Can you ask the court to summon someone as witness without filing a formal list of witnesses?

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Shubham Budhiraja[1]

 

Mr. A filed suit against Mr. B. After framing of issues, Mr. A filed the list of witnesses and examined himself as witness. Mr. B filed no list of witnesses but the trial court allowed Mr. B to be examined himself as witness. After examination of witnesses, Mr. B filed an application under Order 16 Rule 1(3) to examine 12 witnesses. The trial court dismissed the aforesaid application for reason that witnesses sought to be re-called were not part of list of witnesses filed by Mr. B and there are no proper reasons to summon them. The Hon’ble Delhi High set-aside the trial court order because: (i) that was not a request to recall the witnesses because Mr. B never filed any list of witness at first instance, (ii) allowing Mr. B to lead himself as witness without filling the list of witnesses was erroneous. The Hon’ble Delhi High Court further held that the Application under Order 16 Rule 1(3) was not maintainable because it applies only when a list of witnesses is filed under Order 16 Rule 1(1) which Mr. B failed to do so. However, it agreed that the reasons for summoning the witnesses were valid. Hence, Hon’ble Delhi High Court directed to Ld. trial court to decide the application afresh.[2]

 

(i)                    The protocol envisaged by the CPC, with respect to summoning and attendance of witnesses, as contained in Order XVI, requires both sides to file their respective list of witnesses, not later than 15 days after settlement of issues, as contained in Order XVI Rule 1.

 

(ii)                   Rule 1(2) of Order XVI requires the party, desirous of obtaining summons for the attendance of any person, to file an appropriate application stating the reason for which the summons are sought.

 

 

(iii)                 Order XVI Rule 1(3) envisages a request, by a party, to call a witness other than the one whose name figures in the list of witnesses filed under Order XVI Rule 1(1).

 

(iv)                 Where, therefore, no list of witnesses is filed under Order XVI Rule 1(1), Order XVI Rule 1(3) would have no application.

 

 


[1] Advocate, Delhi High Court [LLB, ACS, BCOM(H)], Budhirajalawchambers@gmail.com , M:+91-9654055315

[2] Neutral Citation Number : 2022/DHC/005104

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