Andhra HC (Pre-Telangana)
Gara Padmanabham vs Neti Narasimha Sastry And Others on 18 September, 2000
Equivalent citations: 2000(6)ALD446, 2000(6)ALT364, AIR 2001 ANDHRA PRADESH 43, (2000) 6 ANDHLD 446, (2000) 6 ANDH LT 364, (2001) 1 RECCIVR 609
ORDER
1. The petitioner is the plaintiff in OS No.5 of 1997 on the file of the Additional District Judge, Ongole. It was filed for specific performance of an oral agreement. He filed this revision petition aggrieved by the orders passed by the trial Court in IA No.105 of 2000 wherein the Court below refused to summon one Y. V. Seshaiah a practising Advocate, as Court witness.
2. Heard the learned Counsel of both the sides.
3. From the factual background of the case, it revealed that the petitioner herein.
i.e., the plaintiff in the suit was orally inducted into the suit schedule premises some time in the year 1993. The respondents initiated proceedings for the eviction of the petitioner/plaintiff from the suit premises and ultimately succeeded and taken the possession of the property. Pending eviction proceedings, the petitioner filed the suit for specific performance of the oral agreement of sale entered into by the parties in July, 1993. in the pleadings, the petitioner categorically stated that he met one Y.V. Seshaiah Counsel for the respondent during the pendency of the eviction proceedings to settle the matter amicably and held him to purchase the suit schedule premises. On that, himself and Mr. Y.V. Seshaiah had been to Hyderabad where (he first respondent is residing and Mr. Y. V, Seshaiah negotiated the transaction with the first respondent and-as per the version of the petitioner, the first respondent agreed to sell the property in question for Rs. 6,50,0007-. It is his further case that he paid Rs. 1,000/- as an advance in the presence of other witnesses to the first respondent. The petitioner perhaps having come to know that the first respondent is trying to enter into agreement of sale for the same property with the second respondent, he got issued legal notice calling upon the first respondent to implement the oral agreement entered into and when the first respondent gave reply denying the oral sale through Sri Y.V. Seshaiah, he filed the suit for specific performance of the oral agreement of sale.
4. In the written statement, except denying the oral agreement pleaded by the petitioner, he did not take any stand with regard to the meeting of the petitioner in the presence of Y. V. Seshaiah. But in the witness box he categorically admitted that the petitioner along with Y.V. Seshaiah approached him and requested him to sell the building. But his case is as he has entered into agreement of sale with the second respondent, already the question of selling the house again to the petitioner does not arise. The first respondent for the reasons best known to him changed Y.V. Seshaiah as his Counsel who was representing throughout the eviction proceedings and also for giving reply, engaged some other Counsel.
5. After evidence of the parties is I over, the petitioner filed this impugned application to summon Y.V. Seshaiah as a Court witness under Order 16, Rule 14 CPC. The trial Court dismissed the said application by taking the view that under Section 126 of the Evidence Act no advocate can be called as witness without permission of his client and also on the ground that though the petitioner has knowledge from the beginning about the factum of negotiation by Y.V. Seshaiah, he did not choose to examine him earlier and he filed the petition at the stage of arguments seeking examination of Sri Y. V. Seshaiah as a Court witness. From the order it is seen that the Court had an obsession that the man who is sought to be examined is an Advocate and dismissed the application. The ground of rejection is that no Advocate can be called to give evidence against the interest of his client. I have no hesitation to hold that Mr. Y.V. Seshaiah did not act as an Advocate while negotiating the sale transaction and the same was admitted by the first respondent himself. Hence the question of invoking the provision of Section 126 of the Indian Evidence Act does not arise.
6. The other ground given by the Court below was that the petitioner having knowledge of the factum of negotiation by Y.V. Seshaiah and having failed to summon him as witness, he cannot approach the Court for exercising discretion vested in him under Order 16, Rule 14 CPC for summoning the witness as Court witness. I have seen the affidavit filed by the petitioner. He categorically stated that Mr. Y. V. Seshaiah who negotiated the transaction was the Counsel for the respondent till reply was given and hence it is not safe for him to summon the said Advocate as his witness for supporting his case. I feel that the petitioner has properly explained to the Court under what circumstances he was not willing to summon the Advocate as his own witness. If the said Advocate is summoned as witness of his own to support his case, he will lose the chance of cross examining the witness. Hence to my mind he has exercised his discretion in not summoning the Advocate as his witness. From the evidence of both the partie, it is evident that Mr. Seshaiah approached the first respondent requesting him to alienate the property in favour of the petitioner; while it is the case of the petitioner that the defendant-respondent agreed to sell the property for consideration of Rs.6,50,000/- in the presence of Y.V. Seshaiah, it is the case of the respondent that he never told them that he has already entered into an agreement with the second respondent and hence the question of selling the property to the petitioner does not arise. A suggestion was made to the second respondent that the registered sale-deed was executed after the suit for specific performance was filed. A suggestion was also made that the first respondent changed his Counsel as there was collusion between him and Y. V. Seshaiah and engaged another advocate as his Counsel. Of course this suggestion was denied by the respondent. From the factual narration, it is seen that Mr. Y. V. Seshaiah played some role in this transaction and result of the suit depends upon the testimony of this witness one way or the other. Hence he being a crucial witness in this case and as the petitioner gave sufficient reasons for not summoning him as his witness, he brought to the notice of the Court that Mr. Y.V. Seshaiah is important witness in the transaction and he may be summoned as Court witness exercising the discretion vested in it under Order 16, Rule 14. It is well settled principle that discretion vested in the Court under Order 16, Rule 14 can be exercised either by the Court suo motu or at the instance of the party. The Court has not exercised its discretion properly taking the totality of the circumstances and usefulness in summoning the witness for arriving at just decision. In fact, this Court in P. Subrahmanyam Chetty v. Katari Ellappa Reddy, 1988 (1) ALT 279, held that the power is obviously intended in the interests of justice and is aimed at clarifying certain situations and remove ambiguities and fill up lacuna and in furtherance of justice. The parties may refrain from summoning a crucial witness in the event of their apprehension of full fledged support and in such a situation the Court may summon such person to give evidence to arrive at the correct factual picture and this witness is called a 'Court witness'. Order 16, Rule 14 visualizes the initiative by the Court only to examine any person and it is for the Court to consider of its own accord, the necessity of invoking power under this rule without propulsion or application by the parties. The exercise of this power is in the nature of 'self starter' without extraneous pressure or pull.
7. This judgment was followed in another decision by this Court in G. Balaiah v. G Ramachander, . Thus, it is revealed that the Court is empowered to exercise its discretion even to fill up the lacunae that are found in the case either to clarify the situation or to remove the ambiguity in furtherance of justice. Accordingly this ground also has no locus to stand.
8. The learned Counsel for the first respondent strenuously argued that the Advocate cannot be compelled to give evidence, particularly when the case is at the stage of argument and failure to examine the witness proposed to be examined though he has knowledge from the beginning of the case. The judgment referred to above will answer this contention.
9. The learned Counsel for the first respondent raises one more contention to the effect that when once the Court exercises discretion by giving cogent reasons, the High Court silting in rvisionary jurisdiction cannot interfere with the order. I have already given my reasons pointing out the error committed by the Court below in exercising the jurisdiction vested in it in furtherance of justice. That is why, I am forced to interfere with the judgment of the Court below.
10. Mr. Krishna Mohan appearing on behalf of Mr. M. V.S. Suresh Kumar relied on a judgment of the Supreme Court in Biswanath Rai v. Sachhidananda Singh, . This matter has arisen under Representation of People Act, 1951 and in my view, the said judgment is more in favour of the petitioner than the respondent himself. In this case, their Lordships of the Supreme Court categorically observed that when an application is made against a party, it is for him to prove that there is no truth in the allegation in that behalf of the publication of pamphlet. Where a witness of one party deposes that a letter written by one 'S' to him has been received by him, the burden lies on the other side to prove its allegation that the letter was not written by 'S' or that it was written in collusion between 'S' and the witness. Viewing from that angle, the case of the petitioner herein is that agreement of sale was entered into in the presence of Mr. Y. V. Seshaiah. If that is the case and when the respondent agreed that the petitioner met him along with Mr. Seshaiah the burden lies on him to show that no agreement was entered into between the parties in the presence of Mr. Y. V. Seshaiah. Hence to my mind, to prove his case that he told Y.V. Seshaiah, as well as the petitioner that as he entered into agreement with the second respondent already he cannot alienate the property to the petitioner by examining Mr. Y.V. Seshaiah who is no other than his Counsel, till reply notice was given to the notice given on behalf of the petitioner seeking execution of the sale deed pursuant to the oral agreement of sale. The respondent except denying that he had not entered into any agreement with the petitioner, he did not choose to examine Y. V. Seshaiah as his witness. One this ground also I am of the opinion that the Court erred in not exercising the discretion judiciously to summon Y. V. Seshaiah as Court witness to find out the truth or otherwise of the rival contentions of the parties in the interest of justice. Hence, I set aside the order of the trial Court and direct the Court below to summon Y.V. Seshaiah as Court witness and give opportunity to both sides to cross examine him to prove their own case.
11. Since the suit is of the year 1997, and the matter has been posted for arguments, the trial Court is directed to dispose of the same by end of October, 2000.
12. The civil revision petition is allowed accordingly. No costs.