ORDER
R. Banumathi, J.
1. 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 / Plaintiff’s 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 22.12.1967 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 Order IX Rule 13 C.P.C. By filing elaborate Counter, Revision Petitioners / Plaintiffs are contesting the matter. The Application filed under Section 5 of the Act is still pending.
2.3. Revision Petitioners / Plaintiffs have filed I.A. No. 88 of 2007 under Order XVI Rule 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 Order XVI Rule 1(2) C.P.C by a well considered order.
5. Order XVI Rule 1(2) C.P.C is an enabling provision for issuing summons to the Witnesses after the issues are settled. Order XVI Rule 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. Order 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). Order 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 Order XVI Rule 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 Defendant’s 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 Order XVI Rule 20 and 21 C.P.C, learned Senior Counsel invited the attention of the Court to the decision reported in 2002 (3) C.T.C. 551.
9. Order XVI Rule 21 C.P.C. stipulates that one party to suit can examine the other party as his witness or require him to produce documents. We may refer to Order XVI Rule 21 C.P.C which reads as follows:
…Rules in case of parties appearing as Witnesses : (1) When a party to a suit is required by any other party thereto to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as applicable.
(2) When a party to a suit gives evidence on his own behalf the Court may, in its discretion, permit him to include as costs in the suit a sum of money equal to the amount payable for travelling and other expenses to other witnesses in the case of similar standing….
A reading of Order XVI Rule 21 C.P.C makes it clear that one party to suit can examine the other party to give evidence or to produce any document. The provisions of Order XVI C.P.C shall apply to him as far as possible.
10. It is true that if a party refuses to voluntarily give evidence, he cannot be compelled to do so at the instance of the opposite party, as the Court is always at liberty to draw an inference against the party, who refuses to give evidence voluntarily. Order XVI Rule 20 C.P.C refers to the consequences of refusal of a party to give evidence when called on by Court. Learned Senior Counsel invited the attention of the Court to the observation in the decision reported in K. Leelavathi v. Mrs. Maheswari Sakthi Ganesan and Anr. 2002 (3) C.T.C. 551, wherein it was held as follows:
…In my considered opinion, the harmonious construction of Order XVI Rules 20 and 21 C.P.C makes it clear that the consequence of refusal of the party to give evidence, as provided under Order XVI Rule 21 C.P.C would follow only if the opposite party initiates an action, requiring the party to adduce evidence even though he refused to do so voluntarily, as the refusal of a party to give evidence would follow only after a summons is served on him at the instance of the opposite party….
No doubt, Order XVI Rule 21 C.P.C enables that one party to the suit can examine the other party as his witness or require him to produce documents and if the party refuses to examine himself when called on by Court, the Court can draw adverse inference.
11. Discussion under Order XVI Rule 21 C.P.C so far as this case is purely academic. Application in I.A. No. 88 of 2007 was not at all filed under Order XVI Rule 21 C.P.C, but filed only under Order XVI Rule 1(2) C.P.C. Since the Application was filed under Order XVI Rule 1(2) C.P.C, the discretion in the Impugned Order is confined to Order XVI Rule 1(2) C.P.C. The contention that the Impugned Order is not a well considered one cannot be countenanced legally or factually.
12. Learned Senior Counsel would submit that misquoting of provisions would not be a bar for granting appropriate relief to the party. It is well settled that procedural prescriptions are hand-maid and not mistress in the administration of justice. But where there is misquoting of provision and that procedural lapse thwarted fair hearing or caused prejudice to the other side, misquoting of provision certainly has relevance.
13. For the sake of completion, I proceed to consider the submissions made by the learned Senior Counsel invoking Order XVI Rule 21 C.P.C. If a party fails to appear as a Witness in his case, it would be open to the Court to draw adverse inference against him. Normally, it is not open to compel his presence by the issue of summons as witness. However, there is no total bar on the right of a party to call the other party to give evidence as a Witness. If there would have been such a bar, Order XVI Rule 21 C.P.C would not find place in the Code.
14. There may be situations where a Party may be called upon by another to give evidence as the latest witness. Only when good reasons are shown and for reasons to be recorded, the Court may exercise its discretion in favour of the party seeking permission of the Court to call the other party as a Witness. As of right, a party cannot summon the opposite party as its witness. It is for the Court to decide such necessity and whether such necessity exists to compel a party to give evidence in exercise of power under Order XVI Rule 21 C.P.C.
15. Observing that summoning the opposite party as its witness is unhealthy practice, which should be discouraged, in the decision reported in M.C. Ananda and Anr. v. M.C. Chikkanna and Anr. , the Court has held as follows:
…8. So, no doubt, this rule indicates that a party to the suit may be required and a party may be entitled to require any other party to the suit to give evidence, or to produce the documents and the Court below appears to have proceeded on mistaken notion that a party to the suit is not entitled subject to the power and permission of the Court to summon or to examine the opposite party. The expression “any other party thereto” is indicative of the party to the suit or to say party other than summoning the party which may include the opposite party. In other words, the Plaintiff may summon the defendant as a witness and require him, to produce the documents. Similarly, the defendant may summon the Plaintiff, as held by this Court in Syed Yasin v. Syed Shaha Mohd.Hussain A.I.R. 1967 MYS 788, but it is open to the Court, if in its opinion, summoning of the other party or opponent is likely to result in the abuse of the process of the Court, it may refuse as well. It is also no doubt true that ordinarily the practice of calling the opposite party has been held and considered to be unhealthy practice, as held by their Lordships of the Privy Council in Mahant Shatrugan Das v. Bawa Sham Das A.I.R. 1938 P.C. 59 and by the Division Bench of this Court in Mallangowda v. Gavisiddangowda A.I.R. 1959 MYS 194. The Division bench in paragraph 7 of the said report observed as under:
We have in unmistakable terms stated in this Court previously that this practice of calling the opposite party as a witness on his side should not be countenanced as it is not in the interests of justice
9. The discretionary power to summon has to be exercised in a judicial manner. When this practice has been condemned as abortive and the Privy Council in the case of Khushal Singh v. Secretary of State for India in Council ILR (1909) 31 All 659 has held it as objectionable and their Lordships laid it down that it ought never to be permitted as it is not in the interest of justice. It is open to Court to refuse to permit the summoning by a party of his opponent, as his own witness in support of his own case….
16. The proceedings before the Court being Enquiry under Section 5 of the Act, court below found that there was no necessity to examine Second Defendant on Plaintiffs’ side. Learned Judge has rightly observed that it is for the Second Defendant, who is the Petitioner in I.A. No. 184 of 2006 to decide as to whether he has to adduce oral evidence in Application under Section 5 of the Act. That order does not suffer from any error of law or serious infirmity.
17. The stage in which the Plaintiffs have filed I.A. No. 88 of 2007 is relevant to be noted. The Second Defendant has filed Application under Section 5 of the Act in June 2006 and the Plaintiffs have taken notice of the same on the same day. The Application was adjourned for more than five or six occasions for filing Counter. Only on 09.02.2007, the Plaintiffs have filed Counter and took time for arguing the matter. It is stated that lower Court has heard arguments of counsel for Second Defendant and posted the case on 20.02.2007 for hearing Plaintiffs’ arguments. Only on that date, i.e., on 20.02.2007, the Plaintiffs have moved I.A. No. 88 of 2007, requesting for issuance of summons to the Second Defendant for examining him on the question whether he had received suit summons or not. Per se that Application was filed under wrong provision perhaps only with a view to delay enquiry under Section 5 of the Act. The Court below has rightly dismissed that Application. This Revision is bereft of merits and is bound to fail.
18. For the foregoing reasons, the Impugned Order dated 21.02.2007 of the Additional Subordinate Judge, Chengalpattu in I.A. No. 88 of 2007 in O.S. No. 244 of 2005 is confirmed and this Civil Revision Petition is dismissed. No costs. Consequently, the connected M.P. No. 2 of 2007 is closed. Further, Additional Subordinate Judge, Chengalpattu is directed to expedite the enquiry in I.A. No. 184 of 2006 and dispose of the same in accordance with law.