Andhra HC (Pre-Telangana)
B. Venkat Ram Reddy vs K. Srinivas And Ors. on 1 March, 2005
Equivalent citations: 2005(2)ALD735, 2005(3)ALT674, AIR 2005 (NOC) 457 (AP), 2005 A I H C 2508, (2005) 2 ANDHLD 735, (2005) 3 ANDH LT 674
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. The petitioner is the 1st defendant in O.S. No. 41 of 2003 on the file of the learned Senior Civil Judge, Wanaparthy. It was filed by Respondents 1 to 3 herein. Respondents 4, 5 and 6 are Defendants 2, 3 and 4. The suit was filed for the relief of recovery of a sum of Rs. 6,50,000/-. The petitioner filed his written statement denying the liability. The trial of the suit commenced. The evidence of the plaintiffs' side was closed. So far as the defendants are concerned, the petitioner herein deposed as D.W.1. Though Respondents 4, 5 and 6 have filed their written statement, they have not chosen to depose as witnesses. The petitioner filed IA No. 26 of 2005 under Order 16 Rule 1(3) CPC with a prayer to summon Respondents 4, 5 and 6 as witnesses. The application was resisted and ultimately through its order, dated 18-2-2005, the Trial Court dismissed the I.A. Hence, this civil revision petition.
2. Sri Venu Gopal, learned Counsel for the petitioner, Submits that the necessity for the petitioner to file the I.A. arose on account of the fact that Respondents 4, 5 and 6, against whom the suit claim was made along with the petitioner, have colluded with the plaintiffs (Respondents 1 to 3) and obviously with a view to cover up the collusion, have desisted from deposing as witnesses. He submits that the summoning of Respondents 4 to 6 to depose as witnesses is necessary, so that the Court can appreciate the real facts.
3. The petitioner filed the I.A. to summon Respondents 4, 5 and 6 as witnesses. It has come on record that the said respondents have filed written statement but have remained ex parte.
4. The Trial Court had undertaken an extensive discussion with reference to the submissions made by the parties and the decided cases. It took the view that it is impermissible to summon the parties to suit as witnesses, but they have to be so summoned as Court witnesses.
5. Even assuming that no difference as such exists between a party witness and a non-party witness, in the context of summoning them to depose as witnesses before a Court, the party who intends to summon such witnesses has to specifically plead, the context in which the witnesses are to be examined. If the affidavit filed by the petitioner herein in support of the I.A. is examined in this context, it is evident that except stating that Respondents 4, 5 and 6 are to be examined 'to elicit real facts', no other purpose is stated. It is too difficult to accede to such general and vague request.
6. A party to the suit can be forced to depose as a witness at the instance of another party, only as a Court witness. Such persons cannot be compelled to take sides of any of the parties, contrary to their wish. An individual can be summoned as Court witness only for a definite and specific purpose. An individual cannot be summoned as Court witness and left in the hands of an intending party, so as to extract or elicit whatever he wants. The petitioner herein had already deposed as D.W.1 and closed his evidence. If he wants to support or buttress his case, it is for him to examine such witnesses as he intends to. He cannot compel an otherwise unwilling party to the suit to depose, nor can he be permitted to elicit any information from him, except by stating clearly in the affidavit filed in support of the I.A. Therefore, this Court is not inclined to interfere with the order under revision.
7. Learned Counsel for the petitioner has placed before this Court, an affidavit said to have been filed by the 4th defendant and contends that unless it is confronted to the 4th defendant (Respondent 6), there is every likelihood of the affidavit, being taken into account by the Court, on its face value. In this regard, it needs to be observed that when a person is very much a party to the suit and he chooses not to depose as a witness, he cannot be conferred with the luxury of swearing to an affidavit nor such an affidavit, unless the deponent thereof is made available for cross-examination, be treated as any evidence.
8. With the above observation, the civil revision petition is dismissed. There shall be no order as to costs.