• List of witnesses in divorce case

Reputed Lawyers,

A divorce case is filed by me and its in evidence stage. My lawyer filed list of witnesses to the court. But he did not mention that this is the final list and we are closing the evidence.

Now I have 2 more witnesses for which we filed a list with required stamp duty. However the Honorable Judge rejected the application saying that list can be submitted only once.

I request your advice to the following questions:
1. What is our right to file list of witnesses in family courts?
2. Whether additional list can be submitted by us?
3. Whether Honorable Judge have the right to reject our request for submitting additional list?
4. Under which act and relevant sections, we can re-submit the list?
5. Do we have to approach High Court to get the relevant order for acceptance of list?

Really appreciate your expert advice on the above.

Thank you in advance!
Asked 8 years ago in Family Law
Religion: Hindu

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12 Answers

Hi, you have no option you have to approach Hon'ble High Court by way of Writ Petition to challenge the order, under normal circumstance High Court will allow your application.

2. The trial court can reject the application it his discretionary, but i don't think if the application is allowed no hardship would by caused to the other side and i don't think court has exercise its power properly.

Pradeep Bharathipura
Advocate, Bangalore
5604 Answers
335 Consultations

4.5 on 5.0

Dear Querist

My opinion on your queries are as under:

1. What is our right to file list of witnesses in family courts?

Opinion: only once you may file the list of witness but if court permits then you may file additional list too.

2. Whether additional list can be submitted by us?

Opinion yes you can.

3. Whether Honorable Judge have the right to reject our request for submitting additional list?

Opinion: yes the judge have power.

4. Under which act and relevant sections, we can re-submit the list?

Opinion: section 151 of CPC.

5. Do we have to approach High Court to get the relevant order for acceptance of list?

Opinion: yes may file a revision petition before high court.

Nadeem Qureshi
Advocate, New Delhi
6307 Answers
302 Consultations

4.9 on 5.0

1. The list can be filed only once. However, the supplementary list can be filed with the permission of the court.

2. The court has vast discretion to reject the list filed by the parties.

3. Since your request for bringing additional witnesses by way of a supplementary list has been rejected you have no option except to approach the High Court which may allow the supplementary list.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

1) Both the parties to the suit shall file a list of witness within 15 days from the date on which issues were framed or within such other period as the court may prescribe.under Order XVI Rule 1 of CPC

2) Under rule 3 court has discretion to permit examination of additional witness if sufficient cause is shown for failure to mention his name in list of witnesses

3) if you failed to show sufficient cause court can reject your application

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

n „Mange Ram vs. Brij Mohan

& Ors., AIR 1983 SC 925’, it was held:-

9. If the requirements of these provisions are

conjointly read and properly analysed, it

clearly transpires that the obligation to

supply the list as well as the gist of the

evidence of each witness whose name is

entered in the list has to be carried out in

respect of those witnesses for procuring

whose attendance the party needs the

assistance of the Court. When a summons is

issued by the Court for procuring the

presence of a witness, it has certain

consequences in law. If the summons is

served and the person served fails to comply

with the same, certain consequences in law

ensue as provided in Rule 10 of Order XVI.

………………..………In view of this legal

consequence ensuing from the issuance of a

summons by the Court and failure to comply

with the same, the scheme of Rules 1, 1A of

Order XVI and Rule 22 of the Rules framed

by the High Court clearly envisaged filing of

a list only in respect of witnesses whom the

parties desire to examine and procure

presence with the assistance of the Court.

There, however, remains an area where if

the party to a proceeding does not desire the

assistance of the Court for procuring the

CM(M) No.420/2008 Page 13 of 21

presence of a witness, obviously the party

can produce such witness on the date of

hearing and the Court cannot decline to

examine the witness unless the Court

proposes to act under the proviso to Subsection

(1) of Section 87 of the '1951 Act'

which enables the Court for reasons to be

recorded in writing, to refuse to examine any

witness or witnesses if it is of the opinion

that the evidence of such witness or

witnesses is not material for the decision of

the petition or that the party tendering such

witness or witnesses is doing so on frivolous

grounds or with a view to delay the

proceedings. It, therefore, unquestionably

transpires that the obligation to supply the

list of witnesses within the time prescribed

under sub-rule (1) of Rule 1 of Order XVI is

in respect of witnesses to procure whose

presence the assistance of the Court is

necessary. And this ought to be so because

the Court wants to be satisfied about the

necessity and relevance of the evidence of

such witness whose presence will be

procured with the assistance of the Court.

This not only explains the necessity of

setting out the names of witnesses in the list

but also the gist of evidence of each witness.

If mere omission to mention the name of a

witness in the list envisaged by sub-rule (1)

of Rule 1 of Order XVI would enable the

Court to decline to examine such witness,

Rule 1A of Order XVI would not have

omitted to mention that only those witnesses

kept present could be examined whose

names are mentioned in the list envisaged by

sub-rule (1) and who can be produced

without the assistance of the Court. Viewed

CM(M) No.420/2008 Page 14 of 21

from this angle, Rule 1A becomes wholly

redundant. If it is obligatory upon the party

to mention the names of all witnesses

irrespective of the fact whether some or all

of them are to be summoned and even the

names of those whom the party desires to

produce without the assistance of the Court

are also required to be mentioned in the list

on the pain that they may not be permitted to

be examined, Rule 1A would have given a

clear legislative exposition in that behalf and

the marginal note of Rule 1A clearly

negatives this suggestion. Marginal note of

Rule 1A reads as 'Production of witnesses

without summons' and the rule proceeds to

enable a party to bring any witness to give

evidence or to produce documents without

applying for summons under Rule 1. If it

was implicit in Rule 1A that it only enables

the party to examine only those witnesses

whose names are mentioned in the list filed

under sub-rule (1) of Rule 1 whom the party

would produce before the Court without the

assistance of the Court, it was not necessary

to provide in Rule 1A that the party may

bring any witness to give evidence or to

produce documents without applying for

summons under Rule 1. Rule 1A of Order

XVI clearly brings to surface the two

situations in which the two rules operate.

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

CM(M) No.420/2008 Page 15 of 21

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.

10. 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 subrule

(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 of necessity 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 operate in two different areas and cater

to two different situations.

11. The analysis of the relevant

provisions would clearly bring out the

CM(M) No.420/2008 Page 16 of 21

underlying scheme under Order XVI Rules 1

and 1A, and Rule 22 of the High Court

Rules would not derogate from such

scheme. The scheme is that after the Court

framed issues which gives notice to the

parties what facts they have to prove for

succeeding in the matter which notice would

enable the parties to determine what

evidence oral and documentary it would like

to lead, the party should file a list of

witnesses with the gist of evidence of each

witness in the Court within the time

prescribed by sub-rule (1). This advance

filing of list is necessary because

summoning the witnesses by the Court is a

time consuming process and to avoid the

avoidable delay an obligation is cast on the

party to file a list of witnesses whose

presence the party desires to procure with

the assistance of the Court. But if on the date

fixed for recording the evidence in an

election petition, the party is able to keep his

witnesses present despite the fact that the

names of the witnesses are not shown in the

list filed under sub-rule (1) of Rule 1, the

party would be entitled to examine these

witnesses and to produce documents through

the witnesses who are called to produce

documents under Rule 1A. …

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

1) you can make application to court but as mentioned in order XVI rule 3 sufficient cause has to be shown as top why you want to examine additional witnesses

2) it is at the discretion of the court

3) you must have engaged a local lawyer . he would guide you in this regard

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

1. Filing of list of witness is only directory and not mandatory. So if the witness is material the party can bring him.

2. You can file petition to bring additional witness. It is permissible.

3. Yes but generally the court does not reject such additional list.

4. There is no specific provision to file such list. It is permissible for ends of justice.

5.Yes you have to challenge such order in the high court

Devajyoti Barman
Advocate, Kolkata
22779 Answers
484 Consultations

5.0 on 5.0

No petition for recall will serve the purpose. You have to file Revision in high court.

Devajyoti Barman
Advocate, Kolkata
22779 Answers
484 Consultations

5.0 on 5.0

1. You hav every right to call additional witnesses as per Order 16 Rule 1(3) of CPC,

2.You shall have to show reason for their ommission in henfirst list,

3.File an application under te above Rule giving adequate eason for their ommision from thrfirst list,

4. If the application is rejected, appeal agaisnt thesaid rder in higher court.

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

1. You file an aplication under the above Rule giving the list of aditional witnesses and also dshowing reason for heir non-inclusion in the irst list,

2. If it is rejected, file an application before the higher court as advised in my earlier post.

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

When the case is on trial, after prosecution witness No.1's examination is completed, during further PWs, a list of witnesses can be submitted to the court under Order 16 Rule 1 and 1A. If the court dismisses the petition so filed, then a revision on it can be taken up before the high court for relief and remedy.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

1. A recall application cannot be made in matrimonial proceedings. You have quoted the provision of law which does not have anything to do with witnesses.

2. As I remarked earlier, the only recourse available to you is to move the HC.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

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