Smt. Yasodamma and Another vs Inderchand Vimalchand Jain and Another

Jagannatha Shetty, J.—This revision petition by defendants 2 and 3 is from an order made on I.A. No. VI filed by them before the trial Court in O.S. 1998/68 seeking permission of the Court to summon two witnesses on their behalf. The suit against them was on a pronote. One of the issues in the suit was whether the pronote was vitiated by fraud or misrepresentation. The defendants probably began the suit, and closed their evidence on 6-8-1971. On behalf of the plaintiff-firm, evidence was closed on 20-1-1973. The case was posted for arguments on 27-1-1973 on which date the petitioners made on application under Order 16, Rule 1 read with Sec. 151, CPC for summoning two more witnesses on their behalf. The reason given in their affidavit in support of the application, was that they expected the plaintiff to examine certain witnesses, but it did not and therefore the need arose for summoning the attestors of the suit pronote viz.. H.M. Srinivasia and Anusuya. The trial Court rejected the application stating that defendants should have filed an application for re-opening the case and cannot seek permission for adducing further evidence when once the evidence is completed by both the parties.

It seems to me that the trial Court has misunderstood the scope of Order 16, Rule 1. The said Rule provides that at any time, after the suit is instituted, a party is entitled as of right to take summonses to witnesses. The Court, unless it holds that the application of the party lacks bona fides cannot refuse to issue summonses. The salutary principle behind the said rule is that Court ordinarily should not shut out relevant documents and deny opportunity to any party to summon witnesses. The application of any party cannot be rejected merely because it was presented at a late stage of the proceedings. If there is good reason for not taking summonses to witnesses earlier, the Court should not refuse permission even if the case is already set down for arguments. My view finds support from the decision of this Court in Huddappa v. Gurikalla Thimmaiah, 1970 (2) Mys LJ 348.

In the result, I allow the revision petition, set aside, the order impugned and direct the learned Munsiff to permit the defendants to examine the two witnesses who are the attestors to the suit pronote. No costs.