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2025 Supreme(Telangana) 1352
IN THE HIGH COURT OF TELANGANA
P.Sam Koshy, A.C.J.
Kummari Chennaiah – Appellant
Versus
Sri K Raja Shekar – Respondent
Civil Revision Petition No.1213 of 2025 and Civil Revision Petition No.1226 of 2025
Decided On : 18-07-2025
Advocate Appeared:
For the Appellant : S.NAGESH REDDY
For the Respondent: KULDEEP JADHAV
The burden of proof lies exclusively with the plaintiff in a suit for specific performance, and a non-contesting defendant cannot be compelled to appear as a witness to support the plaintiff's case.
Headnote:(A) Constitution of India - Article 227 - Civil Procedure Code, 1908 - Sections 151, Order VII, Order XVI - Civil Revision Petitions filed against a common order directing a defendant to appear for cross-examination were allowed. The court ruled that the plaintiff cannot compel the defendant to provide evidence after failing to contest. It underscored the burden of proof lies solely with the plaintiff to support their case. The impugned order was deemed improper and was quashed. (Paras 4, 6, 14, 18)
Facts of the case:
The plaintiff sought specific performance of a sale agreement and the involvement of a defendant who opted not to contest. Applications were made by the plaintiff for reopening the case and summons issuance to the defendant. The trial court allowed these applications.
Findings of Court:
The court found that compelling the non-contesting defendant to show up was not justified as it contradicts the established burden of proof that rests exclusively on the plaintiff to prove their case without relying on the defendant.
Issues: The main issues included whether a non-contesting defendant could be summoned to lead evidence and the impact of the burden of proof in a case for specific performance.
Ratio Decidendi: The court reiterated that the burden of establishing the case lies solely with the plaintiff, and the defendant, who decided not to contest, could not be forced to appear as a witness, which may suggest connivance with the plaintiff. The application was seen as an attempt to improve the plaintiff's case unlawfully.
Result: Civil Revision Petitions allowed.
| Table of Content |
|---|
| 1. common order for multiple petitions (Para 1 , 2) |
| 2. details of filed civil revision petitions and trial proceedings (Para 3 , 4 , 5 , 6) |
| 3. arguments regarding necessity of witness (Para 7 , 8 , 9 , 10) |
| 4. legal provisions under cpc regarding witness summoning (Para 11 , 12) |
| 5. burden of proof and expectation of plaintiff (Para 13 , 14) |
| 6. judicial precedents on burden of proof (Para 15 , 16) |
| 7. distinction of applicable cases in witness summoning (Para 17) |
| 8. conclusion quashing trial court's order (Para 18 , 19) |
ORDER :
P. Sam Koshy, A.C.J.
Since the issue arising in the instant Civil Revision Petitions is one and the same and the parties thereto are also same, the Civil Revision Petitions are being disposed of by this Common Order.
2. Heard Ms.K. Gayatri, learned counsel representing Mr.S. Nagesh Reddy, learned counsel for the petitioners (defendant Nos.4, 11 & 12); and Mr. Kuldeep Jadhav, learned Counsel for respondent No.1 (plaintiff).
3. Civil Revision Petition Nos.1213 of 2025 and 1226 of 2025 are filed by the petitioners under Article 227 of the Constitution of India assailing the Common Order dated 25.03.2025 passed in I.A.Nos.64 & 65 of 2025 in O.S.No.317 of 2020 passed by the I Additional Junior Civil Judge, at Shadnagar (for short, ‘the impugned Common Order’)
4. Vide the impugned common order, the Trial Court allowed the above applications, viz., I.A.Nos.64 & 65 of 2025 in O.S.No.317 of 2020 and directed respondent No.2 (defendant No.1 before the trial court) to appear before the Trial court on the next date of hearing for cross-examination.
5. I.A.No.64 of 2025 in O.S.No.317 of 2020 was filed by respondent No.1 (plaintiff) under Section 151 of the Civil Procedure Code, 1908 praying the Trial Court to reopen the matter for the purpose of examining the evidence of respondent No.2 (defendant No.1); and I.A.No.65 of 2025 in O.S.No.317 of 2020 was filed by respondent No.1 (plaintiff) under Order XVI Rule 1 read with Section 151 of Civil Procedure Code, 1908 praying the Trial Court to issue summons to respondent No.2 (defendant No.1).
6. Initially, the suit was filed by respondent No.1 (plaintiff) under Order VII Rules 1 to 7 read with Section 151 of Civil Procedure Code, 1908 seeking for specific performance of an Agreement of Sale dated 08.05.2017; to declare the sale deed bearing Document No.7621 of 2017, dated 28.10.2017, as being null and void and not binding on respondent No.1 (plaintiff); and in the alternative, respondent No.1 (plaintiff) had also sought for an alternative relief with a direction to the respondents (defendants) to pay an amount of Rs.10.5 lakhs along with interest @ 24% p.a. from the agreement, i.e., 08.05.2017 to 08.11.2020, and for other reliefs.
7. Learned counsel for the petitioners contended that respondent No.2 (defendant No.1) was set ex parte and he has, in spite of proper service, decided not to contest the case; neither respondent No.2 (defendant No.1) has filed any written statement either supporting respondent No.1 (plaintiff) nor opposed the suit filed by respondent No.1 (plaintiff); the suit filed by the respondent No.1 (plaintiff) was opposed only by the petitioners (defendant Nos.4, 11 & 12) and all other respondents / defendants in the suit, viz., defendant Nos.1 to 3 and 5 to 10 have remained ex parte; the suit had proceeded in its usual course and respondent No.1 (plaintiff) was examined and documents were also marked; respondent No.1 (plaintiff) was examined by one of the contesting defendants, viz., defendant No.4 and thereafter the defendant No.4 was also examined and the matter was fixed for final arguments.
8. Learned counsel for the petitioners further contended that arguments on behalf of respondent No.1 (plaintiff) were also heard by the Trial Court; it was at this juncture that the respondents have filed a petition under Section 39(1) of Bharatiya Sakshya Adhiniyam, 2023 in respect of a document being sent for an expert opinion, and the expert’s opinion was also re
