SANJAY KISHAN KAUL, J.

( 1 ) THE petitioners are tenants in the suit property of the respondents being commercial premises bearing Municipal Nos. 2 and 3, 17, Community Centre, Ashok vihar, Delhi " 110 052. The father of the respondents had filed eviction petition on the ground of subletting against the petitioners in the year 1984 and the matter has been since pending.

( 2 ) THE grievance of the petitioners arises from the order passed on 23. 04. 2003 on the application of the petitioners under Order XVI Rule 1, 2 and 3 of the Code of Civil Procedure, 1908 (hereinafter to be referred to as, 'the Code') for examining four more witnesses in support of their case. It is the case of the petitioners that evidence was material for disposal of the controversy and related to the subsequent developments. The Additional Rent Controller (for short, 'arc'), however, rejected the application. The petitioners thereafter filed a review application, which has also been dismissed by the order dated 28. 09. 2005.

( 3 ) THE petitioners seek to produce four witnesses, namely, Shri Ashok Kumar, Shri ram Bhaj, Shri Shanti Swaroop and Shri Sanjay Kumar Mittal. The application of the petitioners was opposed by the respondents on the ground that the matter was no more res integra since the request of the petitioners to summon the witnesses mentioned in the list of witnesses had already been disallowed.

( 4 ) IT may be noticed that undisputedly the name of Shri Ram Bhaj was included by the petitioners in the list of witnesses naming 21 witnesses. The request of the petitioners to summon witnesses at Serial Nos. 4 to 13 were disallowed by the order dated 27. 09. 1995 and the name of Shri Ram Bhaj was at Serial No. 6. This order was never challenged any further.

( 5 ) LEARNED counsel for the petitioners did not dispute the aforesaid position and, thus, did not press the petition insofar as the question of producing Shri ram Bhaj as a witness was concerned.

( 6 ) LEARNED counsel for the petitioners, however, contended that the aforesaid reasoning would not apply to the other three witnesses whose name did not appear in the list of witnesses. Learned counsel contended that the non-mention of names in the list of witnesses was not material once the petitioners were producing the witnesses at their own responsibility. In this behalf, learned counsel relied upon the judgment of the Apex Court in Mange Ram v. Brij Mohan and Ors. , AIR 1983 SC 925. The Apex Court considered the effect of the provisions of Order XVI Rule 1 of the Code, which reads as under: "1. List of witnesses and summons to witnesses "- (1) On or before such date as the Court may appoint and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summons to such persons for their attendance in Court. (2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. (3) The Court may for reasons to be recorded permit a party to call whether by summoning through Court or otherwise any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. (4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the Court in this behalf. "

( 7 ) THE question of law, which arose was, whether a party to a proceeding, which does not wish to have the assistance of court for purposes of procuring the attendance of witness, could be denied privilege of examining witnesses kept present by him on the date fixed for recording of evidence on the sole ground that the name o