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s v desai (lecturer)     25 October 2023

Time limit for producing list of evidence

Respected experts
I have challenged a forged will alleged to be written by my mother's elder brother in favour of a person not related to our family.
The beneficiary of the will who is not relative filed for probate.
During trial he has not produced the list of witnesses but he produced a third person as his witness. That witness has not signed on that forged will

After the trial the trial court dismissed case as the attesting witnesses were not present for giving their evidence.

He went to senior court against the judgement of trial court.

The senior court directed trial court to record the statement of the attesting witnesses.

Now he is producing the list of witnesses in the trial court and requesting to issue summons.

Can the trial court accept the list of witnesses now?

As the time for producing list of witnesses is over or it can be considered>


Learning

 8 Replies

Shashi Dhara   25 October 2023

You can file objections the court will decide after arguments and pass orders.

T. Kalaiselvan, Advocate (Advocate)     26 October 2023

Though, a period of 15 days has been prescribed under Order 16 Rule 1 of CPC for the purpose of providing list of witnesses to the Court, however, once the court has been given power under sub-Rule 3 of Rule 16 to permit any party to summon any witness other than the witnesses named in the list referred to in sub-rule .There cannot be any amount of dispute that Order XVI Rule 1(2) of the CPC lays down that the party desirous of obtaining any summons for the attendance of any person shall file in court an application stating there the purpose for which the witness is proposed to be summoned and for any reason, such application can be allowed. 

 If the Respondents/Plaintiffs in present case is denied an opportunity of examining the two additional witnesses for technical lapse of non inclusion of their names in the list of witnesses or for non-showing of sufficient cause in the application, the same would result in miscarriage of justice. In the event of Respondents/Plaintiffs being successful in proving that the transaction in question is that of a Will by examining the said two additional witnesses, the same would have a material bearing on the result of litigation. In such circumstances, Court would not deny them the opportunity by showing technical rules of procedure, 

1 Like

s v desai (lecturer)     26 October 2023

Respected experts
The plaintiff not produced any list of witnesses in trial court.
The trial court pronounced the judgement and decree in favour of us.

Against the judgement he filed R.A in Senior court.

In senior court he mentioned that he is illiterate farmer he is not informed by his lawyer to produce witnesses during the trial. As he is not having the importance of producing witnesses during trial in trial court. It is not his mistake. It is the mistake of his lawyer. Hence he changed his lawyer.
The new lawyer informed him to produce witnesses.

So He pleaded in the senior court that if the senior court provides a chance he will produce witnesses.
The senior court allowed him to produce witnesses in trial court.
But now he is produced list of witnesses.
Now he filed IA under rule 16[1] and requested trial court to provide an opportunity to file list of witnesses now and issue summons to the witnesses.

My question is that he has not provided any list of witnesses in trial court during trial and the trial court already pronounced its judgement.

The time limit for producing list of witnesses is over can trial court permits now as per the above rule 16[1].

Can we object this as list is not produced within time in the trial court.

T. Kalaiselvan, Advocate (Advocate)     26 October 2023

If he has filed the petition to summon the said witnesses who have been mentioned in the latest list iof witness, you would have been given a copy of the same to file your objection.

You can file your objection on the points you rely upon.

However since the appellate court has passed an order to the trial court to permit him to produce witnesses, your objections may not fetch you any relief as desired by you, but that will not prevent you from filing your objections. 

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s v desai (lecturer)     26 October 2023

Sir

He is directly blaming his previous advocate for not guiding him properly.
Is this forms a ground or valid reason for allowing his application.

Shashi Dhara   26 October 2023

Civil suit has no end until compromised so object argue it may be allowed or dismissed ifallowed opposite appeal,dismissed petitioner appeal it has no end.

T. Kalaiselvan, Advocate (Advocate)     26 October 2023

The cases are not conducted on the logical reasoning.  It is based on the provisions of applicable law to each and every circumstances of the case. 

You have a valid observation, and you can object his application on this point too, court will not ask you to withdraw your objection. 

However you must bear it  in mind that the trial court will follow the instructions of the appellate court only, hence the decision is a pre-determined one. 

Therefore you are helpless in this suituation, hence you have to accept the decision without any choice.

Thus instead of concentrating on the maintainability of this application, you can prepare the strategies to extract contradiction or nullify the evidence deposed by the fresh witnesses during  your cross examination.

1 Like

P. Venu (Advocate)     27 October 2023

The Trial Court by the directions of the Appellate Court. So also, it is  well settled that no litigant should suffer for the mistake of his advocate.

In my considered opinion, there is no point in objecting to the steps for summoning of the attesting witnesses. Your remedy, obviously, was in preferring  Appeal against the Order for retrial.


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