Andhra Pradesh High Court - Amravati
B Nagabhushanam vs Thanikonda Naresh on 12 February, 2021
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
Civil Revision Petition No.37 of 2021
ORDER:
Aggrieved by the order dated 09.12.2020 in I.A.No.83/2020 in O.S.No.124/2012 passed by the learned IV Additional District Judge, Tirupathi, the instant C.R.P. came to be filed by the petitioners/plaintiffs.
2. The plaintiffs filed suit for specific performance of agreement of sale dated 21.03.2009, said to be executed by the defendants 1 & 2. According to the plaintiffs, as per the terms of Ex.A5-conditional agreement, they have paid interest regularly to the defendants 1 & 2 and they received the payment and subsequently transferred the property to 3rd defendant in violation of the terms of the agreement. Originally the plaintiffs filed suit against the defendants 1 & 2 seeking decree of specific performance of agreement of sale. Subsequently they got added the 3rd defendant as a party to the suit on the plea that the defendants 1 & 2 clandestinely transferred the suit property in favour of 3rd defendant and remained ex parte in the suit.
3. The 3rd defendant is contesting the suit.
4. While so, the plaintiffs filed I.A.No.83/2020 under Order XVI Rules 1 & 7 r/w Section 151 CPC seeking to summon the 1st defendant to enable the plaintiffs to examine as a witness on their behalf to prove the payment of interest and also to confront Ex.A5 to him. The respondent/3rd defendant filed counter and opposed the 2 petition on the main ground that the petition was filed belatedly after closure of the evidence and there were no valid reasons to allow the petition.
5. The trial Court agreed with the contention of the respondent/defendant No.3 and having observed that the plaintiffs have not explained the reasons as to why they have not taken steps to summon the 1st defendant at the early stage of the suit, and that even though the Court is empowered to summon and examine any person including the party to the suit, that should be done where it feels that his evidence is required to resolve the dispute between the parties and there was no such exigency in the instant case, dismissed the application, Hence, the C.R.P.
6. Heard Sri E.V.V.S.Ravi Kumar, learned counsel for petitioners, and Sri Y.V.Anil Kumar, counsel for the respondents.
7. It is to be noted that the examination of an opposite party, who did not contest the suit or contested but did not give evidence on his own, as witness of the other party, though appears to be unusual but not uncommon. There may be circumstances where one party to the proceedings might played a key role as a witness to a document, which confers some right on the other party or knows certain facts, which are helpful to advance the cause of other party. In such instances, if the first party though arrayed as a party in the proceedings either remains ex parte or did not enter the dock to give evidence on his own, the second party will not get an opportunity to 3 cross-examine the first party to establish his case. In such instances, the second party can establish his case by two modes, firstly requesting the Court to draw an adverse inference against the first party, who remained ex parte and did not traverse the pleadings of second party. The second mode is to summon the first party as a witness on his behalf to establish his case.
8. Then the important aspect is whether the procedural law permits a party to a suit to summon other party, who either remained ex parte or though contested did not enter the witness box on his own behalf.
Order XVI Rule 21 CPC paves the way in this regard. It reads thus:
21. Rules as to witnesses to apply to parties summoned: Where any party to a suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so for as they are applicable.
Like the other Rules in the CPC, this Rule was also subjected to High Court amendments. The relevant amendments are as follows:
Andhra Pradesh. - Same as in Madras.
Madras - Same as in Calcutta with the addition of marginal note "Rules in the case of parties appearing as witnesses."
[Vide GOMs.No.402 Law (Genl.), dated 4th February, 1936; P.Dis. No.98 of 1936,] Calcutta. - In Order XVI, for rule 21, substitute the following rule, namely; -
21. (1) When any party to a suit is required by any other thereto to give evidence, or to produce a document, the provisions as to witnesses shall apply to him so far as applicable.
(2) When any party to a suit gives evidence on his own behalf, the Court may in its discretion permit him to include as costs in the suit a sum of equal to the amount payable for travelling and other expenses to the other witnesses in the case of similar standing."
[Vide Notification No.15264-G, dated 11th November, 1927,] 4
9. Thus, in essence, the A.P. High Court amendment of Rule 21 would depict that when any party to a suit is required by other party to give evidence or to produce a document, the provisions as to witness shall apply to him so far as applicable. It indicates that there may be circumstances where one party to a suit may require other party to give evidence on his behalf. In V.K.Periasamy v. D.Rajan1 the facts are more or less similar to the present case. The plaintiff therein filed suit for declaration of his right to take water from the suit wells and to restrain the defendants from interfering with such rights. According to the plaintiff, he applied to P.W.D. and Revenue Department for permission to lay a pipeline through the Poramboke lands and he got the consent of the defendants 1, 2, 3, 5 & 6. The defendants 3 & 4, who are the contesting defendants, also gave oral consent but retreated. Hence, the suit. It appears the 4th defendant alone filed written statement and others remained ex parte.
The plaintiff in order to prove a Sale Deed dated 16.11.1994, in which the 1st defendant appeared as witness and also to prove the letter addressed to the Executive Engineer, P.W.D, wherein among others, the 1st defendant endorsed no objection, wanted to examine 1st defendant as his witness and filed a petition and the same was dismissed by the trial Court. In that context, the High Court of Madras observed thus:
"The provision in the C.P.C. regarding examination of a party as a witness is laid down in Order 16, Rule 21, which reads as follows:1
MANU/TN/0150/2001 = AIR 2001 Mad 410 5 "Where any party to a suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as they are applicable."
Therefore, the C.P.C. itself does contemplate the situation where a party may be required to give evidence or to produce a document. The word "requires" itself shows that the said witness is not coming forward voluntarily but has been called upon to give evidence." Ultimately the revision petition filed by the plaintiff was allowed with the observation that if the 1st defendant was examined on behalf of the plaintiff, he would be bound by the evidence elicited from the said witness. In terms of Order XVI Rule 21 CPC, the High Court of Karnataka also expressed similar view in its decision in M.C.Ananda v. M.C.Chikkanna2. Thus, the above jurisprudence would expound that a party in a suit or proceedings can seek to summon the other party as his witness.
10. In the instant case also, the plaintiffs seek to examine 1st defendant, as a witness on their behalf, to establish that the defendants 1 & 2 executed the conditional agreement (Oppudala Patram) in favour of the plaintiffs on 21.03.2009 agreeing to execute a regular registered Sale Deed in their favour in an extent of Ac.5.16 ½ cents. In pursuance of the Sale Deed dated 29.05.2009 and as per the terms of the aforesaid conditional agreement, the plaintiffs have paid the interest to defendants 1 & 2 and in spite of receiving the said amount, they transferred the suit property in favour of 3rd defendant and to establish the above facts, the plaintiffs need to examine 1st defendant 2 MANU/KA/0229/2001 = AIR 2001 Kant 139 6 as a witness on their behalf. The defendants 1 &2 remained ex parte as stated supra. The plaintiffs can establish their case either by requesting the Court to draw an adverse inference against the defendants 1 & 2 for their not contesting the suit, which amounts to admitting the plaintiffs' case or by summoning the 1st defendant to examine as their witness. The trial Court dismissed the petition on the main ground that it was a belated application.
11. Having regard to the totality of the circumstances, particularly, the valuable rights of the plaintiffs are at stake, I am unable to be convinced with the reason shown for dismissal. It should be noted that by mere delaying the proceedings, the plaintiffs will not gain any advantage as they being the suitors, will get the property only if they diligently and quickly prosecute the suit. Added to it, under law the plaintiffs are entitled to summon the 1st defendant.
12. It should be noted that the petitioners/plaintiffs have filed the petition under Order 16 Rules 1 & 7 CPC, but not under Rule 21. However, it is trite law that mere wrong quoting or non-quoting of the provision of law is not a ground to deny the relief, if a party indeed deserves.
13. Accordingly, this Civil Revision Petition is allowed and the impugned order is set aside and I.A.No.83/2020 is allowed, and the trial Court is directed to fix a date and summon the 1st defendant in the suit to be examined as a witness on behalf of the plaintiffs. Needless to emphasise the plaintiffs shall be bound by his evidence. 7
As a sequel, interlocutory applications, if any pending, shall stand closed.
__________________________ U. DURGA PRASAD RAO, J 12.02.2021 MVA