The court upheld the trial court's discretion under Order XVI Rule 14, emphasizing that the necessity to summon a party must be convincingly established.

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 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, t