' Through these petitions under Article 199 of the Constitution petitioners have called into question identical orders dated 12-8-1997 passed by learned Family Judge, Warah in Guardianship Applications Nos.2 of 1996 and 3 of the 1996 filed by the petitioners against the respondents for appointment of guardians of the minors.
2. After the parties had filed their respective pleadings and the settlement of issues when the stage was set for recording their evidence, learned counsel for petitioners sought to examine two witnesses named in the body of the plaint ' without formally submitting a list of witnesses. It appears that the Presiding Officer took an exception to it and insisted for specific permission of the Court. Each of the petitioners was, therefore, obliged to move an application for permission to submit the list of witnesses for the reason that these could not be submitted earlier due to bona fide mistake on the part of the Advocate. Learned Family Court after hearing the parties and heavily relying upon the provisions contained in Order XVI, Rules 1 and 2, C.P.C. Declined to permit the submission of lists of witnesses for the reason that these were not filed within seven days after the settlement of issues. It is as against this interlocutory order which is otherwise not appealable, that the petitioners were constrained to approach this Court for intervention.
3. At the very out-set it may be pointed out that section 17 of the Family Courts Act 1964 expressly bars the application of provisions of Code of Civil Procedure except sections 10 and 11 to the proceedings before any Family A Court, therefore, insistence on compliance with the provisions of Order XVI, Rules, 1 and 2, C.P.C. On the part .Of the lower Court was completely misconceived and out of place. Impugned order, rather than advancing the ends of justice has, thus, resulted in multiplying of the petitioners.
4. There is another aspect of the matter. Section 7 of the Act 1964 dealing with institution of suits provides that the names and addresses of the witnesses and a brief summary of the facts to which they would dispose shall be filed alongwith the plaint. There is, however, an exception to the rule namely that the parties may with the permission of the Court call any witness at any later stage if the Court considers such evidence expedient in the interest of justice. There is a further restriction on the power of the Court in the matter of issuance of summons for appearance of witnesses postulated in section 11(2) of the Act which lays down that "the Court shall not issue any summons for the appearance of any witness unless, within three days of the framing of issues, any party intimates the Court that it desires a witness to be summoned through the Court and the Court is satisfied that it is not possible for such party to produce the witness." It may, however, be clarified that the petitioners were not seeking the issuance of summons for the appearance of any witness.
Indeed, what they desired the Court was to permit them to examine their witnesses whose names and addresses were already disclosed in the body of the plaint. Section 11(1) further provides that on the date fixed for the recording of the evidence, the Family Cowl shall examine the witnesses produced by the parties in such order as it deems fit. This provision of law tends to show that it is the absolute right of the parties to produce any witness and it is incumbent upon the Family Court to examine such witness subject to the requirements of foregoing provisions.
5. The spirit of law underlying these provisions is to simplify the procedure for resolution of matrimonial affairs and to reduce the time limit in the settlement of disputes between the spouses.
Indeed elaborate and lengthy procedure prescribed for trial of suits under the Code of Civil Procedure has been done away with for expeditious disposal of disputes arising between spouses.
By the impugned order while declining to permit the petitioners to examine their witnesses, learned trial Court appears to have acted in a mechanical and highly technical manner against the spirit of law. Suffice to point out, since the names and addresses of the witnesses were already disclosed in the plaint which also disclosed the dispute between the parties, it was neither necessary nor incumbent upon the Court to insist strict compliance with the provisions of law relating to procedure for recording evidence. Procedural law, it may be observed, is meant for advancing the cause of justice and expedite the decision of disputes rather than to deny the grant of rights to respective parties. To my mind, the impugned order passed by the trial Court is neither just nor legal and proper in the circumstances of the case and it was passed without lawful authority.
6. For the aforesaid facts and reasons having regard to the circumstances of the case, impugned order is quashed, petitions are allowed and Trial Court is directed to record evidence of witnesses named in the plaint and dispose of the suits within three months hereafter. A copy of this judgment be forwarded to learned Presiding Officer for reporting compliance to the High Court through M.I.T.-