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2017 Supreme(AP) 75
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
T. Sunil Chowdary, J.
Meka Krishnaveni - Petitioner
Vs.
Geddam Kanaka Durga Devi - Respondent
Civil Revision Petition Nos. 2778 of 2016
Decided On : 31-03-2017
For the Petitioner: K. Chidambaram
For the Respondent: M.L Ali
.
Headnote:
Constitution of India - Article 227 - Indian Evidence Act - Section 138 - Civil Law - Civil Procedure Code - Section 151 - Petitions are filed under Article of the Constitution of India challenging the orders dated passed in on the file of the Court of the Additional Senior Civil Judge of West District wherein and whereby the trial Court allowed the petitions filed by the respondent plaintiff one under Section CPC to reopen the matter and another under Order 18 Rule 17 CPC to summon P.W 4 as Court witness for the purpose of cross examination respectively - Petitioner on the file of the Additional Senior Civil Judge for declaration and recovery of suit schedule property - Petitioner filed written statement opposing the claim of the respondent - Respondent examined one as P.W 4 in order to prove the recitals of Ex. A. gift deed - Petitioner filed a petition for issuance of summons to P.W 4 to prove the Will dated and the same was dismissed. Subsequently the petitioner filed recall P.W which was allowed while cross examining learned counsel for the petitioner confronted him with the Will dated Contending that since P.W 4 was examined on her behalf she did not have the opportunity to cross examine PW. 4, the respondent filed to reopen the matter and I.A No. to issues summons to P.W 4 to examine him as a court witness for the purpose of cross examination. The petitioner filed separate counters vehemently opposing that the petitions are not maintainable under law - After affording reasonable opportunity to both parties, the trial Court allowed the two applications - Present revisions - Impugned orders on the following grounds party to the proceeding is not entitled to file an application under Order 16 Rule CPC seeking to issue summons to any person to examine as a court witness - Held, Court to summon any person to give evidence as a witness or to produce any document in his possession, if the Court thinks it necessary - Only prohibition provided under Rule is that such a person should not have been called as a witness by a party to the suit - Though the language of Rule shows that the discretion has to be exercised by the Court at its own motion but not on an application made by a party the law is well settled that the application if any made by the parties can be taken as an information to the Court and in case the Court finds it necessary, a witness can be summoned to give evidence - Learned counsel for the respondent are no way helpful to the respondent as those decisions deal with scope of Order - Court has not considered the scope and underlying object of Order 16 Rule 14 CPC and also the legal embargo created under Order 16 Rule - principle enunciated in the cases cited supra, I am of the considered view that the impugned orders are not sustainable either on facts or in law facie there is an illegality in the impugned orders, which warrants interference of this Court while exercising jurisdiction under Article 227 of the Constitution of India - Petitions are allowed - Ordered Accordingly.
T. SUNIL CHOWDARY, J.
Both these Civil Revision Petitions are filed under Article 227 of the Constitution of India challenging the orders dated 04.02.2016 passed in I.A No. 2589 of 2015 and I.A No. 2592 of 2015 in O.S No. 325 of 2008 on the file of the Court of the Additional Senior Civil Judge, Eluru of West Godavari District wherein and whereby the trial Court allowed the petitions filed by the respondent plaintiff one under Section 151 CPC to reopen the matter and another under Order 18 Rule 17 CPC to summon P.W 4 as Court witness for the purpose of cross examination respectively.
2. Since the point involved in both the Civil Revision Petitions is intertwined with each other, these two Civil Revision Petitions are disposed of by this common order.
3. The facts leading to filing of the present Civil Revision Petitions are as follows:
4. The respondent filed O.S No. 325 of 2008 against the petitioner on the file of the Additional Senior Civil Judge, Eluru for declaration and recovery of suit schedule property. The petitioner filed written statement opposing the claim of the respondent. The respondent examined one Samudrala Venkata Chalapathirao as P.W 4 in order to prove the recitals of Ex. A. 6 gift deed. The petitioner filed a petition for issuance of summons to P.W 4 to prove the Will dated 22.06.1996 and the same was dismissed. Subsequently the petitioner filed I.A No. 1647 of 2015 to recall P.W 4, which was allowed. On 13.11.2015 while cross examining P.W 4, the learned counsel for the petitioner confronted him with the Will dated 22.06.1996 Contending that since P.W 4 was examined on her behalf, she did not have the opportunity to cross examine PW. 4, the respondent filed I.A No. 2589 of 2015 to reopen the matter and I.A No. 2592 of 2015 to issues summons to P.W 4 to examine him as a court witness for the purpose of cross examination. The petitioner filed separate counters vehemently opposing that the petitions are not maintainable under law. After affording reasonable opportunity to both parties, the trial Court allowed the two applications. Hence the present revisions.
5. The learned counsel for the petitioner challenged the impugned orders on the following grounds: 1) A party to the proceeding is not entitled to file an application under Order 16 Rule 14 CPC seeking to issue summons to any person to examine as a court witness, 2) the respondent has not filed the petition under correct provision of law and the same was not considered by the trial Court in right perspective, 3) the trial Court has not exercised discretionary power vested in it properly, and 4) the impugned orders are not sustainable either on facts or in law, therefore, the same are liable to be set aside.
6. Per contra, the learned counsel for the respondent submitted that 1) a party to the proceedings is entitled to file an application under Order 16 Rule 14 CPC to examine any person as a court witness, 2) mere quoting of wrong provision of law by itself is not a valid ground to dismiss the petition, and 3) the trial Court has exercised discretionary power judiciously basing on sound principles of law, therefore, the Civil Revision Petition is liable to be dismissed.
7. The crucial question that falls for consideration is whether a party to the proceeding is entitled to file an application to summon any person to give evidence as a court witness?
8. A perusal of the record reveals that the respondent filed an application under Order 18 rule 17 CPC to recall P.W 4 as a court witness for the purpose of cross examination which was allowed. Order 16 Rule 14 CPC postulates that the Court may at its own accord summon as witnesses strangers to suit.
9. The tenor of the affidavit filed by the respondent before the Court below clearly discloses that the respondent filed the petition to summon P.W 4 as a court witness for the purpose of cross examination. It is not in dispute that the respondent filed petition under Order 18 Rule 17 CPC to recall P.W 4, for the
