A party to a suit cannot compel the opponent to testify on their behalf as a matter of right; the trial court has discretion to allow such summons based on the necessity and context of the case.

ORDER :

Vijaykumar A. Patil, J.

This writ petition is filed challenging the order dated 12.09.2019 passed on I.A.No.15 in O.S.No.80/2017 by the II Additional Senior Civil Judge and JMFC, Davanagere.

2. Heard.

3. Sri.Deepak S. Shetty, learned counsel appearing for the petitioners submits that the Trial Court committed a grave error in allowing an application filed by the respondent No.1 to summon the witness. The Trial Court allowed the application to summon the petitioner No.1-defendant No.1 as a witness on behalf of the plaintiff-respondent No.1, which is contrary to the settled principles of law. It is submitted that the plaintiff- respondent No.1 has to prove the case based on his pleadings and evidence and he cannot compel the petitioner No.1- defendant No.1 to speak in the witness box in his favour. It is further submitted that the respondent No.1 examined 3 witnesses. During the cross-examination, there were admissions with regard to the execution of the alleged sale agreement and PWs-2 and 3 also gave inconsistent evidence and to overcome the same, such application is filed which was allowed by the Trial Court. There cannot be summoning of the opponent as a witness in the Court. In support of his contentions, he placed reliance on the following decisions:

(1) MALLANGOWDA AND ORS. Vs. GAVISIDDANGOWDA AND ANOTHER, AIR 1959 MYSORE 194.

(2) JORTIN ANTONY AND ORS. Vs. PADMANABHA DASA MARTHANDA VARMA AND ORS., AIR 2000 KER 369

(3) SURESH S/O SAHEBRAO TAWALE Vs. UTTAM S/O SHANKAR GHADGE AND ORS., (2012) 5 ALL MR 880.

(4) MINOR ARUMUGAM ALIAS LOGESH Vs. STATE BANK OF INDIA , LAWS (MAD) 2005 (7) 208

Hence, he seeks to allow the petition.

4. Per contra, Sri.S.D.N.Prasad, learned counsel appearing for the respondent No.1 supports the impugned order and submits that the petitioner No.1 did not come forward to depose before the Court which compelled the respondent No.1 to file an application to summon her. It is submitted that the law does not prohibit summoning of opposite party as a witness, which has been rightly considered by the Trial Court taking into consideration the decision of this Court. Hence, he seeks to dismiss the petition.

5. I have heard the arguments of the learned counsel for the petitioners, learned counsel for the respondent No.1 and perused the material available on record. I have given my anxious consideration to the submissions advanced on both the sides.

6. The material on record indicates that the plaintiff- respondent No.1 filed O.S.No.80/2017 against the petitioners and the respondent Nos.2 and 3 for the relief of specific performance of the contract. The petitioners denied the execution of the agreement of sale as contended in the plaint and sought for dismissal of the suit. The records indicate that the respondent No.1 examined 3 witnesses as PWs-1 to 3 to prove the agreement of sale in question. Thereafter, filed an application under Order XVI Rules 1 and 2 of the Code of Civil Procedure , 1908, seeking to condone the delay in filing the additional list of witnesses and also permission to examine them. The affidavit filed in support of the application indicates that the petitioner No.1 and her husband were in need of money. Hence, they offered to sell the suit schedule property in favour of the respondent No.1 and after negotiations, entered the agreement of sale on 11.07.2015. It is further averred that the petitioners denied the plaint averments. However, the petitioner No.1-defendant No.1 did not enter the witness box. The defendant No.4 was examined as DW-2 and got