Andhra Pradesh High Court - Amravati
Patnam Venkata Ramana vs B.Ramaiah on 14 February, 2024
APHC010430852023
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
(Special Original Jurisdiction)
[ 3311 ]
WEDNESDAY ,THE FOURTEENTH DAY OF FEBRUARY
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE MS JUSTICE B S BHANUMATHI
CIVIL REVISION PETITION NO: 2125 OF 2023
Between:
PATNAM VENKATA RAMANA ...PETITIONER(S)
AND
B RAMAIAH ...RESPONDENT(S)
Counsel for the Petitioner(s):SRI. V V N NARASIMHAM
Counsel for the Respondents:
The Court made the following:
CRP No.2125 of 2023
2
THE HON'BLE MS JUSTICE B.S.BHANUMATHI
CIVIL REVISION PETITION No.2125 of 2023
ORDER:
This revision petition is filed under Article 227 of the Constitution of India against the order dated 13.07.2023 in dismissing I.A.No.272 of 2023 in O.S.No.106 of 2015 on the file of the court of Principal Senior Civil Judge, Kadapa filed by the plaintiff under Order XVI Rule 1 CPC to summon 1) D.C.Penchalaiah, 2) S.Subrahmanyam, both the attestors of the Will, marked as Ex.A.6.
2. The plaintiff filed the suit for declaration of right and title over the schedule property. After completion of the evidence, the plaintiff filed petition to reopen the evidence and get himself recalled for the purpose of marking of the will and thereby it was marked as Ex.A.6. When the matter stood for cross examination of PW.1 after recalling, immediately, this petition is filed to summon the attestors to Ex.A.6, since law obligates a person relying on a Will to examine at least to prove the same.
3. However, the petition was opposed by the respondent by filing counter stating that the petitioner ought to have produced the attestors instead of filing the petition and the affidavit annexed to the petition is devoid of information as to whether the petitioner made any such effort to bring the attestor. The respondent stated about the validity of the Will which is not CRP No.2125 of 2023 3 necessary to contest the petition filed under Order XVI Rule 1 CPC.
4. After hearing both parties, the trial Court dismissed the petition stating that the suit was posted for arguments and at that time, PW.1 got recalled for the purpose of marking of the documents and on recall of PW.1, Ex.A.6 was marked and subsequent thereto, this petition was filed without stating whether he had made any efforts to examine the witness and inspite of such efforts he was not able to produce the witnesses. It is further observed that it is the duty of the petitioner to produce the witnesses and without making any such efforts to produce the witnesses, the petition to summon the witness cannot be filed.
5. Aggrieved by the order, this petition is filed.
6. Inspite of service of notice to the counsel for the respondent/defendant before the trial Court, no appearance has been made. Heard the learned counsel for the petitioner.
7. The leaned counsel for the petitioner submitted that the trial Court failed to observe that it is the duty of the petitioner to prove the Will by examination of at least one of the attestors to it and, therefore the petition is filed, however on frivolous ground that the petitioner had not shown that he made effort to call the witness, the petition was dismissed. CRP No.2125 of 2023 4
8. Order XVI Rule 1 and 1 A CPC reads as follows:
Summoning and attendance of witnesses List of witnesses and summons to witnesses.-- 1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court.
(2) 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.
(3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.
(4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the Court in this behalf.
1A. Production of witnesses without summons.--Subject to the provisions of sub-rule (3) of rule 1, any party to the suit may, without applying for summons under rule 1, bring any witness to give evidence or to produce documents.
9. Order XVI Rule 1 A CPC enables a party to the suit to bring any witness to give evidence without applying for summons under Rule 1. It does not disable a party to a suit to apply for summons under Order XVI Rule 1 CPC unless effort is CRP No.2125 of 2023 5 made to bring the witness and only on failure to bring the witness, to apply for summons. At no stretch of imagination, interpretation of Order XVI Rule 1 CPC, the said analogy can be drawn. Thus, the trial Court committed a serious error in applying Order XVI Rule 1 CPC to the factual situation in the matter before it. Therefore, the impugned order is liable to be interfered in this petition.
10. In the result, the petition is allowed. The order dated 13.07.2023 in I.A.No.272 of 2023 in O.S.No.106 of 2015 on the file of the court of Principal Senior Civil Judge, Kadapa is set aside. The petition in I.A.No.272 of 2023 is allowed. The trial Court is directed to take steps inconsonance with the order of this Court. It is made clear that the witness summoned is not that of Court but is to be considered as a witness called on behalf of the plaintiff.
Miscellaneous Petitions, if any pending, in this Civil Revision petition, shall stand closed.
___________________________ JUSTICE B.S.BHANUMATHI Date : 14-02-2024 PNV