A party unable or unwilling to contest cannot be compelled to testify as a witness; the burden of proof lies solely on the plaintiff in a specific performance case.

COMMON ORDER :

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 received thereon; it was after the obtaining of the expert’s opinion that respondent No.1 (plaintiff) has filed the above two I.A.s praying the Trial Court to call upon respondent No.2 (defendant No.1) as a witness and that he may be treated as a witness on behalf of respondent No.1 (plaintiff) or as a Court witness and that summons may