JORTIN ANTONY Vs. PADMANABHA DASA MARTHANDA VARMA

JUDGEMENT

(1.) The plaintiffs in a suit for specific performance of an agreement to sell immovable property are the petitioners. The plaintiffs filed the suit for specific performance on 4-10-1995. Defendants 1 to 8 appeared and filed written statements. Defendant No. 9 did not appear to contest. The contesting defendants in their written statements denied the claim of the plaintiffs. The trial Court settled the issues on 17-10-1996. The plaintiffs sought to serve interrogatories on defendants 1 to 8. Though that application was opposed, ultimately the same was allowed by the trial Court. Attempts made by defendants 1 to 5 in one set and defendants 6 to 8 in another to have that order set aside did not succeed. What according to them were answers to the interrogatories were furnished by the defendants. There was a complaint by the plaintiffs that the answers to the interrogatories were not complete and seeking the stricking out of the defence in terms of Rule 21 of Order XI of the Code of Civil Procedure. Ultimately the trial Court posted the suit for steps and trial. The plaintiffs filed a list of witnesses. In that list the plaintiffs filed a list of witnesses. In that list the plaintiffs included defendants 1 to 8 also as witnesses to be examined on their behalf. One of the plaintiffs was examined on behalf of the plaintiffs. An Officer from the Income-tax Department was also examined. At that stage the plaintiffs filed I. A. 1480 of 1999 praying that summons be issued for appearance of witnesses shown as serial Nos. 11 to 18 in the schedule of witnesses, being defendants 1 to 8 in the suit for giving evidence. This application was opposed by the defendants. The trial Court considered the application and relying on the decisions which suggested that a party to the suit is not entitled to cite and examine the opposite party, dismissed the application. Challenging that order the above Revision was filed before this Court invoking Section 115 of the Code of Civil Procedure.

(2.) Before the learned single Judge learned counsel for the plaintiffs submitted that the decisions of the Kerala High Court referred to and relied on by the trial Court and relied on by the defendants were rendered without noticing the amended Rule 21 of Order XVI of the Code of Civil Procedure as obtaining in Kerala and hence the matter required reconsideration. The learned single Judge felt that in the light of the arguments addressed and in the light of Order XVI of the Code, the question deserved to be decided by a Division Bench. The learned single Judge therefore adjourned the case for being heard by a Division Bench in exercise of his jurisdiction under Section 3 of the High Court Act.

(3.) Order XVI of the Code of Civil Procedure deals with the summoning of and attendance of witnesses. Rule 1 provides that the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court. A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. No doubt it is open to the Court for reasons to be recorded, to permit a party to call any witness other than one whose name appears in the list originally submitted. Rule 1-A of Order XVI provides that any party to the suit may, without applying for summons under Rule 1, bring any witness to give evidence or to produce documents. Rule 7 of Order XVI gives the power to the Court to require any person present in Court to give evidence or to produce any document then and there in his possession and power. Rule 7 does not indicate whether the expression 'any person' referred to in that Rule would include or exclude a party to the suit. But giving the expression its natural meaning, it is possible to say that Rule 7 of Order XVI of the Code gives power to the Court to require any person present in Court whether a party to the suit or a non-party to the suit to give evidence or to produce a document. But it has to be noted that the power under Rule 7 of Order XVI is available to give a direction in that behalf only to a person present in Court. Rule 14 of Order XVI provides that 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 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 the Court may examine him as a witness or require him to produce such document. Thus Rule 14 confers power on the Court when it thinks it necessary, to examine any person including a party to the suit as a witness. Rule 20 of Order XVI provides the consequence for the refusal of a party summoned to give evidence by providing that where any party to a suit present in Court refuses without lawful excuse when required by the Court to give evidence or produce any document then and there in his possession or power, the Court may pronounce judgment against him and make such order in relation to the suit as it thinks fit. Rule 21 provides that where a party to the 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.