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2024 DIGILAW 1436 (AP)

Yagalla Appaji Praveen v. Gorti Rama Krishna

2024-10-14

SUBBA REDDY SATTI

body2024
ORDER : Subba Reddy Satti, J. 1. The plaintiff in the suit filed the above revision against the order dated 18.06.2024 in I.A.No.97 of 2024 in O.S.No.38 of 2015 on the file of Special Judge for Trial of Cases under SCs & STs (POA)-cum-IV Additional District Judge, Srikakulam. 2. Plaintiff filed suit O.S.No.38 of 2015 seeking specific performance of suit agreement of development dated 05.10.2011 or in the alternative for recovery of advance amount with interest. 3. The defendant filed suit and has been contesting the suit. Apart from other pleas, the defendant pleaded and denied the execution of the agreement. He further pleaded that he alone is not the owner and as such he cannot convey a better title than what he had. 4. The trial in the suit was commenced. Plaintiff filed an affidavit, in lieu of, the chief examination. Exs.A1 to A20 were marked. A true copy of the attested Will (unregistered) produced by the plaintiff, said to have been executed by the father of the plaintiff, was not marked. 5. The Plaintiff filed I.A.No.97 of 2024 under Order XVI Rule 14 of CPC to issue a summons to the defendant to give evidence as a Court witness concerning the existence of the original Will dated 27.09.1969. The plaintiff also filed I.A.No.98 of 2014 under Section 151 of CPC to defer the cross- examination of P.W.1 by the defendant, until the defendant is examined as a Court witness in respect of the existence of the original Will dated 27.09.1969. 6. In the affidavit filed in support of I.A.No.97 of 2014, it was contended, inter alia, that a certified true copy of the Will dated 27.09.1969 executed by Gorti Venkata Rama Jogarao, father of the defendant, issued by the Tahsildar, Srikakulam was produced, however, the same was not marked by the Court. The defendant, after the death of his father, applied for the issuance of a family member certificate before the Tahsildar, Srikakulam by producing a copy of the aforementioned Will and other documents. The plaintiff issued a notice under Order XII Rule 8 of CPC to the defendant to cause the production of the original Will. The defendant filed counter and pleaded that the original Will was lost. Thereafter the plaintiff got issued a summons to the Tahsildar to cause the production of relevant records along with a true copy of the Will. The plaintiff issued a notice under Order XII Rule 8 of CPC to the defendant to cause the production of the original Will. The defendant filed counter and pleaded that the original Will was lost. Thereafter the plaintiff got issued a summons to the Tahsildar to cause the production of relevant records along with a true copy of the Will. The trial Court declined to mark the Will as an exhibit that a copy of the Will cannot be marked as secondary evidence. Unless, the defendant is confronted with the existence of the original Will dated 27.09.1969 executed by his father, the very purpose of filing of suit would be defeated. In those circumstances, the plaintiff also filed I.A.No.98 of 2024 under Section 151 of CPC to defer the cross-examination of P.W.1 and hence, filed the above application to issue a summons to the defendant to give evidence as a Court witness. 7. A counter was filed on behalf of the defendant. It was contended, inter alia, that the suit was filed for specific performance, as such the question of proving the Will does not arise by examining the defendant at the first instance. The defendant will lead evidence after the closure of the plaintiff's evidence. In the written statement, it was contended that he never entered into an agreement and it is created one. The original Will was misplaced in the house and was not traced out so far and eventually, prayed to dismiss the petition. 8. The Court below by order dated 18.06.2024 dismissed the application. Aggrieved by the same, the present revision is filed. 9. Heard Sri S.V.S.S.Sivaram, learned counsel for petitioner. 10. Learned counsel for the petitioner would submit that under Order XVI Rule 14 of CPC, the Court can examine any person including a party to the suit and in view of pleadings in the suit and non-marking of attested true copy of the Will dated 27.09.1969 as exhibit, the plaintiff filed I.A. He would also submit that the Court below failed to assign proper reasons and dismissed the application on irrelevant grounds. 11. Now, the point for consideration is: Does the order dated 18.06.2024 in I.A.No.97 of 2024 in O.S.No.38 of 2015 suffer from illegality or perversity warranting interference by this Court under Article 227 of the Constitution of India? 12. 11. Now, the point for consideration is: Does the order dated 18.06.2024 in I.A.No.97 of 2024 in O.S.No.38 of 2015 suffer from illegality or perversity warranting interference by this Court under Article 227 of the Constitution of India? 12. Suit O.S.No.38 of 2015 was filed by the plaintiff against the defendant for specific performance of suit agreement of development dated 05.10.2011 or in the alternative for recovery of advance amount with interest. The defendant as indicated supra, denied the execution of the agreement and further pleaded that he alone is not the owner of the property and hence, he cannot convey a better title than what he had. 13. As seen from the order of the Court below, it seems that the plaintiff filed an attested true copy of a Will dated 27.09.1969 issued by the Tahsildar, Srikakulam. The said document was not marked as one of the exhibits. Earlier, the plaintiff issued a notice under Order XII Rule 8 of CPC to cause the production of the original Will, however, the defendant pleaded that the original Will was lost. 14. In the backdrop of these facts, whether the application under Order XVI Rule 14 of CPC filed by the plaintiff to summon the sole defendant, who has been contesting the suit, tooth and nail, is maintainable? 15. Order XVI CPC deals with the summoning and attendance of witnesses. Rule 14 of Order XVI of CPC, which is relevant reads thus: 14. Court may of its own accord summon as witnesses strangers to suit Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it necessary to examine any person, including a party to the suit, and not called as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession on a day to be appointed, and may examine him as a witness or require him to produce such document. (emphasis is mine) 16. The words 'any person including a party to the suit' were incorporated by amendment to CPC by Act 104 of 1976 with effect from 01.02.1977. (emphasis is mine) 16. The words 'any person including a party to the suit' were incorporated by amendment to CPC by Act 104 of 1976 with effect from 01.02.1977. Before amendment, there is no power to the Court to examine a party to the suit as the Court witness. However, by amendment such power was conferred with the Court. 17. The object underlying such provision is that the Court is empowered to summon such witness as a Court witness including a party after the Court is satisfied that examination of such witness may be necessary for adjudication of questions in controversy between the parties. 18. It is also a well-settled principle that discretion vested with the Court under Order XVI Rule 14 of CPC can be exercised either by suo motu or at the instance of the party, however subject to the satisfaction of the Court. The Court shall exercise the power cautiously and not in a routine manner. 19. The words employed in Order XVI Rule 14 of CPC 'where the court at any time thinks it necessary' to examine any person including a party to the suit, in the opinion of this Court, may not apply to the case where the defendant has been contesting the suit exhaustively. It is to the Court, if it ponders necessary to examine a party or any third party, to prove the fact which is in the exclusive knowledge of that party and if the said fact goes to the root of the suit, probably in such circumstances, one can invoke the jurisdiction under Order XVI Rule 14 of CPC. 20. The legislature has felt a need for strict provisions enabling the Court to summon a party to give evidence as a Court witness to curb the malpractices of a party not appearing as a witness and forcing the other party to call him as a witness and adjudicate the issue properly. What is laid down in the provision is that if the Court shall satisfy such necessity to examine the witness, then only the Court can summon such person as a witness. However, this power has to be exercised guardedly and not in a routine manner. 21. What is laid down in the provision is that if the Court shall satisfy such necessity to examine the witness, then only the Court can summon such person as a witness. However, this power has to be exercised guardedly and not in a routine manner. 21. A party to the petition under Order XVI Rule 14 of CPC, is, therefore, required to convince the Court by assigning sufficient reasons seeking the assistance of the Court for summoning the person to give evidence as Court witness including a party to the suit. As long as the Court is not satisfied with the reasons assigned by such party which invokes the provision, the Court shall not act upon such request. (Kosuru Kalinga Maharaju Vs. Kosuru Kaikamma, 1999 (6) ALD 789 : 2000 (2) ALT 409 ). 22. The provision applies to the persons who were not called as witnesses earlier. In this case, where admittedly the plaintiff was examined as a witness and he had already filed a document, merely because, the plaintiff failed to mark some of the documents, it cannot be a ground to exercise the suo motu power under Order XVI Rule 14 of CPC to recall the plaintiff as a witness. (2007) 2 Law Weekly 1006. 23. Case at hand, as discussed supra, the defendant has been contesting the suit and he denied the execution of the agreement of development and also pleaded that he alone is not the owner of the property. As rightly pointed out by the Court below, merely certifying the Will by way of attestation by the Tahsildar, itself does not bring any change in the legal character of the Will. However, the observation made by the Trial Court in that regard shall be understood as reasons to decide I.A., but not on merits. The observations, if any, made in the order, will not have any bearing on the disposal of the suit. 24. The order passed by the Court below since do not suffer from any illegality of perversity, brooks interference by this Court under Article 227 of the Constitution of India, this Court does not find any merit in this revision, and hence, the same is liable to be dismissed. 25. Accordingly, the Civil Revision Petition is dismissed at the admission stage. No costs. 25. Accordingly, the Civil Revision Petition is dismissed at the admission stage. No costs. Since the suit has been pending since 2015, the learned Trial Court shall expedite the trial and dispose of the suit as expeditiously as possible. As a sequel, pending miscellaneous petitions, if any, shall stand closed.