Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Mad) 2496

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. VIJAYAKUMAR, J.
P. Duraisamy - Petitioner
Versus
T.G. Bavani Shankar Iyer - Respondent
C.R.P. (MD) Nos. 144, 145 of 2018, C.M.P. (MD) No. 597 of 2018
Decided On : 26-07-2024

Advocates:
Advocate Appeared:
For the Petitioner: J. Anandhavalli
For the Respondents: Veera Kathiravan, M.P. Senthil, R. Sundar

A co-defendant can be compelled to testify if good cause is shown, and the Court has discretion over such requests.

Headnote:(A) Code of Civil Procedure - Order 16 Rules 14 and 21 - Re-opening evidence and examination of a co-defendant as a Court witness - The trial Court's allowance of applications to re-open evidence and examine the 6th defendant as a Court witness was upheld as the 6th defendant's role is pivotal in the transaction - The plaintiff's arguments were dismissed on grounds of their failure to demonstrate prejudice from such examination. (Paras 20-30)

(B) Examination of witnesses - A party has the right to call upon a co-defendant to testify if good cause is shown, and it is within the Court's discretion to allow such requests. (Paras 20-22)

Facts of the case:
The plaintiff sought specific performance of a sale agreement executed by the 6th defendant who was alleged to have acted on behalf of the owners. The 7th defendant contended the power of attorney was cancelled prior to the sale agreement's execution.

Findings of Court:
The Court found no error or illegality in the trial Court allowing the examination of the 6th defendant as a Court witness.

Issues: Whether the presence of the 6th defendant as a Court witness is necessary and if good cause for such examination was shown.

Ratio Decidendi: The Court upheld that the 6th defendant could be examined based on the significance of his role and the interests of all parties, determining that good cause was established for his testimony.

Result: Revision petitions dismissed.

Table of Content
1. details surrounding the specific performance claim. (Para 3 , 4 , 5 , 6)
2. arguments regarding rights through the sale agreement. (Para 12 , 13)
3. observations on co-defendant examination importance. (Para 19 , 20 , 21 , 24)
4. final dismissal of both petitions. (Para 29)

ORDER :

R. VIJAYAKUMAR, J.

1. The plaintiff in O.S.No.50 of 2009 on the file of the First Additional District Court (PCR), Trichy is the petitioner in both the revision petitions.

2. The 7^th defendant in the said suit had filed an application to re-open the defendants' side evidence and to examine the 6^th defendant as a Court witness. These two applications were allowed by the trial Court. Challenging the same, the present revision petitions have been filed by the plaintiff.

(A)Facts leading to the filing of these revision petitions are as follows:

3. The revision petitioner herein as plaintiff has filed the above said suit for the relief of specific performance of a sale agreement dated 07.03.2007 said to have been executed by the defendants 1 to 5 through their power agent namely the 6^th defendant.

4. The plaintiff had contended that the defendants 1 to 5 are the owners of the property and they had executed a registered power of attorney in favour of the 6^th defendant on 24.05.2004. Based upon the said power deed, the 6^th defendant had executed a sale agreement in favour of the plaintiff on 07.03.2007 for a total sale consideration of Rs.13,00,000/-. On the date of the agreement itself, the entire sale consideration of Rs.13,00,000/- was paid and the time was fixed as six months for completion of the sale deed.

5. The plaintiff had further contended that since the 6^th defendant has not come forward to execute a sale deed, he had issued a legal notice on 09.05.2007 for which the 6^th defendant had issued a reply notice on 28.05.2007 agreeing to execute a sale deed as early as possible. Since the said undertaking of the 6^th defendant was not complied with, a second legal notice was issued by the plaintiff to the 6^th defendant on 16.08.2008. Since there was no response from the 6^th defendant, the present suit for specific performance has been filed.

6.Pending suit, one T.G.Bavani Sankar Iyer had filed I.A.No.135 of 2014 to implead himself as the 7^th defendant and the said application was allowed on 30.04.2014. It is contended by the 7^th defendant that the power of attorney in favour of the 6^th defendant said to have been executed by the defendants 1 to 5 was cancelled by a registered document dated 19.06.2007. Thereafter out of the five owners, defendants 1 to 4 have executed a registered sale deed in favour of the 7^th defendant on 30.11.2011. Hence, he had contended that he is a necessary party to the proceedings.

7.On 19.10.2008, the first defendant had executed a power of attorney in favour of the 8^th defendant. The said power of attorney is said to have been cancelled on a later date. However, based upon the said power deed, the 8^th defendant is said to have executed a sale deed in favour of the 9^th defendant on 27.08.2012.

8.In the written statement filed by the first defendant ( which was adopted by the other defendants), it is contended that the general power of attorney, executed in favour of the 6^th defendant on 24.05.2004 only as a security for the amount borrowed from him and there was no intention to permit the 6^th defendant to enter into any sale agreement or sale deed.

9.The 7^th defendant in the suit had filed I.A.No.454 of 2016 under Order 16 Rule 14 C.P.C to examine the 6^th defendant in the suit as a Court witness on the ground that he is involved in all the transactions and he is aware of all the facts of the case. It was further contended that the 6^th defendant had executed two registered sale deeds in favour of his wife on 08.10.2007 on the basis of the general power of attorney dated 24.05.2004 especially after the cancellation of the power deed. The said application was dismissed by the trial Court by an order dated 02.01.2017. The sa