the Court, it may allow the party to produce a witness though he may not have been summoned through the Court. The leave of the court may be necessary but this by itself will not mean that Rule 1A was in derogation of sub-rule (3) of Rule 1.” Relevant para of the aforementioned judgment is reproduced herein below:- 30. These two Rules read together clearly indicate that it is open to a party to summon the witness to the Court or may, without applying for summons, bring the witnesses to give evidence or to produce documents. Sub- rule (3) of Rule 1 provides that although the name of a witness may not find place in the list of witnesses filed by a party in the Court, it may allow the party to 5 produce a witness though he may not have been summoned through the Court. Rule 1A which was introduced by the Code of Civil Procedure (Amendment) Act, 1976 with effect from 01.02.1977 has placed the matter beyond doubt by providing in clear and specified terms that any party to the suit may bring any witness to give evidence or to produce documents. Since this Rule is subject to the provisions of sub-rule (3) of Rule 1, all that can be contended is that before proceeding to examine any witness who might have been brought by a party for that purpose, the leave of the Court may be necessary but this by itself will not mean that Rule 1A was in derogation of sub-rule (3) of Rule 1. The whole position was explained by this Court in Mange Ram Vs. Brij Mohan, AIR 1983 SC 925: (1983) 4 SCC 36: (1983) 3 SCR 525, in which it was held that sub-rule (3) of Rule 1 and Rule 1A operate in two different areas and cater to two different situations." 8) The Hon’ble Supreme Court in the matter of Sangram Singh Versus Election Tribunal, Kotah reported in AIR 1955 SC 425 held that “it is “procedure”, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against.” 9) The Hon’ble Supreme Court in the matter of Sushil Kumar Sen Versus State of Bihar reported in 1975 (1) SCC 774 has held that “morality of justice at the hands of law troubles a judge’s conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the 6 handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable.” 10)The Hon’ble Supreme Court in the matter of State of Punjab Versus Shamlal Murari reported in 1976 (1) SCC 719 held that “processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.” 11) In the present case, the learned trial Court has rejected the application moved under Order 16 Rule 2 of CPC on the ground that the proposed witness, namely Adv. Salma Rizvi, who notarized the agreement to sell dated 07.01.2009, was not a listed witness. In this respect, the approach of the learned trial Court appears to be erroneous. 12) Taking into consideration the above-discussed facts and the law laid down by the Apex Court in the matters of Vidhyadhar (supra), Sangram Singh (supra), Sushil Kumar Sen (supra) and Shamlal Murari (supra), the order passed by the learned trial Court dated 09.05.2025 whereby the application moved by the plaintiff under Order 16 Rule 2 of CPC was rejected is hereby set-aside and the petition stands allowed. 13)The application moved under Order 16 Rule 2 of CPC stands allowed, and the learned trial Court is directed to issue a summons to the proposed witness to record her evidence. Sd/- (Rakesh Mohan Pandey) JUDGE Ajinkya Digitally signed by AJINKYA PANSARE Date: 2025.07.30 14:14:59 +0530