Compelling parties who are real opponents cannot be allowed to give evidence.

(Petition filed under Article 227 of the Constitution of India against the order dated 17.9.2004 and made in I.A.No.350/2003 in O.S.No.532/2000 on the file of the Sub Court, Karur.)

Defendants 4 & 5 in O.S.No.532/2000 on the file of the Sub Court, Karur are the revision petitioners.

2. Facts warranted for the disposal of the Civil Revision Petition:

(a) The first respondent in this revision petition as plaintiff filed a suit against the defendants, for recovery of a sum of Rs.1,37,911/- based upon a mortgage deed dated 28.3.1990 said to have been executed by the first defendant in favour of the bank, mortgaging the suit properties, for which respondents 2 & 3 stood as guarantor and that a portion of the property was purchased by the revision petitioners/defendants 4 & 5 and in this view, all are liable to pay the amount, in addition to the properties.

(b) The third defendant, by filing a written statement, opposed the claim, that the plaintiff bank at the first instance, has to proceed for the recovery of the mortgage loan only from the first defendant, then entitled to proceed as against 'B' Schedule properties and as such, the claim made against defendants 2 & 3 is not maintainable, in addition to raising some other defence also, which we are not very much concerned at present.

(c) The revision petitioners opposed the claim of the plaintiff, contending that they are not necessary parties to the suit, since they are not parties to the contract or agreement, that minor defendants had purchased some properties from the first defendant for valuable consideration on 21.6.1993 through registered sale deed and that the plaintiff ought to have taken steps at the earliest point of time, having failed, not entitled to proceed against the properties purchased by them, in addition to other defence also.

(d) On the basis of the plea and counter plea, parties went on trial before the trial Court. It appears the evidence on behalf of the plaintiff was closed and thereafter, defendants 2 & 3 had reported that they have no evidence, thereby avoiding stepping into the witness box. Thereafter, when the guardian of the minor defendants 4 & 5 gave evidence on behalf of defendants 2 & 3, who had reported that they have no evidence, he was cross examined by defendants 2 & 3. Only thereafter, invoking Order XVI Rule 1 of C.P.C. a petition has been filed, requesting the Court to issue summons to defendants 2 & 3, to appear before the Court for the purpose of examination by defendants 4 & 5/revision petitioners.

(e) In the affidavit, the reasons alleged for summoning or for the examination of defendants 2 & 3 are that the defendants 2 & 3 are not entitled to cross examine another defendant, that too, when they have reported no evidence and that violating the rules and practice of C.P.C., the counsel for defendants 2 & 3 had cross examined the guardian and therefore, it is just and necessary that defendants 2 & 3 should be summoned, in order to make clear some technical points, further alleging if defendants 2 & 3 have not cross examined the guardian, there might not have been any necessity for them, to summon defendants 2 & 3. In this way alone, as seen from the affidavit, an attempt was made by the revision petitioners to take out summons, through Court by moving the application, which was opposed.

(f) The plaintiff opposed the application stating, that the guardian had admitted, that she had purchased the properties in the name of minors, knowing fully well about the mortgage in favour of the bank, that in view of the admission, the scope of defence of defendants 4 & 5 i.e. the revision petitioners are very limited and in this view, summoning defendants 2 & 3 is unnecessary and this petition is aimed only to drag on the proceedings.

(g) Defendants 2 & 3, who are respondents 2 & 3 in this revision contended, that their cross examination of the guardian is not against any rules or law and since they have been cross examined, it is not mandatory