Summoning a defendant as the plaintiff's witness is discouraged and should occur only in exceptional circumstances; the plaintiff must bear the burden of proof.

JUDGMENT :

Nidhi Gupta, J.

Prayer in the present Revision Petition, is for setting aside order dated 23.07.2021 (Annexure P1) whereby learned trial Court has allowed interim miscellaneous application dated 15.01.2020 (Annexure P12) filed by respondent No.1/plaintiff, seeking to examine the petitioner/defendant No.2, as its own witness during evidence of plaintiff.

2. Brief facts of the case are that on 16.11.2018, the plaintiff instituted a Suit (Annexure P2) for recovery of Rs.90,62,400/- against the defendants No.1 and 2/proforma respondent No.2 and the petitioner herein, respectively. Upon notice, the petitioner and respondent No.2 appeared and filed joint written statement dated 17.05.2019 (Annexure P3), in the said Suit. It is the pleaded case of the plaintiff that he is a property dealer who deals in real estate and sale & purchase of immovable properties. Respondent No.2 and the petitioner who were in possession of the suit property as described in the head note of the plaint, were desirous of selling the same and therefore, approached plaintiff for sale of said property.

3. It is the case of the plaintiff that upon sale of the suit property he was entitled to claim commission @ 2% of the sale proceeds along with GST at the applicable rate. As per Agreement to Sell dated 07.05.2018 executed between sellers and purchasers, either sellers or purchasers would pay commission to respondent No.1 along with GST. In pursuance to the said Agreement to Sell dated 07.05.2018, Sale Deed dated 16.07.2018 was executed in respect of the suit property between 'sellers'/being the petitioner and respondent No.2 herein, and the 'purchasers'/being one Mr. Vijay Kumar Bhandari and 3 others. It was the grievance of the plaintiff that he was not paid the commission as agreed upon at the time of Agreement to Sell. Accordingly, the plaintiff/respondent No.1 herein, filed Suit for recovery of the aforesaid amount, wherein a joint written statement is filed by the petitioner and respondent No.2.

4. Vide order dated 17.07.2019, following issues were framed in the matter:-

"i. Whether Plaintiff is entitled to a decree for recovery of Rs.93,34,272/- along with interest as prayed for? (OPP)

ii. Whether suit is not maintainable in the present form? (OPD)

iii. Relief."

5. That during pendency of the said Suit, on 15.01.2020, the plaintiff moved an interim miscellaneous application (Annexure P12) for examination of the petitioner as its own witness. The petitioner and respondent No.2 herein filed common reply dated 18.02.2020 (Annexure P13) to the aforesaid application. It is this application which has been allowed by the learned trial Court vide impugned order dated 23.07.2021 (Annexure P1). Hence, present Revision Petition.

6. It is vehemently submitted by learned Senior Counsel for the petitioner that it is a well-established principle in law that in adversarial litigation, practice of summoning defendant/opposite party as own witness is deprecable. It is submitted that in the plaint, there is no mention whatsoever of the petitioner. It is submitted that admittedly, Sale Deed dated 16.07.2018 did not bear petitioner's signature, and that the same had been signed by one R.K. Gupta on behalf of defendant No.1/respondent No.2-Company. It is submitted that therefore, there was no occasion or need to summon petitioner as a witness, and it is clear that application filed by plaintiff was mala fide and vexatious as the petitioner is only a Director of the respondent No.2-company and has only signed the attorney for defending Civil Suit.

7. It is further submitted that application in question is a vexatious attempt on part of the plaintiff to further delay the Civil Suit. It is stated that it is evident from the record of the case, in particular from perusal of zimni orders Annexure P4 to Annexure P11, that the plaintiff has indulged in every endeavor to delay the suit on one pretext or the other, and the present application is another such manoeuvre. It is stated that