Direction given for issuance of summons to commissioner for testifying relevant facts.

This revision is directed against the Order in I.A.No.1618/2001 in O.S.No.148/1997 on the file of Principal District Munsif, Pondicherry, dismissing the application filed under Or.13, R.1(2) and (3) read with Sec.151 CPC, declining to issue summons to the witnesses.

2. Plaintiff has filed the suit for Permanent Injunction restraining the Defendants from encroaching into the suit property and for mandatory injunction. Contending that measurements are not correct and the boundaries given by Plaintiff is incorrect Defendants filed I.A.No.145/1997, and in that application, Commissioner was appointed and he has filed his report. Plaintiff has filed elaborate objection to the report of the Advocate Commissioner.

3. After the conclusion of the trial, at the stage of arguments, Plaintiff has filed I.A.No.1615/2001 to reopen the case for the purpose of examination of Plaintiffs. That application was allowed by the Order dated 12.09.2001 and case was reopened to recall P.W.s 1 and 5.

4. Along with application to reopen the case, Plaintiff filed I.A.No.1618/2001, seeking issuance of summons to the witness viz., (1)Advocate Commissioner; (2)Deputy Surveyor, Pondicherry; (3)Director, National Archives of India, Record Centre, Pondicherry.

5. That application was dismissed by the trial Court finding that the list of witnesses does not include the above witnesses and no reason has been adduced by the Plaintiff for non-inclusion of witnesses in the previous witness list. It was further observed that the third witness cited viz., Director, National Archives was already examined on the Plaintiffs side as PW-5.

6. The Order is impugned on the ground that when the Court had reopened the case for the purpose of recalling P.W.s 1 and 5, Court ought to have allowed the application and issued summons to the Commissioner and the Taluk Surveyor.

7. The learned Counsel for the Respondent has submitted that the Director, National Archives of India was already examined as PW-5 and there is no need to examine the Deputy Surveyor. It was further submitted that when the suit was posted for arguments, application was filed to examine the Advocate Commissioner only with a view to delay further proceedings and the impugned Order warrants no interference.

8. Or.16 R(1) sub Rule 3 CPC confers discretion on the Court to permit a party to summon through Court or otherwise, any witness, other than those whose names appear in the list submitted in sub Rule (1) if such party shows sufficient cause for the omission to mention the name of such witness in the list. Or.16 R.1A enables the party to bring any witnesses to give evidence or to produce the documents. But this enabling provision is subject to the provision contained in sub-Rule (3) of R.(1) of Or.16.

9. The trial Court has dismissed the application mainly on the ground that the Plaintiff has not included the list of witnesses it the earlier stage. The witnesses sought to be examined are Advocate Commissioner and others. The mere fact that name of a witness was not stated in the earlier list does not mean that he should never be allowed to be examined. Under Or.16 R.1(3) CPC, for reasons to be recorded, the Court can permit any witness, not mentioned in the list to be examined.

10. A party is entitled to seek issuance of summons to a Government employee or an Advocate Commissioner. However a party seeking issuance of summons to a witness must clearly state the purpose for which the witness is sought to be examined. In 2000 (3) MLJ 7 [Sri Aurobindo Ashram Trust, Pondicherry rep. By its Managing Trustee and another], this Court has held as "..., the legal position is that a party who seeks for a prayer to the Court to issue summons to a witness, must reveal to the Court the purpose for which the witness is proposed to be summoned. Once such an application is filed, it is for the Court to use its discretion and to decide whether summons are to be issued to those witnesses. It has to be pointed ou