Heard learned counsel for the petitioner-defendant.
Learned counsel for the petitioner-defendant submitted that SCC Suit No. 13 of 2018 was filed in which written statement was also filed and thereafter respondent-plaintiff has submitted a list of three witnesses on 15.10.2018. PW-1 and PW-2 were examined and respondent-plaintiff has given an affidavit of one Gajendra Singh dated 30.7.2019 whose name did not find place in the list of witnesses submitted by respondent-plaintiff on 15.10.2018. In the list dated 15.10.2018, name of one Ram Niwas was given as PW-3. The petitioner-defendant has filed objection on 22.8.2019 mentioning therein that as the name of Gajendra Singh was not in the list of witnesses submitted earlier, therefore, his statement may not be taken on record. After filing of objection, the respondent-plaintiff has filed an application dated 22.8.2019 giving name of two additional witnesses namely Shanti Devi and Gajendra Singh. Considering the same, Judge, Small Causes Court has rejected the application of the petitioner-defendant vide order dated 20.9.2019. He next submitted that submission of list of additional witnesses as well as order of Judge, Small Cause Court is absolutely contrary to the provisions of Order XVI Rule 1 sub-rule (3) C.P.C. which provides as under:-
"(3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list."
He next submitted that after filing objection by petitioner-defendant, on the very same day list of additional witnesses was filed without obtaining permission of the court and the court below has accepted the list of additional evidence and rejected the application of the petitioner without recording any reasons as provided in Order XVI Rule 1 sub-rule (3) C.P.C., therefore, impugned order is bad in law and liable to be set aside.
I have considered the submission made by learned counsel for the petitioner and provisions of Order XVI Rule 1 sub-rule (3) C.P.C. as well as other documents available on record. There is no dispute on the point that the statement of alleged witness Gajendra Singh was recorded on 30.7.2019 upon which the petitioner-defendant has filed objection on 22.8.2019 and on the very same day, respondent-plaintiff has filed an application dated 22.8.2019 without following the procedure provided in Order XVI Rule 1 sub-rule (3) C.P.C. and the court below accepted the same and rejected the objection of the petitioner-defendant without recording any reason, therefore, the impugned order dated 20.9.2019 is exfacie bad in law.
Accordingly, the writ petition is allowed. The impugned order dated 20.9.2019 passed by Additional District Judge, Court No. 15, Agra is hereby quashed. The matter is remanded back to the Judge, Small Causes Court, Agra to consider the objection of the petitioner-defendant afresh by a reasoned order in accordance with Order XVI Rule 1 sub-rule (3) C.P.C.
Order Date :- 29.11.2019 Rmk.