MANGE RAM versus BRIJ MOHAN AND OTHERS

Citation: [1983] 3 S.C.R. 525 · Decided: 03-08-1983 · Supreme Court of India · Bench: D.A. DESAI · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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MANGE RAM 
v. 
BRIJ MOHAN AND OTHERS 
• August 3, 1983 
(D. A. DESAI AND 0. CHINNAPPA REDDY, JJ.] 
Code of Civil Procedure, 1908-0. XVl, rs.- I and JA-Trial of election 
petition-Right to bring any witness, withoilt applying for sum111ons, for exami-
nation under r. JA-.Scope of-Can court decline to examine witnesses kept 
A 
B 
present by party on the sole ground thai' their names have not been set out in the 
C 
list filed in compliance with r. I? 
Sub-r. (1) of r. 1 of 0. XVI,. Code of Civil Procedure, 1908 casts.an 
obligation on every party to a proceeding to present a list of witnesses whom 
it proposes to call and to obtain summonses to such persons for their atten-
dance in court; sub-r. (2) requires that the party seeking such assistance from 
the court must make an application stating the purpose for which the witness 
·is proposed to be summoned; .and sub·r. (J) confers· a discretion on the court 
to permit a party to summon· through court or otherwise any witness other 
than those whose names appear in the list submitted· under sub-r. (1), if such 
party shows sufficient cause foi the omission to mention the name of such 
witness in the said list.· Rule lA ·of 0. XVI enables a party to bring in any 
witness without applying for summons under r. 1 but this enabling provision is 
subject to sub-~. (3) of r. I. Rule 22 of the "Rules of Procedure and Guidance 
in the matter of trial of Election Petition under ·Part VI of the Representation 
of the People Act, 1951" of the Punjab and Haryana High Court merely 
re-enacts sub-rs. (1) and (2) of r. 1 of 0, XVI, C.P.C. 
Sub-s. (1) of s. 87 of the Representation of the People Act, 1951 makes 
0. XVI, C.P.C. applicable· to the trial of election petitions ·and the proviso 
thereto gives the High Court the discretion to r~fuse to exainine ·any 
Witness if it is of the opinion that the evidence of such witness is not 
material or that the party tendering such witness .is doing so on. · ffivolous 
grounds or with a view to delay the proc~edings. 
The appellant, who was the petitioner !n an election petition, had filed 
an application seeking permission to p~odu~e and examine witnesses whose 
names were set out in the application and the court had 'passed appropriate 
orders thereon. When the,f:Ourt was recording the evidence of the appelJant, 
he submitted another list of witnesses whom he had kept present in the Court 
for being exam~ned, but the court rejected the sa1ne for two reasons; (i) that 
the appellant had not mentioned their names in the application made by him 
earlier; and (ii) that there was no mention of the purpose for which they"were 
being offered for examination. The app~llant challenged the validity of the 
Goru •ts order. 
D 
E 
F 
G 
H 
A 
B 
D 
E 
F 
G 
H 
526 
SUPREME COURT REPORTS 
(i9S3j 3 S.C.R. 
Allowing the appeal, 
HELD : It is obligatory on the party to a proceeding to file the list ~r 
witnesses wi.th the gist of evidence and to make an application for issue of 
summons as provided in \sub-rs. (I) and (2) of r. 1, o. XVI only where the 
party wants the assistance of the court to procure the presence of witnesses; 
but w~ere the party is in a position to produce its witnesses without the asSis-
tance of the court, it can do so under r. !A irrespective of the fact whether the 
names of such witnesses are mentioned in the list or not and the court cannot 
decline to examine them unless it proposes to act under tJle proviso to sub-s. (1) 
ofs. 87 of the Representation of the People Act, 1951. (531G-H,532 A] 
(i) The obligation to file a list of witnesses with the gist of evidence of 
each Witness within the time prescribed under sub-r. (I) of r. I, O. XVI is in 
tespeCt Of those witnesses to procure wh6se presence the assistance of -the 
court is necessary. And, this ought to be -so because the court wants to be 
satisfte:d about the necessity and relevance of the evidence of Such witness 
whose presence will be procured with the assistance of the court. If mere 
omission to mention the name of a witness in the list envisaged by sub-r. (1) 
of r. 1 would enable the court to decline to examine such 'a witness, r. ·IA 
wOuld not have omitted to mention that only those witnesses kept present 
could be examined whose names ate n1ention'ed in the list envisaged by sub-r. 
(1) Of r. 1 and who can be produced without the assiStance of the court. The 
marginal note ofr IA r'eads: "Production of witnesses· without summons" and 
the rule proceeds
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