1. Suit for specific performance of an agreement of sale — Reopening of evidence to summon defendant. (Para 1 , 3 , 4 , 5 , 6 )
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2025 Supreme(Online)(Tel) 75145
IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
P. Sam Koshy, ACJ
Kummari Chennaiah – Appellant
Versus
Sri K Raja Shekar – Respondent
Civil Revision Petition No.1213 of 2025 | Civil Revision Petition No.1226 of 2025
Advocates:
For the Appellants/Petitioners: K. Gayatri, S. Nagesh Reddy
For the Respondents: Kuldeep Jadhav
For the Appellants/Petitioners: K. Gayatri, S. Nagesh Reddy
For the Respondents: Kuldeep Jadhav
Important Points
In a suit for specific performance, the plaintiff must prove their case on their own strength. An ex parte defendant cannot be compelled to testify as a witness to support the plaintiff, as this would be illogical and contrary to the burden of proof.
Subject
Civil Law - Procedural Law
Act Referred
Constitution of India: Art.227
Civil Procedure Code, 1908: S.151, O.XVI R.1, O.VII R.1, O.VII R.2, O.VII R.3, O.VII R.4, O.VII R.5, O.VII R.6, O.VII R.7
Bharatiya Sakshya Adhiniyam, 2023: S.39(1)
Civil Procedure Code, 1908: S.151, O.XVI R.1, O.VII R.1, O.VII R.2, O.VII R.3, O.VII R.4, O.VII R.5, O.VII R.6, O.VII R.7
Bharatiya Sakshya Adhiniyam, 2023: S.39(1)
Headnote
(A) Constitution of India - Art. 227; Civil Procedure Code, 1908 - Order XVI Rule 1 and Section 151; Bharatiya Sakshya Adhiniyam, 2023 - S. 39(1) - Summoning of witnesses - A party cannot be compelled to appear as a witness to support the case of the opposite party, especially when that party has chosen to remain ex parte. The summoning of an opposite party is permitted only in the rarest of rare cases when unavoidable in the interest of justice and requires cogent reasons. (Paras 13, 14, 15)
(B) Burden of Proof - In suits for specific performance or declaration of title, the burden of establishing the case lies exclusively with the plaintiff. The plaintiff must succeed on the strength of their own title and evidence, and cannot rely on the weakness of the defendant's case or the testimony of an ex parte defendant to improve their standing. (Paras 14, 16)
Facts of the case:
Plaintiff filed a suit for specific performance of an Agreement of Sale and for declaring a subsequent sale deed null and void. Certain defendants, including Defendant No. 1, remained ex parte despite service of notice. After obtaining an expert opinion on a disputed document, the plaintiff filed applications to reopen the matter and summon Defendant No. 1 as a witness to support the plaintiff's case. The Trial Court allowed these applications, which was subsequently challenged by other contesting defendants via Civil Revision Petitions.
Findings of Court:
The request to call an ex parte defendant as a witness to lead evidence in support of the plaintiff is illogical and suggests potential connivance. Since the burden of proof in a suit for specific performance rests solely on the plaintiff, they cannot compel a non-contesting defendant to testify in their favor.
Issues: Whether the Trial Court was justified in allowing the plaintiff to summon an ex parte defendant as a witness to support the plaintiff's case in a suit for specific performance.
Ratio Decidendi: In a suit for specific performance or declaration of title, the plaintiff must establish their case on the strength of their own evidence. A party who has knowingly chosen not to contest the suit cannot be compelled to appear as a witness to support the plaintiff's contentions.
Result: Civil Revision Petitions allowed.
(B) Burden of Proof - In suits for specific performance or declaration of title, the burden of establishing the case lies exclusively with the plaintiff. The plaintiff must succeed on the strength of their own title and evidence, and cannot rely on the weakness of the defendant's case or the testimony of an ex parte defendant to improve their standing. (Paras 14, 16)
Facts of the case:
Plaintiff filed a suit for specific performance of an Agreement of Sale and for declaring a subsequent sale deed null and void. Certain defendants, including Defendant No. 1, remained ex parte despite service of notice. After obtaining an expert opinion on a disputed document, the plaintiff filed applications to reopen the matter and summon Defendant No. 1 as a witness to support the plaintiff's case. The Trial Court allowed these applications, which was subsequently challenged by other contesting defendants via Civil Revision Petitions.
Findings of Court:
The request to call an ex parte defendant as a witness to lead evidence in support of the plaintiff is illogical and suggests potential connivance. Since the burden of proof in a suit for specific performance rests solely on the plaintiff, they cannot compel a non-contesting defendant to testify in their favor.
Issues: Whether the Trial Court was justified in allowing the plaintiff to summon an ex parte defendant as a witness to support the plaintiff's case in a suit for specific performance.
Ratio Decidendi: In a suit for specific performance or declaration of title, the plaintiff must establish their case on the strength of their own evidence. A party who has knowingly chosen not to contest the suit cannot be compelled to appear as a witness to support the plaintiff's contentions.
Result: Civil Revision Petitions allowed.
Legal Category Hierarchy
Table of Contents
2. Plaintiff sought to summon defendant as witness after expert opinion; defendants opposed as collusive attempt to improve case. (Para 7 , 8 , 9 , 10 )
3. Defendant chose not to contest; calling him as plaintiff's witness indicates connivance; plaintiff must prove case independently. (Para 13 , 14 , 15 , 16 , 17 )
4. A party cannot summon an opposite party as its witness to support its own case, especially when the opposite party has chosen not to contest. (Para 14 , 17 , 18 )
5. Civil Revision Petitions allowed; impugned order setting aside I.A.Nos.64 & 65 of 2025 set aside. (Para 18 , 19 )
6. Can a plaintiff compel a defendant who has chosen not to contest to appear as a plaintiff's witness?
No, the court held that summoning such a defendant is illogical and indicates possible connivance, as the plaintiff must prove his case independently. (Para 13 , 14 , 17 )
7. What factors must a court consider when deciding an application under Order XVI Rule 1 CPC to summon a witness?
The court must consider whether the request is belated, vexatious, or frivolous; examine the party's motives; and require cogent reasons, especially when summoning an opposite party. (Para 15 )
8. Does the burden of proof in a suit for specific performance shift to the defendant if they remain ex parte?
No, the burden remains exclusively on the plaintiff to establish their case on their own strength, irrespective of the defendant's absence or failure to contest. (Para 14 , 16 )
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.As 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 be issued to respondent No.2 (defendant No.1) for the that purpose.
9. Learned counsel for the petitioners further contended that the request for calling upon respondent No.2 as a court witness or wi
