N PRABU RAJ Vs. R SUDHARSANAM CHENNAI

JUDGEMENT

(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 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. 2. 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.) 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:-