Filing of witness list mandatory before commencement of recording of evidence, Delhi HC

Filing of witness list mandatory before commencement of recording of evidence, Delhi HC

Aditi Singh

The Delhi High Court has stated that the practice of permitting commencement of evidence by district courts without insisting for lists of witnesses being filed by the parties is contrary to law and must be stopped with immediate effect. Filing the list of witnesses is mandatory before the commencement of the recording of evidence, the Court has iterated.

The judgment was passed by a Single Judge Bench of Justice Prathiba M Singh.

It was the Petitioner’s case that the Respondent, who was the Plaintiff in a case pending before a Delhi sub-ordinate court against the Petitioner, had not filed any list of witnesses. Instead, after the conclusion of the cross-examination of the first witness, the Respondent-Plaintiff chose to file evidence by way of affidavit of the second witness and the same was allowed by Court.

The Petitioner-Defendant submitted that in terms of Order XVI CPC, such a procedure could not be adopted without filing the list of witnesses.

The second grievance of the Petitioner was in relation to the de-exhibition of certain documents.

After perusing the facts of the case, the Court opined that the filing the list of witnesses was mandatory as held by the Court in Zile Singh v. Santosh @ Santra & Ors. 

“..there is no doubt that without the filing of the list of witnesses, parties ought not to be permitted to commence the recording of evidence.”, it said.

Quoting from Zile Singh v. Santosh @ Santra & Ors, the Court recorded,

“..Prior to listing a case for PE, the court shall ensure that the list of witnesses by all the parties is on record. The court would have the power to prune the list of witnesses so as to ensure that unnecessary burden is not put on the Registry in preparing summons and only those witnesses whose oral evidence is necessary shall be summoned;

ii. Prior to recording the examination in chief, the judicial file shall be seen to confirm that the affidavit in evidence is on record. All the documents which the witness seeks to exhibit shall be examined and either exhibited or marked. Only thereafter the cross-examination would commence…”

The Court, nonetheless, permitted the Respondent-Plaintiff to lead his evidence with respect to the second witness as he was a witness to various documents that were relied upon and his evidence was filed and served.

The Court also allowed the Petitioner-Defendant to cross-examine the second witness.

The Court, however, made it clear that no further evidence shall be permitted on behalf of the Respondent-Plaintiff.

With respect to the second issue on the de-exhibition of documents, the Court observed that it was the settled position in law that mere exhibition of documents would not mean that the same would be read in evidence without being examined.

If the Defendant has any objections in respect of mode of proof, admissibility or other objections in respect of these documents, prior to commencement of cross-examination, the said objections would be raised and recorded by the Trial Court. After recording the objections of the Defendant, the cross-examination shall commence. The objections shall be dealt with and adjudicated at the time of final hearing.  The objections shall be dealt with and adjudicated at the time of final hearing. It is made clear that mere exhibition of these documents, shall not mean that the Trial Court has deemed them to have been proved in accordance with law or that the same have to be read in evidence.”, the Court explained.

In view of the above, the petition was disposed of.

The Petitioner was represented by Advocate Abhay Kumar.

Read the Judgement:

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