Honble MADAN, J.–Shri Manoj Kumar Sharma petitioner who is a practising Advocate of this Court has preferred this revision petition against an order dated 10.1.2000 in Civil Suit No. 257/96 whereby the trial Court (ADJ No.8 Jaipur City) allowed defendant respondents application with costs of Rs. 1000/- under Order 16 Rule 1 CPC for allowing two additional witnesses for being examined in his support.

(2). A suit for eviction was instituted by the plaintiff (petitioner) against the defendant (respondent) on the grounds of : (1) default in payment of the rent, (2) sub-letting and (3) reasonable bonafide necessity. Written statement was filed by the respondent. The issues were framed. Additional Issues Nos. 9 & 10 were framed on 2.12.94 and 6.11.96 respectively. The plaintiff adduced his evidence and closed it on 11.2.99. The examination-in-chief of defendant who appeared as DW 1 was completed on 6.11.98 and thereafter since the plaintiff moved certain applications the trial Court first considered those applications. Ultimately, the plaintiff cross examined Jagdish defendant (DW1) on nine dates and closed his cross examination on 12.10.99. Since, it has been plaintiffs case that the defendant had sublet the suit premises without permission of the plaintiff to one Dinesh Parwani who unauthorisedly established business of STD/PCO Shop thereon, plaintiffs application for summoning file as to establish his case for business of STD/PCO Shop, was allowed by the trial Court on costs of Rs. 400/- and in this regard, a number of questions were put to Jagdish (DW1) (defendant) by the plaintiff during cross examination.

(3). However, the defendant moved an application under Order 16 Rule 1 CPC for examining two additional witnesses on his behalf namely; (1) Dinesh Parwani and (2) Montoo Jasnani by incorporating their names in the list of defendant witnesses already furnished to the trial Court in order to disprove the fact of sub-letting developed by the plaintiff in his amended plaint, to which the plaintiff contested by filing his reply. After hearing the parties, the learned trial Court allowed defendants application subject to the payment of costs of Rs. 1000/-, directing him to get summons of afore named witnesses served at his own instance. Hence this revision petition.

(4). Shri Manoj Kumar Sharma, petitioner plaintiff, appearing in person, vehemently contended that if the impugned order is considered in the context of provisions of Order 16 Rule 1(1) to 1(4) so also Rule 1A CPC, it is wholly without jurisdiction and therefore, the order is hit by provisions of Sec. 115 (1) (a), CPC. Next contention canvassed by Shri Sharma is that the trial Court passed the impugned order on the assumption that while considering application under order 16 Rule 1, CPC it could ignore the mandate of Order 16 Rule 1(2) which are binding in nature and even otherwise, if a particular provision of an Order of the CPC gives discretion to the court, such a discretion has to be exercised fairly in the facts and circumstances of a particular case. The learned counsel placed reliance upon the decision of the Apex Court in Mangeram vs. Brij Mohan (1). It is the petitioners case that defendants application was clearly against the mandate of Rule 1(1) of Order 16 as it did not make any mention as to the purpose for which the witnesses were proposed to be summoned, inasmuch as requirement of sub clause (2) of Rule 1 of Order 16 was lacking in the instant case and that being so, the trial Court had no occasion for allowing defendants application to record sufficient cause for the omission to mention names of these two witnesses.

(5). Shri Manoj Kumar Sharma the petitioner herein also contended that the trial court failed to give reasons and pass a speaking order as to sufficient cause for the omission to mention names of such witnesses in terms of sub cl. (3) of Rule 1 of Order 16 CPC and therefore the order to give summons to summon witnesses is contrary to sub-cl. (4)

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