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Telangana High Court
Kummari Chennaiah vs Sri K Raja Shekar on 18 July, 2025
Author: P. Sam Koshy
Bench: P.Sam Koshy
THE HONOURABLE
THE ACTING CHIEF JUSTICE P. SAM KOSHY
Civil Revision Petition No.1213 of 2025
and
Civil Revision Petition No.1226 of 2025
COMMON ORDER :
Since the issue arising in the instant Civil Revision
Petitions is one and the same and the parties thereto are also
same, the Civil Revision Petitions are being disposed of by this
Common Order.
2. Heard Ms.K. Gayatri, learned counsel representing
Mr.S. Nagesh Reddy, learned counsel for the petitioners
(defendant Nos.4, 11 & 12); and Mr. Kuldeep Jadhav, learned
Counsel for respondent No.1 (plaintiff).
3. Civil Revision Petition Nos.1213 of 2025 and 1226 of 2025
are filed by the petitioners under Article 227 of the Constitution
of India assailing the Common Order dated 25.03.2025 passed
in I.A.Nos.64 & 65 of 2025 in O.S.No.317 of 2020 passed by the I
Additional Junior Civil Judge, at Shadnagar (for short, ‘the
impugned Common Order’).
4. Vide the impugned common order, the Trial Court allowed
the above applications, viz., I.A.Nos.64 & 65 of 2025 in
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O.S.No.317 of 2020 and directed respondent No.2 (defendant
No.1 before the trial court) to appear before the Trial court on the
next date of hearing for cross-examination.
5. I.A.No.64 of 2025 in O.S.No.317 of 2020 was filed by
respondent No.1 (plaintiff) under Section 151 of the Civil
Procedure Code, 1908 praying the Trial Court to reopen the
matter for the purpose of examining the evidence of respondent
No.2 (defendant No.1); and I.A.No.65 of 2025 in O.S.No.317 of
2020 was filed by respondent No.1 (plaintiff) under Order XVI
Rule 1 read with Section 151 of Civil Procedure Code, 1908
praying the Trial Court to issue summons to respondent No.2
(defendant No.1).
6. Initially, the suit was filed by respondent No.1 (plaintiff)
under Order VII Rules 1 to 7 read with Section 151 of Civil
Procedure Code, 1908 seeking for specific performance of an
Agreement of Sale dated 08.05.2017; to declare the sale deed
bearing Document No.7621 of 2017, dated 28.10.2017, as being
null and void and not binding on respondent No.1 (plaintiff); and
in the alternative, respondent No.1 (plaintiff) had also sought for
an alternative relief with a direction to the respondents
(defendants) to pay an amount of Rs.10.5 lakhs along with
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interest @ 24% p.a. from the agreement, i.e., 08.05.2017 to
08.11.2020, and for other reliefs.
7. Learned counsel for the petitioners contended that
respondent No.2 (defendant No.1) was set ex parte and he has,
in spite of proper service, decided not to contest the case; neither
respondent No.2 (defendant No.1) has filed any written statement
either supporting respondent No.1 (plaintiff) nor opposed the suit
filed by respondent No.1 (plaintiff); the suit filed by the
respondent No.1 (plaintiff) was opposed only by the petitioners
(defendant Nos.4, 11 & 12) and all other respondents /
defendants in the suit, viz., defendant Nos.1 to 3 and 5 to 10
have remained ex parte; the suit had proceeded in its usual
course and respondent No.1 (plaintiff) was examined and
documents were also marked; respondent No.1 (plaintiff) was
examined by one of the contesting defendants, viz., defendant
No.4 and thereafter the defendant No.4 was also examined and
the matter was fixed for final arguments.
8. Learned counsel for the petitioners further contended that
arguments on behalf of respondent No.1 (plaintiff) were also
heard by the Trial Court; it was at this juncture that the
respondents have filed a petition under Section 39(1) of
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Bharatiya Sakshya Adhiniyam, 2023 in respect of a document
being sent for an expert opinion, and the expert’s opinion was
also received thereon; it was after the obtaining of the expert’s
opinion that respondent No.1 (plaintiff) has filed the above two
I.A.s praying the Trial Court to call upon respondent No.2
(defendant No.1) as a witness and that he may be treated as a
witness on behalf of respondent No.1 (plaintiff) or as a Court
witness and that summons may be issued to respondent No.2
(defendant No.1) for the that purpose.
9. Learned counsel for the petitioners further contended that
the request for calling upon respondent No.2 as a court witness
or witness on behalf of respondent No.1 (plaintiff) is totally
uncalled for as the said move is nothing but to improve upon the
case of respondent No.1 (plaintiff) and his evidence; therefore,
the same should not be permitted; that respondent No.1
(plaintiff) has to prove his case on his own and cannot expect
respondent No.2 (defendant No.1) as a witness in support of his
contentions; the intention of respondent No.1 (plaintiff) in calling
for respondent No.2 (defendant No.1) as a witness was also to
ensure that the proceedings of the suit gets dragged on; and
therefore, prayed for allowing the Revisions and setting aside of
the impugned order.
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10. Per contra, learned counsel for respondent No.1 (plaintiff),
opposing the Revisions, contended that the presence of
respondent No.2 (defendant No.1) is required to know as to
whether the signatures reflected in the so-called agreement of
sale which was sent for an expert’s opinion was one which was
put by him or not; that respondent No.1 (plaintiff) has filed
above applications calling for presence of respondent No.2
(defendant No.1) as a witness and also for reopening of the case
for recording of evidence of respondent No.2 (defendant No.1);
the requirement of respondent No.2 (defendant No.1) to be called
as a witness is necessary to put an end to unnecessary
controversies that have erupted upon the Document Ex.A.1
having been subjected to an expert’s opinion; the allowing of the
above two I.A.s vide the impugned order by the Trial Court,
would not cause any prejudice to any of the respondents and
that respondent No.1 (plaintiff) was ready to bear whatever
financial implications that may arise for calling upon respondent
No.2 (defendant No.1) as a witness; and therefore, prayed for
dismissal of the Revisions.
11. Having heard the contentions put forth on either side and
on a perusal of the record, it would be relevant at this juncture
to take note of provisions of Order 16 Rule 1 of Civil Procedure
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Code, 1908 which was invoked by the Trial Court for allowance
of the above two I.A.s, viz., I.A.Nos.64 and 65 in O.S.No.317 of
2020 vide the impugned common order.
12. For ready reference, Order 16 Rule 1 of Civil Procedure
Code, 1908, is extracted as under, viz., :
“1. List of witnesses and summons to witnesses. – (1) On or before
such date as the Court may appoint, and not later than fifteen days
after the date on which the issues are settled, 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 person for their attendance in Court.
(2) 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.
(3) The Court may, for reasons to be recorded, permit a party to call,
whether by summoning through Court or otherwise, any witness,
other than those whose names appear in the list referred to in sub-
rule (1), if such part shows sufficient cause for the omission to
mention the name of such witness in the said list.
(4) Subject to the provisions of sub-rule (2), summonses referred to
in this rule may be obtained by the parties on an application to the
Court or
[1A. Production of witnesses without summons-. A subject to the
provisions of sub-rule (3) of rule 1, and party to the suit may,
without applying for summons under rule 1, bring any witness to
give evidence or to produce documents.]”
13. Upon perusal of the aforesaid provisions of law, what next
is to be seen is the person who is requested to be called as a
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witness. In the instant case, the request was made by
respondent No.1 (plaintiff) for calling upon respondent No.2
(defendant No.1) to appear as a witness. The respondent No.2
(defendant No.1), being a party to the suit, in spite of proper
service of notice, thought it fit not to contest the case either
supporting respondent No.1 (plaintiff) or opposing respondent
No.1 (plaintiff). The respondent No.2 (defendant No.1) knowingly
decided not to contest the case and therefore did not even care to
file Written Statement in the suit. Thus, an inference has to be
drawn that respondent No.2 (defendant No.1) chose not to
contest the case for the reason of being in connivance with
respondent No.1 (plaintiff) in the above suit.
14. Another aspect which needs appreciation is that when a
suit for specific performance is filed, the burden of establishing
the case is exclusively upon respondent No.1 (plaintiff).
Therefore, in the instant case, it cannot be expected of
respondent No.1 (plaintiff) to call upon respondent No.2
(defendant No.1) to come and lead evidence in support of his
contentions; if the respondent No.2 (defendant No.1) voluntarily
with wide open eyes has chosen to not contest the case, a
suitable inference has to be drawn, but he cannot be compelled
to appear before the Trial Court to lead evidence, more
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particularly in the instant case, since respondent No.1 (plaintiff)
wanted respondent No.2 (defendant No.1) to support his
evidence. However, if respondent No.1 (plaintiff) so desires, he
could have sought for cross-examination of the expert who had
given an opinion in respect of the alleged document sent for
expert’s opinion rather than calling upon respondent No.2
(defendant No.1) to give evidence.
15. In the case of Atul Kumar Singh vs. Nitish Kumar 1, a
learned Single Judge of the High Court of Delhi held at
Paragraph Nos.29, 30, 31 and 33 as under :
“29. Apart from the aforesaid judgments as relied upon by the
parties, I find that a Coordinate Bench of this court in its recent
opinion reported as MANU/DE/2790/2016 Symantec Software
Solutions Pvt. Ltd. and Ors. v. R. Modi and Ors. had by referring to
the Judgment in Amitabha Sen (supra) held that party to a litigation
is not entitled to summon or examine a witness without satisfying
the court of the relevance of the witness’s testimony to the lis for
adjudication, in other words, the purpose for which the witness is
proposed to be summoned.
30. On a reading of the above judgments relied upon by the
parties, some of the factors need to be considered while considering
an application of this nature, are as under:
1. Order XVI of the code, which deals with the summoning of
the witness does not bar one party from applying for the examination
of the other as his witness.
1
265 (2019) DLT 161
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2. It is not that everyone who is included in the list of
witnesses is automatically summoned.
3. The Rule is if the grounds are made out for summoning of
witness, he will be called not if the demand is belated, vexatious or
frivolous.
4. An application for summoning of the witness should not be
granted as a matter of course, but at the appropriate stage, the court
can pass such order keeping the facts of the case and conduct of the
contesting party in mind.
5. In an application for summoning of witness cogent reasons
needs to be mentioned. In the absence of any cogent reason, the
application liable to be dismissed.
6. Motives of the party should be looked into by the court while
deciding the application for summoning of witness Under Order XVI
Rule 1 CPC.
7. Strong evidence needs to be adduced by the party opposing
an application for summoning of witness to show that it is not a
bona fide and the granting of such application shall be permitting an
abuse of the process of the court.
8. The summoning or examination of an opposite party of a
suit must be allowed by the court only in the rarest of rare cases
when it is unavoidable in the interest of justice.
31. In the facts of this case, the reasoning given by the plaintiff in
the application under Order XVI Rule read with Section 151 CPC are
primarily two, which have been averred in Paras 4 and 7 of the same,
which I reproduce as under:
4. That the said witness has to be examined in order to bring
on record further evidence with regard to the violation to authorship
and authorship rights of the literary work titled as “Special Category
Status: A case for Bihar”, in which defendant no. 1 is the principal
actor.
xxx xxx xxx
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7. Thus, in view of the above, it is submitted that the present
application be allowed as the same is bonafide and is in the interest
of justice and no prejudice will be caused to the defendant if the
same is allowed. However, irreparable loss and injury will be caused
to the plaintiff if the same is not allowed.
… … …
33. From the above, it is clear that on issue no.1, the onus is on
the plaintiff to prove that he is the owner of the copyright. It shall be
his endeavour, to prove the same. On the other hand, vide their
written statements the defendants are contesting the said position.
In other words, the stand of the parties is at variance. Each of the
parties, shall have to enter the witness box to prove his / its case.
The opposite party, shall naturally cross-examine the party in the
witness box. So it follows, that the defendant no.1 coming as a
witness, shall in his evidence make good the stand taken by him in
his written statement. He shall not prove the case of the plaintiff. So,
the reasoning of the plaintiff calling defendant no.1, as a plaintiff’s
witness being so called “principal actor” and a bona fide act is not
convincing. In other words, the reasons are not cogent. The facts of
this case shows, that it is not necessary to summon the defendant
no.1 as witness of the plaintiff. Surely when the defendant no.1
appears in the witness box to prove his case, the plaintiff shall be
within his right to demolish the case set up by the defendant no.1 in
his pleading, and ensure, the case set up by him is proved by cross-
examining the said defendant.”
16. Further, the Hon’ble Supreme Court in the case of Union
of India vs. Vasavi Cooperative Housing Society Limited 2
held at paragraph Nos.15, 16, 17 and 19 as under, viz.,
“15. It is trite law that, in a suit for declaration of title, burden
always lies on the plaintiff to make out and establish a clear case for
granting such a declaration and the weakness, if any, of the case set
2
(2014) 2 S.C.C. 269
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up by the defendants would not be a ground to grant relief to the
plaintiff.
16. The High Court, we notice, has taken the view that once the
evidence is let in by both the parties, the question of burden of proof
pales into insignificance and the evidence let in by both the parties is
required to be appreciated by the court in order to record its findings
in respect of each of the issues that may ultimately determine the
fate of the suit. The High Court has also proceeded on the basis that
initial burden would always be upon the plaintiff to establish its case
but if the evidence let in by defendants in support of their case
probabalises the case set up by the plaintiff, such evidence cannot be
ignored and kept out of consideration.
17. At the outset, let us examine the legal position with regard to
whom the burden of proof lies in a suit for declaration of title and
possession. This Court in Maran Mar Basselios Catholicos v.
Thukalan Paulo Avira 3 observed that :
“in a suit for declaration if the plaintiffs are to succeed, they
must do so on the strength of their own title.”
… … …
19. The legal position, therefore, is clear that the plaintiff in a suit
for declaration of title and possession could succeed only on the
strength of its own title and that could be done only by adducing
sufficient evidence to discharge the onus on it, irrespective of the
question whether the defendants have proved their case or not. We
are of the view that even if the title set up by the defendants is found
against, in the absence of establishment of plaintiff’s own title,
plaintiff must be non-suited.”
17. As regards the decisions cited by the learned counsel for
the respondent No.1 (plaintiff), viz., in the cases of Mandir Shri
Hanuman Murti vs. Collector Mahoday, Datia 4; Bharat Heavy
3
AIR1959 SC 31
4
2016 (1) M.P.L.J. 75
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Electricals Limited vs. M/s.Ineos Styrolution Ltd. 5; and
Pradeep Majoj Farms Pvt. Ltd. Vs. Duggirala Vidya Sagar Ra 6,
there is no dispute or quarrel so far as ratio / principles of law
laid down in respect of an application filed under Order 16 Rule
1 calling for summoning of an witness is concerned. However,
the said decisions / judgments would not be applicable to the
facts of the instant case and are distinguishable on its own facts
for the simple reason that, in the instant case it was not a case
of an independent witness or for that matter summoning of the
expert on whose opinion the necessity for filing of I.A.Nos.64 and
65 of 2025 in O.S.No.317 of 2020 arose. Whereas, in the instant
case, the respondent No.1 (plaintiff) intends to call for the
respondent No.2 (defendant No.1) himself as a witness which
apparently sounds illogical particularly for the reason that the
respondent No.2 (defendant No.1) had chosen not to contest the
case and had also decided to not file a Written Statement to the
above suit filed by the respondent No.1 (plaintiff). Under the
circumstances, calling for the respondent No.2 (defendant No.1)
as an witness appears to be on the ground that there being some
connivance between the respondent No.1 (plaintiff) and
respondent No.2 (defendant No.1).
5 2019 LawSuit (Guj) 757 D.B. 6 2023 SCC OnLine TS 529 ::13:: crp_1213&1226_2025
18. For all the aforesaid reasons, this Court is of the
considered opinion that the impugned Common Order dated
25.03.2025 passed in I.A.Nos.64 & 65 of 2025 in O.S.No.317 of
2020 by the Trial court does not seem to be proper, legal and
justified. Accordingly, the impugned Common Order dated
25.03.2025 passed in I.A.Nos.64 & 65 of 2025 in O.S.No.317 of
2020 deserves to be and is accordingly set aside / quashed. The
Civil Revision Petitions are allowed. No costs.
19. As a sequel, miscellaneous petitions pending, if any, shall
stand closed.
_______________________
P. SAM KOSHY, HACJ
Date: 18.07.2025
Ndr
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