ORDER:

Plaintiff in the suit filed the present civil revision petition under Article 227 of the Constitution of India aggrieved by the order, 06.05.2022 passed in I.A.No.154 of 2022 in O.S.No.140 of 2015 on the file of learned Senior Civil Judge, Bobbili.

2. Petitioner/plaintiff filed O.S.No.140 of 2015 against respondent/defendant for specific performance of agreement dated 31.03.2013 and other reliefs.

3. In the plaint it was contended interalia that plaintiff accepted the offer of the defendant to purchase the suit schedule property at Rs.2,00,000/- per acre and paid an amount of Rs.1,00,000/- as advance on the date of agreement of sale, dated 31.03.2013; that plaintiff made part payment of Rs.2,00,000/-; that plaintiff also paid part payment of Rs.1,00,000/- to the defendant’s father on 15.06.2013; that plaintiff paid Rs.4,00,000/- out of total consideration; that time is not essence of the contract; that plaintiff came to know that defendant is making efforts to alienate the plaint schedule property to third parties and thus, suit was filed.

4. Defendant filed written statement and is contesting the suit.

5. Pending the suit, petitioner filed I.A.No.54 of 2021 to summon father of the defendant to confront the receipt marked as Ex.A5. However, the said application was closed. After the defendant’s evidence, present I.A. is filed under Order XVI Rule 4 of CPC to summon father of defendant No.1 as Court witness. 6. In the affidavit filed in support of the petition it was contended that the petitioner/plaintiff paid part payment of Rs.1,00,000/- to the father of the respondent/defendant who in turn issued receipt, dated 15.06.2013, in his own handwriting and to prove the said fact, application is filed to summon father of the respondent/defendant, K. Suresh Patnaik @ Kurmananda Patnaik, as court witness.

7. Counter was filed by the respondent/defendant opposing the application.

8. The trial Court by order, dated 06.05.2022 dismissed the application against which the present revision is filed.

9. Heard Sri K. Sitaram, learned counsel for the petitioner and Ms. Gnanusha, learned counsel representing Sri E.V.S.S.

Ravi Kumar, learned counsel for the respondent.

10. Learned counsel for the petitioner/plaitiff would contend that application is filed since respondent/defendant did not examine his father. In fact, in the plaint, itself averment was made with regard to payment of Rs.1,00,000/- to the father of the respondent/defendant and the same was denied by the respondent/defendant. Since defendant denied the said receipt of Rs.1,00,000/-, it necessitated the plaintiff, being a suit for specific performance, to file the application to examine father of the defendant as Court witness. In fact, plaintiff filed I.A.No.54 of 2021 during the course of his evidence and the same was closed. Since the defendant did not examine his father, after closure of evidence of the defendant, the present application is filed.

11. Per contra, learned counsel for the respondent/defendant would contend that plaintiff cannot compel a third party to examine as a Court witness unless the court satisfies that examination of witness is necessary. According to learned counsel for the respondent/defendant, the lower Court exercised the discretion in proper perspective and it does not call for interference of this Court under Article 227 of the Constitution of India.

12. Admittedly suit O.S.No.140 of 2015 was filed for specific performance of agreement of sale and other reliefs. Specific averment was made by the plaintiff in the plaint regarding payment of Rs.1,00,000/- to the father of the defendant under receipt, dated 15.06.2013. The said receipt was marked as Ex.A5. Plaintiff, apart from examining himself, also examined another person in support of his plea of payment of Rs.1,00,000/-. Further petitioner/plaintiff also cross-examined DW1 with regard to payment, said to be made under Ex.A5/receipt.

13. Order XVI Rule 14 contemplates that Court may summon strangers to