1 2025:CGHC:20561 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 603 of 2023 1 - Sunita Agrawal W/o Rajesh Agrawal, Aged About 48 Years R/o Beside Shyam Rice Mill, Village Sangi Tarai, Post Chhatamuda, Tahsil And District Raigarh (Chhattisgarh) ... Petitioner(s) versus 1 - Jindal Steel And Power Limited Raigarh Through Manager, Jindal Steel And Power Limited, Patarapali, Tahsil And District Raigarh (Chhattisgarh) 2 - State Of Chhattisgarh Through The Collector, District Raigarh (Chhattisgarh) ---- Respondents For Petitioner/Plaintiff : Mr. Hari Agrawal, Advocate For Respondents No.1 : Mr. A.K. Samantray, Advocate For respondent No.2 : Mr. Pramod Shrivastava, Dy. G.A. Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 05.05.2025 1. The petitioner/plaintiff has challenged the order dated 15.03.2023 passed by the Court of First Additional Judge to the First Civil Judge Class-II, Raigarh in Civil Suit No.192-A/2021, whereby an application moved under Order 16 Rule 1(3) of CPC by the petitioner has been rejected. REKHA SINGH Digitally signed by REKHA SINGH -2- 2. Mr. Agrawal, learned counsel appearing for the petitioner/plaintiff would submit that the petitioner filed a suit for declaration to the effect that the plaintiff has the right to conduct her business over the suit property and also sought the relief of permanent prohibitory injunction. It is pleaded that she is the owner of the suit property situated over Survey No.1022 admeasuring 0.672 hectare at Village Loharsingh, Tehsil Pusour, District Raigarh. It is also pleaded that the plaintiff had paid the diversion fee of Rs.1,34,400/- and the annual rent of Rs.3,579/. Mr. Agrawal would contend that the defendants filed their written statement and denied the plaint averments. The learned Trial Court framed issues on 28.10.2022. He would further contend that on 13.02.2023, the petitioner moved an application under Order 16 Rule 1(3) of CPC for the issuance of a summons for the presence of six official witnesses, namely, A.K. Tondon, Patwari, Parmeshwar Nayak, Vedram Denjare, Bharat, Chetram Denjare and Lochan Das Mahant. Mr. Agrawal would also contend that the application was moved to summon those government employees to prove the veracity of the revenue documents. He would argue that the learned Trial Court rejected the application without assigning sufficient reasons. He would pray to allow the said application. He would further argue that the learned Trial Court rejected the application on the ground that the names of those witnesses were not mentioned in the list of witnesses. In support of his contentions, he placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Mange 3 Ram Vs. Brijmohan and others, reported in 1983 (4) SCC 36, where it is held that sub-rule (3) of Rule 1 of Order XVI 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. Relevant para 10 is reproduced herein below:- “10………….There is no inner contradiction between sub- rule (1) of Rule 1 and Rule 1A of Order XVI. Sub-rule (3) of Rule 1 of Order XVI 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 and 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, the Court may still extend its assistance for procuring the presence of such a witness by issuing a summons through the Court or otherwise which ordinarily the court would not extend for procuring the attendance of a witness whose name is not shown in the list. Therefore, sub-rule (3) of Rule 1 and Rule 1A operate in two different areas and cater to two different situations.” 3. On the other hand, learned counsel appearing for respondent No.1 would oppose the submissions made by Mr. Agrawal. He would submit that the petitioner failed to assign a reason to summon those witnesses. He would further submit that the petitioner failed to name those witnesses in the list submitted before the learned Trial Court, therefore, the application was rightly rejected. 4. Learned Panel Lawyer appearing for the State/respondent No.2 would support the order passed by the learned Trial Court. 5. Heard the learned counsel appearing for the parties and perused -4- the documents placed on the record. 6. Order 16 Rules 1 and 2 of CPC 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. (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 5 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 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. 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 -6- 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 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. 7 The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the 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 rejected the application moved under Order 16 Rule 1(3) of CPC on the ground that the petitioner failed to name the witnesses in the list of witnesses, thus, 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 15.03.2023 whereby the application moved by the plaintiff under Order 16 Rule 1(3) of CPC was rejected is hereby set-aside and the petition stands allowed. 13. The application moved under Order 16 Rule 1(3) of CPC stands allowed and the learned trial Court is directed to issue summons -8- to the proposed witnesses to record their evidence. The learned Trial Court shall not grant unnecessary adjournments to either party. Sd/- (Rakesh Mohan Pandey) Judge Rekha