ORDER :

The Civil Revision is directed against the order passed in I.A.No.2 of 2020 in O.S.No.75 of 2016, dated 20.01.2021, allowing the petition filed under Order 16 Rule 10(3) of the Code of Civil Procedure.

2. The revision petitioner is the plaintiff and she filed the suit in O.S.No.75 of 2016, against the first defendant and one Alagumalai, claiming the relief of declaration that the suit property belongs to the plaintiff and for consequential permanent injunction restraining the defendants and their men from in any way interfering with the plaintiff's peaceful possession and the enjoyment of the suit property and also for mandatory injunction for removal of the wall constructed by encroaching upon the suit property. The defendants have filed their written statement and are contesting the suit.

3. It is evident from the records that the plaintiff has been claiming title to the suit property on the basis of a Will, dated 22.05.2007 alleged to have been executed by her mother-in-law Radha and that the plaintiff, after examining herself as P.W.1, had examined two attesters of the said Will namely Balusamy and Rani as P.W.2 and P.W.3 respectively and thereafter, plaintiff side evidence was closed.

4. The first defendant, after examining himself as D.W.1, has taken summons to the other two attesting witnesses of the said Will, namely Tmt.Kaliswari and Tmt.Mariammal for giving evidence, that since the said two witnesses after the receipt of summons, have not turned up. The first defendant has then, by alleging that the said two witnesses after receiving the summons, have failed to appear before the Court and they have violated the orders of the trial Court and that therefore, arrest warrant has to be issued against the said two witnesses, filed the above petition under Order 16 Rule 10(3) of CPC. The learned District Munsif, after enquiry, has passed the impugned order dated 20.01.2021 allowing the said petition and thereby directed to arrest the said two witnesses and produce them before the Court. Challenging the said order, the plaintiff has come forward with the present revision.

5. At the outset, it is necessary to refer the Order 16 Rule 1 CPC.

“ORDER XVI-SUMMONING AND ATTENDANCE OF WITNESSES

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 person 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 part 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 within five days of presenting the list of witnesses under sub-rule(1).”

Order 16 deals with summons and attendance of witnesses. Though Sub Rule 1 contemplates that the parties shall present their list of witnesses whom they proposed to examine on their side or for production of documents within 15 days from the date on which, the issues are framed, Sub Rule 2 indicates that the party desirous of obtaining summons for the witness has to file an application stating the purpose for which, the witness is proposed to be summoned.

6. A Division Bench of Kerala High Court in N.Yovas and another Vs. Immanueal Jose and others reported in AIR 1996 Kerala 1, has held that the objec