Telangana High Court
M/S Narne Estates Pvt Ltd vs N Gopal Naidu And 4 Others on 9 June, 2025
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE DR. JUSTICE G. RADHA RANI
CIVIL REVISION PETITION Nos.1009 & 1018 of 2023
COMMON ORDER:
C.R.P.No.1009 of 2023 is filed by the petitioner - plaintiff aggrieved by the order dated 04.07.2022 passed in I.A.No.106 of 2022 in O.S.No.8 of 2010 by the learned Principal District Judge, Bhongir.
2. C.R.P.No.1018 of 2023 is filed by the petitioner - plaintiff aggrieved by the order dated 04.07.2022 passed in I.A.No.105 of 2022 in O.S.No.8 of 2010 by the learned Principal District Judge, Bhongir.
3. A common order was passed in both the I.A.s.
4. I.A.No.105 of 2022 is filed under Section 151 of CPC to re-open the case of the petitioner - plaintiff and I.A.No.106 of 2022 is filed under Order XVI Rule 2 read with Section 151 of CPC to summon the defendant No.1 to subject himself for cross-examination by the petitioner - plaintiff.
5. The Assistant Manager of the petitioner - plaintiff filed an affidavit in support of both the petitions stating that he was working as Assistant Manager in Lands Department in plaintiff company, by name, Narne Estates. O.S.Nos.8 and 2 Dr.GRR,J CRP Nos.1009 & 1018 of 2023 33 of 2010 were clubbed together and a joint trial was conducted in O.S.No.8 of 2010. The case was at the stage of arguments. The respondent No.1 - defendant No.1 had purchased the suit schedule property from the funds of the company, but was falsely claiming ownership and possession over the said property. Infact the respondent No.1 - defendant No.1 taking undue advantage of his post of paid director misappropriated the funds of the plaintiff company and misrepresented to the pattedar of lands and got executed various documents in his individual name, though the properties were purchased by the plaintiff company. The respondent No.1 - defendant No.1 deliberately did not choose to appear before the Court to adduce evidence and subject himself for cross-examination. He was hale and healthy, but wantonly not entered the witness box to avoid crucial aspects to be elicited from him in cross-examination. The respondent No.1 - defendant No.1 on 03.03.2022 made his appearance in a batch of criminal cases filed against him vide C.C.Nos.624 of 2006 to 632 of 2006 on the file of the Junior Civil Judge, Bhongir. Infact the petitioner - plaintiff intended to cross-examine the respondent - defendant No.1, as there were certain important aspects that would need to be brought to the notice of the Court through cross-examining him, but it could not be done, as he did not enter the witness box. When orally enquired, it was earlier informed that respondent - defendant No.1 was suffering with ill-health and was 3 Dr.GRR,J CRP Nos.1009 & 1018 of 2023 bed ridden and was not appearing before the Court. But the said aspect was found to be false, as he appeared before the Court on 03.03.2022 in the batch of criminal cases.
5.1. The petitioner contended that the cross-examination of respondent - defendant No.1 was essential to prove certain aspects pertaining to the case of the petitioner - plaintiff. No hardship would be caused to the respondents - defendants if the petition was allowed as prayed for, by summoning the respondent - defendant No.1 for cross-examination. On the other hand, if the said petition was not allowed, the petitioner - plaintiff would be put to grave injustice as real facts would remain in dark without the crucial witness i.e. defendant No.1 not being cross-examined. As such, prayed to summon the defendant No.1 - Mr. N.Gopal Naidu to subject himself to the Court for cross-examination by the petitioner - plaintiff.
6. The respondent - defendant No.1 filed his counter denying that he deliberately did not choose to appear before the Court to adduce evidence. He contended that his health was badly broke down and he was not in a position to move from the bed even for nature calls, and he was on diapers. In the said circumstances, he was not able to give his evidence and did not appear himself 4 Dr.GRR,J CRP Nos.1009 & 1018 of 2023 before the Court. The same was due to his ill-health and bad condition of his body. He admitted that on 03.03.2022, he made his appearance in a batch of criminal cases filed against him vide C.C.Nos.624 of 2006 to 632 of 2006 on the file of the Principal Judicial First Class Magistrate, Bhongir after two and half years, as his presence was made compulsory. On such conditional order, respondent - defendant No.1 made his appearance in a car and he was not called into the Court Hall, but the attender of the said Court saw him in the car and informed the same to the Presiding Officer. The Presiding Officer on hearing the condition of respondent - defendant No.1 directed the attender of the said Court to see him. Thus, he made his appearance before the said Court and the same could not be taken as a ground to file the present petition to summon him for cross-examination. He stated that infact he was not in a position to speak properly and not in a position to face the cross-examination. Any witness could not be compelled to give evidence before the Court of Law. As such, the petition to summon him was not maintainable and the same was liable to be dismissed. 6.1. He further contended that the petitioner - plaintiff has to establish his case by adducing oral and documentary evidence, but should not depend on the evidence of the respondent - defendant No.1. Moreover, if the payments were made from the account of the petitioner - plaintiff company, certainly they could file the relevant 5 Dr.GRR,J CRP Nos.1009 & 1018 of 2023 bank statements to establish their case but could not depend on the evidence of the respondent - defendant No.1. He further stated that the petitioner - plaintiff was very much aware of the health condition of the respondent - defendant No.1, as he was none other than the own brother of the Chief Managing Director of the petitioner - plaintiff company, as such prayed to dismiss both the revision petitions.
7. The learned Principal District Judge, Bhongir on hearing both the learned counsel appearing before him, observed that it was not an exceptional case to summon the opposite party i.e. defendant No.1 and to re-open the suit for the purpose of his cross-examination. It was a settled law that when a party to the suit does not examine himself as a witness, adverse inference can be drawn against him under Section 114 of the Indian Evidence Act, 1872 and as such dismissed both the petitions.
8. Aggrieved by the said dismissal of his applications, the petitioner - plaintiff preferred these revisions.
9. Heard Sri B.Raveendra Babu, learned counsel for the petitioner - plaintiff and Sri N.Chaitanya Krishna Reddy, learned counsel for the respondent No.3. 6
Dr.GRR,J CRP Nos.1009 & 1018 of 2023
10. Notices on respondents 1, 2, 4 and 5 were returned un-served, due to insufficient address on respondent No.1 and on respondents 2, 4 and 5 as "left without instructions". As such, notices were ordered to be served on the above respondents through the counsel representing them before the trial court and the learned counsel for the petitioner - plaintiff filed memo vide U.S.R.No.42029 of 2023 in proof of service of notice upon the counsel on record representing the above respondents before the trial court along with their acknowledgments.
11. Learned counsel for the petitioner - plaintiff contended that the respondent No.1 being paid director of the company taking advantage of his position and taking advantage of General Power of Attorney (for short "GPA") documents in his name, fraudulently got executed sale deeds in respect of the lands purchased by the petitioner company. The company having paid the entire sale consideration to the pattedars by way of cheques and demand drafts, obtained registered GPA documents in respect of the suit land in favor of the Managing Director of the petitioner company. The petitioner company basing on the GPA documents, on the advice of financial consultants, nominally executed sale deed in favor of respondent No.1 in respect of the suit land in the capacity of the Director of the company in a fiduciary capacity. The respondent No.1 betraying the trust, abused his position and taking advantage of registered sale deeds in his name, executed 7 Dr.GRR,J CRP Nos.1009 & 1018 of 2023 nominal registered sale deeds in favor of respondents 2 to 4 in respect of the suit land. Infact, the suit lands formed part of Sector V of the layout of East City obtained and developed by the petitioner company. The CID Police also registered a case against respondent No.1 vide Crime No.04 of 2014 on the ground that the respondent No.1 fabricated several sale deeds pertaining to the lands of the petitioner company. The respondent No.1 - defendant No.1 filed his written statement, but he did not choose to appear as a witness, obviously to avoid questioning by the petitioner on various aspects of fraud played by respondent No.1 while he was a paid director and after his exit from the petitioner company. The criminal cases and various fraudulent acts committed by respondent No.1 were already brought on record by way of documents before the Court. However, it was necessary to contradict respondent No.1 with the said documents already filed before the Court to elicit truth. There was no prohibition in CPC from examining the adverse party as a witness. The trial court committed an error in coming to the conclusion that only in exceptional cases, a party can summon the adverse party as a witness. The Trial Judge failed to consider that there were several exceptional circumstances that would require the cross-examination of respondent No.1 and prayed to allow both the revision petitions by setting aside the common order 8 Dr.GRR,J CRP Nos.1009 & 1018 of 2023 passed by the learned Principal District Judge, Bhongir in both the I.A.Nos.105 and 106 of 2022 in O.S.No.8 of 2010 dated 04.07.2022.
12. Learned counsel for respondent No.3 on the other hand contended that the suit was filed seeking the reliefs of declaration of title, cancellation of sale deeds and for the perpetual injunction by the plaintiff. The burden would lie upon the plaintiff to prove the facts averred in the plaint, but not through defendant No.1. The sale deeds were executed by defendant No.1 in his personal capacity. The company never executed the sale deeds. The case was reserved for judgment. The petitioner - plaintiff obtained stay order in this Court in March, 2023 and was dragging on the proceedings. The trial court rightly dismissed the applications placing reliance upon the judgment of the High Court of Delhi in Dr.Amitabha Sen v. M/s. Sports World International Limited and Others 1 . The plaintiff could take advantage and could draw adverse inference if the defendant No.1 being a party to the suit was not examined before the court. There was no illegality in the order passed by the trial court to set aside the same and prayed to dismiss both the revision petitions.
13. Perused the record.
1 AIR 2008 Delhi 118 9 Dr.GRR,J CRP Nos.1009 & 1018 of 2023
14. The record would disclose that the suit was filed by the plaintiff company represented by its Chairman and Managing Director seeking the relief of declaration of title in respect of Ac.17-07 guntas of land situated at Padamati Somaram Village of Bibinagar Mandal, Nalgonda District and to cancel the registered sale deed document Nos.1046/1990, 1047/1990 and 1048/1990 dated 15.05.1990 executed by the vendors through the GPA holder Colonel (retired) N.Ranga Rao in favour of defendant No.1 and to cancel the sale deed document No.6853 of 2005 dated 25.11.2005 executed by defendant No.1 in favor of defendants 2 to 4 and for consequential relief of perpetual injunction restraining the defendants from changing the nature of the suit schedule land as well as from alienating, creating charge or mortgage in favor of third parties.
15. A common written statement was filed by defendants 1 to 5. The suit was reported to be at the stage of arguments. At that stage, the petitioner - plaintiff filed both these applications to re-open their evidence and to summon the defendant No.1 to subject himself for cross-examination.
16. Order XVI Rule 1 of CPC provides that a party can summon any person including the opposite party as a witness. Order XVI Rule 21 specifically deals with examination of a party as a witness and reads as such: 10
Dr.GRR,J CRP Nos.1009 & 1018 of 2023 "Order XVI Rule 21 of CPC:
Rules as to witnesses to apply to the parties to be 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 far as they are applicable. The rule was also subject to the amendment and as per the amendment brought out by the State of Andhra Pradesh, which was same as in Madras, it substitutes as follows:
21(1): When any party to a suit is required by any other party thereto to give evidence, or to produce a document, the provisions as to witnesses shall apply to him so far as applicable.
21(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 equal to the amount payable for travelling and other expenses to the other witnesses in a case of similar standing."
17. Thus, as per the AP High Court amendment of Rule 21, which was taken mutatis mutandis by the High Court of Telangana, 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. There would be many circumstances where one party to a suit may require other party to give evidence on his behalf.
18. The High Court of Andhra Pradesh in B.Nagabhushanam v. Thanikonda Naresh in C.R.P.No.37 of 2021 dated 12.02.2021 held that: 11
Dr.GRR,J CRP Nos.1009 & 1018 of 2023 "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 play 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 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."
19. The Delhi High Court in Dr.Amitabha Sen v. M/s. Sports World International Limited and Others (cited supra) held that summoning opposite party as a witness is an unusual step and should be allowed only in exceptional circumstances. Party also could not be summoned with an object of putting pressure on him. Basing on the judgment of the High Court of Bombay in the case of Pirgonda Hongonda v. Vishwanath Ganesh and Others 2, it was held that normally a party to the suit is expected to step into the witness box in support of 2 AIR 1956 Bombay 251 12 Dr.GRR,J CRP Nos.1009 & 1018 of 2023 his own case and if a party does not appear in the witness-box, it would be open to the trial Court to draw an adverse inference against him. It was further observed that if a party fails to appear in the witness box, it should normally not be open to his opponent to compel his presence by seeking issuance of witness summons.
20. By referring to the judgment of Madras High Court in the Case of Sri Aurobindo Ashram Trust and Another v. Kamal Dora 3, the Court summarized the legal position as follows:
"9.So, the legal position is that a party who seeks for a prayer to the Court to issue summons to a witness, must reveal to the Court the purpose for which the witness is proposed to be summoned. Once such an application is filed, it is for the Court to use its discretion and to decide whether summons are to be issued to those witnesses. It has to be pointed out that the issue of summons is not automatic and in appropriate cases or in cases where objections are raised, the bonafides of the request has to be looked into and appropriate orders passed."
21. Thus, the bonafides of the request has to be looked into for issuing summons to the opposite party as a witness. The petitioner - plaintiff through their affidavit stated the purpose of summoning the defendant No.1 as a witness. The petitioner stated that the defendant No.1 purchased the suit schedule property from the funds 3 AIR 2000 Madras 494 13 Dr.GRR,J CRP Nos.1009 & 1018 of 2023 of the company and by falsely claiming ownership and possession of the suit schedule property, misappropriated the funds of the company, misrepresented to the pattedar of lands and got executed various documents in his individual name, though the properties were purchased by the plaintiff company and executed sale deeds in favor of defendants 2 to 5. The petitioner stated that the defendant No.1 deliberately did not choose to appear before the Court to adduce evidence, but as he appeared in a batch of criminal cases on 03.03.2022, filed the said applications, as his presence was essential to prove the aspects pertaining to the case. As seen from the counter filed by the respondent - defendant No.1, he stated that he was not in a position to appear before the Court due to his health problem. But he had not stated as to what his health problem was and had not even filed any document in support of it. He stated that he was not in a position to move from bed and was on diapers and could not appear before the Court to give evidence and that he was not in a position to speak properly.
22. Learned counsel for the petitioner contended that the defendant No.1 need not appear before the Court and he could be examined through an Advocate Commissioner at his house itself and that the petitioner - plaintiff was ready to bear the Commissioner's fee, the evidence of defendant No.1 was necessary to elicit the truth.
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Dr.GRR,J CRP Nos.1009 & 1018 of 2023
23. Considering the submissions of the learned counsel for the petitioner - plaintiff and the defendant No.1 being a party to the suit, though filed his written statement but failed to enter into the witness box and as his presence was stated to be required for the purpose of cross-examining him on the above aspects, which were required to be proved by the petitioner - plaintiff to prove his case and as the CPC also enables a party, to summon the opponent as a witness including for cross-examination, the trial court ought to have allowed the applications. If the defendant No.1 was not in a position to speak, the Advocate Commissioner could record the same.
24. As all opportunities should be provided to the parties to prove their case and if defendant No.1 was not inclined to appear as a witness even then, an adverse inference can be drawn against him as per the judgment of the Hon'ble Apex Court in Vidhyadhar v. Manikrao and Another 4.
25. In the result, both the Civil Revision Petitions are allowed setting aside the common order of the trial court in I.A.Nos.105 and 106 of 2022 in O.S.No.8 of 2010 dated 04.07.2022 and the trial court may take steps to appoint an Advocate 4 AIR 1999 SC 1441 15 Dr.GRR,J CRP Nos.1009 & 1018 of 2023 Commissioner to examine defendant No.1 at his house itself on payment of necessary fee by the petitioner - plaintiff.
26. In the result, both the Civil Revision Petitions are allowed setting aside the common order dated 04.07.2022 passed in I.A.Nos.105 and 106 of 2022 in O.S.No.8 of 2010 by the learned Principal District Judge, Bhongir. No order as to costs.
As a sequel, miscellaneous applications pending in these petitions, if any, shall stand closed.
_____________________ Dr. G.RADHA RANI, J Date: 09.06.2025 Nsk.