• 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 1 year ago in Family Law from Kanpur, Uttar Pradesh
Religion: Hindu
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
4105 Answers
133 Consultations
4.3 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
3537 Answers
130 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
18167 Answers
449 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
23315 Answers
1220 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
23315 Answers
1220 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
23315 Answers
1220 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
5233 Answers
54 Consultations
4.9 on 5.0
No petition for recall will serve the purpose. You have to file Revision in high court.
Devajyoti Barman
Advocate, Kolkata
5233 Answers
54 Consultations
4.9 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
12123 Answers
233 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
12123 Answers
233 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
14090 Answers
127 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
18167 Answers
449 Consultations
5.0 on 5.0

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T Kalaiselvan
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5.0 on 5.0
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