A party cannot summon a witness for cross-examination without prior examination-in-chief; persistent frivolous applications to delay proceedings are deemed an abuse of process.

ORDER :

(M. NAGAPRASANNA, J.)

The petitioner is before this Court, calling in question an order dated 03-04-2025, passed by the XXXI Additional City Civil and Sessions Judge, Bengaluru in O.S.No.1963 of 2002 rejecting application in I.A.No.XCII filed under Order XVI Rule 1(2) of the Code of Civil Procedure for summoning of witnesses.

2. Heard Sri A.Mahesh Chowdhary, learned counsel appearing for the petitioner and Sri Udaya Holla, learned senior counsel appearing for the respondents.

3. Facts, in brief, germane are as follows: -

On 03-09-1892 one Srinivas Raju Gabriel purchases the suit schedule property. In 1950 it transpires that Srinivas Raju Gabriel and his family permitted the grand father of the petitioner/defendant to reside in the suit schedule property and the petitioner is said to be in possession of the same now. In the year 2002, one Jyotendra Sinhji Vikramsinhji files a suit for injunction against the petitioner and for delivery of vacant possession of the property. The suit since then is on. Several proceedings, at intermittent intervals, are instituted by the plaintiff by filing applications one after the other and orders on those being challenged before this Court. The issue now is with regard to an application filed in I.A.No.XCII. Three applications come to be filed by the petitioner in I.A.Nos. XC, XCI and XCII. I.A.Nos. XC and XCI were preferred under Order XVIII Rule 17 CPC seeking recall and reopen of the stage of cross- examination of the respondents. On 14-03-2025 the petitioner files a memo stating that he is not pressing I.A.Nos. XC and XCI, but addresses arguments on I.A.No.XCII filed under Order XVI Rule 1(2) of the CPC seeking summoning of witnesses. This comes to be dismissed; the dismissal of which has led the petitioner to this Court in the subject petition.

4. The learned counsel Sri A. Mahesh Chowdhary appearing for the petitioner would vehemently contend that summoning of witnesses, as obtaining in the application, is imperative to decide whether the petitioner was a tenant in the property or he was inducted otherwise. The learned counsel would submit that the dismissal of the application, in a perfunctory way, is contrary to law and if the witnesses summoned, examination can be done and proceedings would get concluded immediately.

5. Per contra, the learned senior counsel Sri Udaya Holla appearing for the respondents would contend that this very petitioner had filed applications, I.A.No.LVIII and LIX to summon the plaintiff as a witness and to cross-examine him. The said applications come to be allowed by the concerned Court, which was challenged before this Court in Writ Petition No.52330 of 2019. The order comes to be set aside holding that the plaintiff cannot be summoned for deposing as a witness of the defendant. The said order in Writ Petition No.52330 of 2019 has become final. The petitioner again files the same application to summon the plaintiff as his witness. This is only to drag on the proceedings, as the petitioner is squatting over the property for the last 22 years as a tenant without paying a rupee of rent.

6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

7. The issue in the present lis lies in a narrow compass.

The application, I.A.No.XCII filed by the petitioner is necessary to be noticed. The application is as follows:

“APPLICATION UNDER ORDER XVI RULE 1(2) R/W SECTION 151 OF THE CIVIL PROCEDURE CODE , 1908

For the reasons stated in the accompanying affidavit, the counsel for the Defendant most humbly prays that this Hon’ble Court may be pleased to summon the following witnesses and permit me to examine and cross-examine the following witnesses as their eviden