Find a Lawyer

Civil Revision No. 263 of 1979, decided on 26th March 1979.

O. XVI, r. 1(1)-Evidence, closing of-Witness--Petitioner not filing list of witnesses due to ailment---Filing unattested affidavit in support of contention-Petitioner having made positive assertion of illness and default in filing of list not wilful-Court to verify correctness or otherwise of such assertion-Adoption of technical course, for closing of evidence, held, not proper-Provisions of order not intended to trap a litigant-Order set aside in circumstances. [Evidence-Witness].

-- S. 153 read with S. 151-Petitioner filing unattested affidavit inadvertently in Court-Affidavit after its submission in Court becom ing part of record and proceedings of Court-Inadvertent omission or error qua any proceedings in Court, held, could be corrected under S. 153 read with S. 151.

Ch. Qamar-ud-Din Meo for Appellant.

Respondents : Ex parte.

Date of hearing : 26th March 1979.

This civil revision petition has been filed to call in question an order passed by a learned Civil Judge; whereby the petitioner's application for examination of his witnesses was dismissed on the ground that the list of witnesses was not submitted within the period as prescribed in Order XVI, rule 1, C. P. C. The two points mentioned in the impugned order for refusing the request of the petitioner are: (i) that the affidavit submitted in support of his application was not duly attested by a Notary Public or an Oath Commissioner; and (ii) that the petitioner was bound to submit the list of his witnesses within seven days of the framing of the issues, which was not submitted by him within time.

2. Learned counsel has filed copies of the application and the affidavit submitted before the learned trial Judge. It is specifically mentioned in the application that he was suffering from ailment of eyes, therefore, he could not do the needful in connection with the submission of the list. It was also submitted in the application that the default was not wilful. Although the copy of the affidavit shows that the petitioner/deponent was identified by somebody-presumably for the purpose of attestation of the affidavit, it correct that there is no endorsement of attestation. Be that as it may, positive assertion having been made in the application that the petitioner was not able to do the needful on account of illness and further that the default was not wilful the learned trial Judge should not have adopted a technical course. The provisions contained in Order XVI, rule (1) Dare not petitioner states that he was present in Court on the day when the impugned order was passed. Even to day his eyes visibly looked sore. The learned Judge could have verified the correctness or otherwise of his assertion made in the application by asking the petitioner few questions about the illness as has been done in this Court. After hearing the petitioner and observing the condition of his eyes it cannot be said that he had made a false statement in his application. This supposition gets support from a certificate issued by a professor of a Medical College showing that the petitioner was under treatment for nearly two years. If the learned Judge wanted not to accept the assertion made by the petitioner in the application on the ground that the affidavit was not properly attested, the petitioner could have been afforded opportunity to get the formality completed. The affidavit, after its submission in Court, had become part of the record and proceedings of the Court and any inadvertent' omission or error qua any proceeding in Court, could be corrected under/ s section 153 read with section 151, C. P. C. The impugned order is not sustainable. The same accordingly is set aside.

3. In view of the circumstances noted above, it is held that the petitioner has shown good cause for not submitting the list earlier. His application dated 25-10-1978 for submission of list and examination of the witnesses is allowed. There shall be no order as to costs.

Petition accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.