M MUNASWAML NALDU Vs. K NAGAMANL

JUDGEMENT

(1.) Order made in I.A.No. 216 of 1996 in O.S. No.459 of 1987 on 28-6-1996 by the Munsif Magistrate, Pakala, Chittoor District is the subject matter of challenge in this revision.

(2.) Respondent instituted a suit for injunction in O.S. No.459 of 1987 in the Court of the Munsif Magistrate, Pakala, Chittoor District. Petitioners are the defendants in the said suit. The respondent being the plaintiff in the said suit filed an application under Order 16 Rule 2 (sic.l(2)) of CPC to summon the Advocate-Commissioner appointed in I. A. No.495 of 1986 which was instituted by the respondents in O.S. No.292 of 1986 on the file of the Munsif Magistrate, Piler. The respondent averred in the affidavit filed in support of the petition that in the earlier suit O.S. No. 292 / 86 in the Court of the Munsif Magistrate, Piler, an Advocate-Commissioner by name Sudhakar Reddy was appointed for noting down the physical features of the suit property and as such the respondent desired to examine the said Advocate-Commissioner to speak about the physical features of the suit property. The said I.A. No. 216 / 96 in O.S. No.459 of 1987 which is filed under Order 16 Rule 2 of CPC was opposed by the petitioners herein. But, however, the lower Court allowed the said application, against which the present revision is filed.

(3.) It is contended by Sri P.S. Narayana, learned counsel for the petitioners that sub-rule (1) of Order XVI Rule 1 of CPC contemplates that after settlement of issues by the Conrt, every contesting party shall furnish a list of witnesses to the Court who are likely to be examined on its behalf, within a reasonable time. Sub-rule (2) further provides for seeking attendance of any witness through filing necessary application. Sub-rule (3) provides that even if a person has not been named as a witness, a party could seek the presence of such person to be examined as a witness by filing necessary application and the Court on satisfying with the reasons, permit such party to seek the attendance of the witness. The amendment introduced to Order 16 of CPC with effect from 1-2-1977 further introduces the Rule 1-A to Order 16 of CPC which enables a party of the suit, without the assistance of the Court, may bring any witness to examine him or production of documents. Sri Narayana states, when there is a specific provision to obtain the presence of a witness whose name has not been furnished to the Court, under Rule 1-A of Order 16 of CPC, without the assistance of the Court, filing of petition under sub-rule (2) of Rule 1 of Order 16 seeking to summon an unnamed witness is impermissible. When filing of such application is not permissible according to law, the lower Court ought to have rejected that application and stated that the impugned order is to be set asideon the ground that the lower Court has exercised the jurisdiction illegally.