Telangana High Court
Pulusu Kalavathi vs Raparthi Pandu Pandaiah on 27 February, 2025
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
C.R.P.NO. 3065 OF 2024
ORDER:
This Civil Revision Petition has been filed under Article 227 of the Constitution of India against the order dated 01.08.2024 in I.A.No.163/2024 in O.S.No.37/2009 on the file of the Senior Civil Judge, Suryapet and to pass such other order or orders in the interest of justice.
2. Brief facts leading to the filing of the present Civil Revision Petition are that the suit was filed for specific performance of an agreement of sale and the Plaintiff No.1 has filed the suit on the ground that the defendants have entered into an agreement of sale with him and also with defendant No.5 and had received the sale consideration, but refused to honour the same by executing the sale deed. It was stated in the suit that the defendant No.5 was not interested to join him as plaintiff and therefore, he has made him as a defendant in the suit. The defendant No.5 remained ex-parte. The other contesting defendants have filed their written statement. Thereafter the petitioner has filed I.A.No.163 of 2024 seeking to summon the defendant No.5 to give evidence 2 TMD,J CRP.No. 3065 of 2024 in the suit to elicit the truth about the execution of agreement of sale. The defendants No.1 to 4 and 6 to 10 have objected to the same and submitted that the Court cannot compel the defendant No.5 to appear before the Court. It is submitted that the defendant No.5 has chosen to remain ex-parte and therefore, the Court has to draw adverse inference, but should not summon the defendant No.5 to give evidence.
3. In support of his contentions, the learned counsel for the petitioners place reliance upon the judgments of this Court in Loyola Public School Society, Secunderabad Vs. P.Anil Kumar and Others 1 and also in the case of B.Venkat Ram Reddy Vs. K.Srinivas and Others 2.
4. Learned counsel for the respondents, however, submitted that the defendant No.5 has entered into agreement of sale along with the plaintiffs and therefore, he is a proper and necessary party to give evidence and accordingly, he had rightly been called/summoned by the Court to give evidence. In support of his contentions, he placed reliance upon the decisions of this Court in the case of National Insurance Co.Ltd., and Others Vs. M/s.Susru Sea 1 2008 (1) ALD 8 2 2005 (2) ALD 735 3 TMD,J CRP.No. 3065 of 2024 Foods 3 and also in the case of Kosuru Kalinga Maharaju Vs. Kosuru Kaikamma 4 and in the case of Pushpaben Champaklal Shah and Another Vs. Rikhadev Tirthram Sharma and Others 5.
5. Having regard to the rival contentions and the material on record, this Court finds that the petition has been filed under Order XVI Rule 12 r/w 151 C.P.C. However, the said provision relates to "Procedure if witness fails to appear". In this case, the above stage has not yet arrived. The appropriate provision is Rule 7A which reads as under:
The Court may, on the application of any party for the issue of a summons for the attendance of any person, permit such party to effect service of such summons on such person and shall, in such a case, deliver the summons to such party for service.
6. From the literal reading of the above, it is clear that the plaintiffs also can seek issuance of summons to defendant No.5, who remained ex-parte in spite of service of notice. The trial Court has accordingly allowed the same. 3 2005 (1) APLJ. 71(HC) 4 1999 SCC OnLine AP 635 5 2005 SSC OnLine Guj 190 4 TMD,J CRP.No. 3065 of 2024
7. The judgments relied upon by the learned counsel for the petitioners are distinguishable on facts and further even in those judgments it was held that even if the witness summoned is unwilling to give evidence on behalf of the plaintiffs, he can be examined as a Court witness.
8. In view of the same, this Court does not find any merit in this Civil Revision Petition and is liable to be dismissed.
9. Accordingly, this Civil Revision Petition is dismissed. There shall be no order as to costs.
10. Miscellaneous petitions, if any, pending in this Civil Revision Petition, shall stand closed.
____________________________ JUSTICE T.MADHAVI DEVI Date: 27.02.2025 bak 5 TMD,J CRP.No. 3065 of 2024 THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI C.R.P.NO. 3065 OF 2024 Dated: 27.02.2025 bak