THE HONOURABLE SMT. JUSTICE RENUKA YARA CIVIL REVISION PETITION No.3493 of 2024

ORDER:

Heard Sri K. Jagdishwar Reddy, learned counsel for the revision petitioners and Sri Mogili Anaveni, learned counsel for the respondents.

Perused the entire record.

2. This Civil Revision Petition is filed by the revision petitioners/defendants aggrieved by the order dated 06.09.2024 in I.A.No.445 of 2024 in O.S.No.123 of 2017 on the file of the Principal District and Sessions Judge, Bhongir, (‘trial Court’), wherein petition filed under Order XVI Rule 1 (2) read with Section 151 of C.P.C., to summon respondent No.1/plaintiff No.1 for the purpose of cross-examination, has been dismissed.

3. The brief facts of the case are that respondent Nos.1 and 2 have filed suit for specific performance of agreement of sale dated 24.01.2016 with respect to agricultural dry and wet lands in Sy.No.139 to an extent of Ac.19-07 guntas situated at Duppelli Village, Athmakoor Mandal, Nalgonda District. In the said suit, the I.A. under revision is filed to summon respondent No.1/plaintiff No.1 as witness on the ground that the suit for specific performance is filed on the basis of false, fabricated and tampered document. Currently, the case is at the stage of evidence of defendants and respondent No.1 did not enter witness box. The revision petitioners herein intend to pose certain crucial questions in respect of documents marked on behalf of respondents. Therefore, the I.A. under revision is filed to summon respondent No.1 for the purpose of cross-

examination.

4. Respondent No.2 as power of attorney holder of respondent No.1 opposed the I.A. under revision stating that she has been given power of attorney by respondent No.1 and to that effect an application was filed under Rule 32 of the Civil Rules of Practice by respondent No.2 to represent respondent No.1 and said application was allowed by the trial Court. Respondent No.2 was examined as P.W.1 and the matter is coming for evidence of defendants. Respondent No.1 is unable to give evidence due to his old age ailments, therefore, power of attorney is given to respondent No.2. Further, respondent No.2 is a co-agreement holder along with respondent No.1 and therefore, has knowledge about the facts of the case and therefore, competent to give evidence on behalf of both the respondents. According to respondent No.2, no purpose will be served by summoning respondent No.1 for cross-examination. Reference is made to judgment in the case of M. Muniswami Naidu v. K. Nagamani, 1997 (1) ALD 144, wherein an application filed to summon the witness whose name does not figure in the list of witness has been dismissed. Further, reference is made to the judgment of High Court of Delhi in Dr. Amitabha Sen v. Sports World International Limited, AIR 2008 DELHI 118, wherein it is held that purpose for summoning the witness has to be stated and when such purpose is not stated the relief of summoning witness has to be denied.

5. Upon hearing both sides, the trial Court has dismissed the I.A. under revision leading to filing of the present Civil Revision Petition.

6. In the grounds of revision, it is pleaded that the presence of respondent No.1 is necessary to confront documents executed by him along with respondent No.2. The chief affidavit is filed by respondent No.2 only on her behalf and therefore, her evidence cannot be equated as evidence of respondent No.1. Further, it is pleaded that holding of power of attorney on behalf of respondent No.1 does not mean that respondent No.2 can replace respondent No.1. Referring to Order XVI Rule 14 of C.P.C., it is pleaded that the Court can summon any witness, who is not called as witness and therefore, either parties or Court can summon a person, who is not called as witness by the parties to the suit. The Revision petitioners

contended that the trial Court erred in holding that plaintiffs can make choice of adducing evidence and the same according to the revision petitioners is contrary to law.