(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 persons 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 party 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 in this behalf within five days of presenting the list of witnesses under sub-rule (1)]. (Order XVI, Rule 1).
1-A. 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.] (Order XVI, Rule 1-A).
(1) Expenses of witness to be paid into Court on applying for summons:
The party applying for a summons shall, before the summons is granted and within a period to be fixed [which shall not be later than seven days from the date of making application under sub-rule (4) of Rule 1,] pay into Court such sum of money as appears to the Court to be sufficient to defray the travelling 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.
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 a High Court, regard shall be had, in fixing the scale of such expenses, to 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. (Order XVI, Rule 2).
Order XVI, Rules 1 and 1(A) adumbrate that the witnesses at the trial court are to be produced for examination by the parties by their filing the list, and omission thereof prohibits them to avail the assistance of the court to secure their assistance to give evidence or to produce documents on their behalf. Order XVI, Rule 1(A) has been added to see that the undue delay should not be caused in the trial of the suit by filing list of witnesses or the documents at belated stage.
It envisages that on or before the date fixed by the court for settlement of issues and later than 15 days after the date on which issues were settled, the parties are to file the list of witnesses. On their failure to do the same, Rule 1(A) says that they may without assistance of the court bring witnesses to give evidence or to produce documents.
Thus if they fail to obtain the summons through court for attendance of witnesses they are at liberty to have witnesses brought without assistance of the court. The legislature did not put a total prohibition on the party to produce the witnesses or the production of the documents for the proof the respective case. Nonetheless, when they seek the assistance of the court, they are enjoined to give reasons as to why they have not filed the application within the tune prescribed under Rule 1, Order XVI.
Plaintiff failed to file list of witnesses within prescribed time. The plaintiff filed an application enclosing the list of witnesses to issue summons to them for adducing of evidence they prove the case. In the application supported by affidavit it was stated that they were under the bona fide impression that they already filed the list of witnesses along with the documents and that the mistake of non-filing the list was discovered when they were getting ready for the trial.
It was stated that the failure to file the list of witnesses was not intentional. The trial court dismissed the application holding that there was no proper explanation for the delay in filing the list of witnesses. On revision the High Court declined to interfere with the order. The Supreme Court in special leave petition found that the trial was yet to begin.
In the circumstances it was held that the trial court committed illegality in refusing to receive the list for summoning the, witnesses for adducing of evidence by the plaintiff. The orders of trial court and High Court were set aside. The trial court was directed to summon the witnesses for examination on behalf of the plaintiff.
In view of this, even though the name of defendant No. 2 was not mentioned in the list of witnesses furnished by the plaintiff, he was properly examined as a witness and his testimony was not open to any criticism on the ground that he was produced as a witness without being summoned through the court and without his name being mentioned in the list of witnesses.
Scheme for Summoning and Attendance of Witnesses—Order XVI, Rules 1, 1-A, and 6:
The underlying scheme under Order XVI, Rules 1 and 1-A, C.P.C. is that after the court frames issues and serves notice on the parties enabling them to determine what evidence, oral and documentary, they would like to lead, a party can act either in accordance with Rule 1 or Rule 2. 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 the 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 1-A of Order XVI irrespective of the fact whether the name of such witness is mentioned in the list or not and the court has no jurisdiction to decline to examine such witnesses.
Sub-rule (3) of Rule 1 and Rule 1-A operate in two different areas and cater to two different situations, and there is no inner conflict between the two. Sub-rule (3) of Rule 1 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 1-A 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.
A person may also be summoned to produce a document without being summoned to give evidence and that person will be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same. (Order XVI, Rule 6).