Adopting of elaborate procedure stipulated for full fledged trial for enquiry in application under Section 5 of Limitation Act is not automatic.

In an Application filed under Section 5 of the Limitation Act proceedings thereon, can the Plaintiff call upon the Applicant / Defendant to be examined on his / Plaintiffs side is the point falling for consideration in this Revision.

2. 1. For disposal of this Revision, brief narration of facts is necessitated:- Petitioners / Plaintiffs have filed O.S.No.244 of 2005 on the file of Additional Subordinate Court, Chengalpattu for Declaration and Delivery of possession and to cancel the Sale Deed dated 212. 1967 and for Permanent Injunction in respect of property at Kottivakkam. The Suit was decreed exparte on 27.01.2006.

2. 2. Alleging that Court summons was not sent to him and that no proper service of summons upon him, Second Defendant filed Application to set aside exparte decree. There was a delay of 99 days in filing Petition to set aside the exparte decree passed against him on 27.01.2006. Hence, Second Defendant filed I.A.No.184 of 2006 under Section 5 of the Limitation Act (for short "the Act") to condone the delay of 99 days in filing the Petition under O.IX R.13 C.P.C. By filing elaborate Counter, Revision Petitioners / Plaintiffs are contesting the matter. The Application filed under Sec.5 of the Act is still pending.

3. Revision Petitioners / Plaintiffs have filed I.A.No.88 of 2007 under O.XVI R.1(2) C.P.C to issue summons to the Second Defendant to give evidence in the Petition. Observing that it is for the Second Defendant, who is the Petitioner in I.A.No.184 of 2006 as to whether adduce oral evidence, Court below dismissed that Application, which is challenged in this Revision.

3. I have heard the submissions of both sides.

4. The first contention urged by Petitioners that the Impugned Order is a non-speaking order is factually incorrect. The Lower Court dismissed the Application under O.XVI R.1 (2) C.P.C by a well considered order.

5. O.XVI R.1(2) C.P.C is an enabling provision for issuing summons to the Witnesses after the issues are settled. O.XVI R.1(2) C.P.C reads as follows:-

"...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..."

6. O.XVI C.P.C provides for furnishing a list and enables the party to obtain summons for the attendance of any person and discretion conferred upon the Court to permit a party to summon through Court or otherwise any witness other than those whose names appear in the list submitted under sub-rule (1). O.XVI C.P.C is procedure contemplated for full fledged trial in the suit and not for summary proceedings / holding enquiry under Section 5 of the Act.

7. Under O.XVI R.1(2) C.P.C, a party making prayer to the Court to issue summons to witnesses must disclose the purpose for which the witness is to be examined. Sub-rule (3) of Rule (1) confers a discretion upon court to permit a party to summon through Court or otherwise any witness other than those whose names appear in the list submitted under rule (1). If the party shows sufficient cause for the omission to mention name of such witnesses in the said list, the Court may for reasons to be recorded issue summons. Adopting such elaborate procedure stipulated for full fledged trial for Enquiry in an Application under Section 5 of the Act is not automatic.

8. Learned Senior Counsel for the Petitioners contended that in the supporting Affidavit filed by the Second Defendant in I.A.No.184 of 2006, the Second Defendant has made certain allegations regarding non-service of summons. It was submitted that summons sent through Registered Post has been served on Second Defendant and if Plaintiffs are able to establish that the said Registered Post has been served on the Second Defendant, then the Second Defendants allegation in the Affidavit would become false and for that purpose, the Plaintiffs made prayer to the Court to examine Second Defendant. Laying emphasis upon O.XVI R.20 and