Heard Sri Ramesh Kumar Ojha, learned counsel for the petitioner and Sri Jata Shankar Pandey, learned counsel for the respondent.
This petition has been filed under Section 227 of Constitution of India praying for setting aside the judgement and order dated 18.01.2021 passed by Additional District Judge, Court no.15, Agra in S.C.C. Suit no. 13 of 2018 ( Smt. Santi Devi Vs. Sri Bhagwan Singh).
The brief facts of the case are that the plaintiff-respondent, Smt. Santi Devi, has instituted a SCC Suit No.13 of 2018 against the defendant-petitioner, Sri Bagwan Singh, for a decree of ejectment, recovery of arrears of rent, etc., which is pending.
The plaintiff-respondent had filed list of witnesses before the trial court wherein name of three witness were mentioned, namely, Jagvendra Singh, Ramesh Chandra and Ram Niwas. PW-1 and PW-II have been examined before the trial court and later plaintiff-respondent has filed an application praying that her son, Gagendra Pratap Singh and plaintiff herself may be permitted to appear as witnesses in the suit, since they are not named in the list of witnesses. The defendant-petitioner filed his objection before the court below stating that witnesses sought to be produced are not in accordance with law.
The Judge, Small Cause Court has found that the plaintiff-respondent is a 85 years old rustic woman and the other witnesses sought to be produced by her is Gajendra Pratap Singh, who is her son. She was not aware that they are necessary witnesses.
It was objected before the court below by the defendant-petitioner that the witnesses sought to be produced by the plaintiff-respondent are in contravention to Order XVI, Rule 1(3) of C.P.C. It has further been submitted that the reason given by the Court below that the plaintiff is rustic woman is not in accordance with law. The witnesses sought to be produced have directly been produced as additional witnesses which is not permissible in law.
Learned counsel for the plaintiff-respondents has relied upon the judgemnet of the Apex Court in the case of Ashok Sharma Vs. Ram Adhar Sharma, (2009)11 SCC 47, wherein the Apex Court has held that under Order XVI Rule 1-A any party to the suit may, without applying for summons under Rule 1, bring any witness to give evidence or to produce documents. The Apex Court has held in this case that since Rule 1-A is subject to the provisions of sub-Rule 3 of Rule 1 of Order XVI, CPC only the leave of the court is necessary for producing a witness not named in the list.
After hearing the rival contentions this court finds that the trial court has rightly permitted the son of the plaintiff-respondent, Gajendra Singh, and herself to appear in the witness box and give their evidence when they were not named in the list of witnesses. From the record, it appears that earlier also the petitioner approached this court by way of Matters Under Article 227 Constitution of India No.8791 of 2019 challenging order dated 20.09.219 whereby the court allowed the list of additional witnesses without granting leave. In pursuance of the order dated 19.11.20211 passed in the aforesaid case the impugned order dated 18.01.2021 has been passed by the trial court rejecting the objection of the defendant against the permission of the trial court to the plaintiff and her son, Gajendra Pratap Singh, to appear in the witness box as additional witnesses before the trial court and granted them leave.
In view of the above consideration, the order