JUDGMENT Tarun Agarwala, J.
1. Heard Sri Rajeev Misra, the earned Counsel for the petitioners and Sri L.K. Pandey, the earned Counsel for the respondents.
2. After the framing of the issues, the parties filed their application submitting the list of witnesses. The petitioners, who are the defendants also submitted a list of witnesses under Order XVI, Rule 1, C.P.C. and prayed that the summons be issued to them to secure their attendance. Before any of the witnesses of the defendants could be summoned, the defendant-petitioners moved an application dated 9.8.2004 praying that the defendant does not wish to examine any of the witnesses in the list of witnesses supplied by them and now wishes to examine only Sri Om Prakash Srivastava. The petitioners further prayed that the said witnesses could be summoned at the expenses of the defendant under Order XVI, Rule 1A, C.P.C and that the summons are not required to be issued by the Court. The said application was rejected by the trial court on the ground that the reasons for summoning the witness has not been stated in the application. The defendant filed a revision which was also dismissed on the same ground. Consequently, the present writ petition.
3. The earned Counsel for the petitioner submitted that no reasons are required to be given for producing a witness without the summons of the Court under Order XVI, Rule 1A, C.P.C. and that a witness could be produced without applying for summons under Order XVI, Rule 1, C.P.C. The earned Counsel for the petitioners further submitted that the witness, was in fact, a substitute of the names given by the defendants in the list supplied under Order XVI, Rule 1, C.P.C. In support of his submission the earned Counsel for the petitioners relied upon a decision in the case of Mange Ram v. Brij Mohan and Ors. , wherein the Supreme Court explained the provisions of Order XVI, Rule 1, C.P.C. and Order XVI, Rule 1A, C.P.C. and held that Sub-rule (3) of Rule 1 and Rule 1A of Order XVI operated in two different areas and catered to two different situations. The Court observed:
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 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 1A of Order XVI irrespective of the fact whether the name of such witness is mentioned in the list or not.
The Supreme Court further observed:
It was, however, contended that Rule 1A is subject to Sub-rule (3) of Rule 1 and therefore, the Court must ascertain how far Sub-rule (3) would carve out an exception to the enabling provision contained in Rule 1A. 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 necessarily 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 operating two different areas and cater to two different situations.
4. In Vidhyadhar v. Manikrao and Anr. , the Supreme Court while interpreting the provisions of Order XVI, Rules 1 and 1A, C.P.C. held:
These two rules read together clearly indicate that it is open to a party to summon the witnesses to the Court or may, without applying for summons, bring the witnesses 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 1.2.1977 has placed the matter beyond doubt by providing in clear and specific terms that any party to the suit may bring any witless 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 v. Brij Mohan 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.
5. In the light of the aforesaid, it is clear that a witness could be produced by a party at any stage without applying for the summons from the Court and therefore the embargo under Order XVI, Rule 1(1) namely, that the list of witnesses shall not be supplied not later than fifteen days after the settlement of the issues does not mean that no new witness could be examined after the submission of the list. A new witness can be produced on a summons of the Court or otherwise as contemplated under Sub-rule (3) of Rule 16. The only requirement is, that the application must contain reasons for producing the witness. Similarly, the provisions of Order XVI, Rule 1A of the Code of Civil Procedure is subject to the provisions of Rule (3) 3 of Order XVI and therefore, even if a witness is produced by the party without the summons of the Court at a later stage, nonetheless, sufficient cause has to be shown by a party producing the said witness.
6. It is well settled that a provision is mandatory if there is a penal consequence flowing from its non-compliance. Even though the provision is couched in a negative manner, the provision of Order XVI, Rule 1(1) contains merely a direction. In the opinion of the Court, the provisions are only directory in nature and is not mandatory.
7. In view of the aforesaid, there is no error in the order passed by the court below. The writ petition fails and is dismissed. However, since I have held that the provisions of Order XVI, Rule 1(1) is not mandatory but directory in nature, it would be open for the defendant petitioner to move a fresh application for the examination of his witness after showing cause as contemplated under Order XVI, Rule 2. If such an application is filed, the Court will accordingly decide the application.