Order 16 of cpc
basavaraj shiromani
(Querist) 31 March 2012
This query is : Resolved
A defendant filed an application under order 16 without mentioning any rule, requesting the court to issue notice to a public officer to produce a original document. my question is whether is there any irregularity in the application ? because in order 16 of cpc it is mentioned in all the rules that to issue summons but not word notice is used. Therefore what is the difference between notice and summons ? Is the application causes irregularity on the part of defendant who filed the application. Is there any possibility of rectifying the said application itself ?
R.K Nanda 
(Expert) 31 March 2012
If the defendant has also stated section
151 0f cpc in his application u/o 16 cpc
then court by its inherent powers can send summons to PO who is being called as witness
and witness is always summoned by court.
you are right that the word used in order 16 is summons and not notice.defendant can also amend his application with permission of court if necessary.
prabhakar singh
(Expert) 31 March 2012
Q..whether is there any irregularity in the application ?
ANSWER......NO!it is not required that any application should mention the law,only facts are reqired to be stated and not the law.
Q...word notice or summons?????
ANSWER.....Not so fatal in my view,it may be taken to understand summons as it is difference of nomenclature.
Q...Is there any possibility of rectifying the said application itself ?
ANSWER.....Yes,by requesting amendment u/s151 CPC or by not pressing the current one and moving a fresh one with correct terms.
basavaraj shiromani
(Querist) 31 March 2012
Thank you Prabhkarjee. your ANSWER regarding the question -not pressing the present application, he may file fresh application. But one thing is there any procedure for amending the pleadings of any interim application. In my view facts pleaded in the interim application cannot be amended U/s 151 of cpc by using inherent powers.
with regards.
prabhakar singh
(Expert) 01 April 2012
I have got several amendment orders under section 151,even amendment in amendments applications were got allowed.Suppose you file a substitution application in a case where some mistake has crept which gets noticed after expiry of limitation period,then you can not opt the option of not pressing it,certainly you need amendment there in,would pray court to invoke section 151 as there is no rule laid to amend applications,rule is laid to amend only pleadings ,then for ends of justice,section 151 can be invoked.
venkatesh Rao
(Expert) 01 April 2012
With due respect and accepting the advice of Prabhakar at its face value, I would like to add that thre is no need of any amendment at all. The court sometimes has to mould the relief on going through the prayer in the application. Non mention is not so fatal as wrong mention. Mentioning of provision of law in the applications is to felicitate quick reference to avoid unnecessary loss of courts time. It is not a rule of law but a rule of prudence to mention the provisions.
niranjan
(Expert) 01 April 2012
No problem,the court will issue summon under O.16 rule 6 to produce the document.
