A.K. Goswami, J.

1. This application under Article 227 of the Constitution of India read with Section 151 of the CPC is filed against the order dated 16.02.2012 passed by the learned Munsiff 2, Nagaon in Title Suit No 107 of 2006, rejecting the petition dated 09.12.2011 praying for allowing the defendants to submit the list of witnesses, which was mistakenly, not filed earlier. The aforesaid Suit was filed by the opposite party herein for declaration of right, title, interest and recovery of has possession. The petitioners, who are defendants in the Suit, contested the Suit by filing their written statement the learned Trial Court had framed issues. 09.12.2011 was a date fixed in the Suit for plaintiffs evidence. On that very date, the defendants filed a petition, which came to be rejected, as has been noted herein above, by the order which is under challenge in this petition.

2. I have heard Mr. P. Sundi, learned counsel for the petitioners and Mr. S. Sarkar, learned counsel for the opposite party, and as agreed to by the learned counsel for the parties, this petition is taken up for disposal at the admission stage.

3. Mr. K. Sundi, learned counsel for the petitioners has submitted that though in the petition filed before the learned Trial Court, it was mentioned that no date was fixed for SBPH, the same is not correct as, in fact, dates were fixed for the said purpose and the learned Trial Court was right in observing that the contention of the defendants that no dates were fixed for SBPH is not correct. He has submitted that the learned counsel for the defendants had omitted to notice two dates fixed for the aforesaid purpose and was under the impression that no dates were fixed for submission of list of witnesses. The learned counsel submits that the learned Trial Court was in error in concluding that allowing the defendants to file their list of witnesses when the plaintiffs side had filed their evidence on affidavit, will prejudice the plaintiff. The learned counsel submits that even at this stage, the defendants can be permitted to file their list of witnesses. In support of his contention Mr. Sundi relies on the provisions of Rule 1 and 1A of Order XVI CPC.

4. Per contra, Mr. S. Sarkar, learned counsel for the opposite party submits that the plea taken by the defendants is wholly untenable and such a plea is taken only with a view to delay the proceedings. The plaintiff had filed the list of witnesses on 03.09.2008. More than three years had gone by, when the defendants had filed the petition for allowing them to submit the list of witnesses and therefore, the learned Trial Court did not commit any irregularity or jurisdictional error in rejecting the petition. No case is made out for interference of the said order, he submits.

5. Rule 1 and 1A of Order XVI reads as under:

Rule 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 summonses 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 in this behalf within five days of presenting the list of witnesses under sub-rule (1)].

[1-A. Production of witnesses without summons