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D.P.WADHWA, S.SAGHIR AHMAD
Vidhyadhar – Appellant
Versus
Mankikrao – Respondent
Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct. [1000036480014]
This, by itself, is enough to reject the claim that the transaction of sale between defendant No. 2 and the plaintiff was a bogus transaction. [1000036480013]
Subject to the provisions of sub-rule (3) of Rule 1, any party to the suit may, without applying for summons under rule (1), bring any witness to give evidence or to produce documents. (!)
In view of the above, even though the name of Defendant No. 2 was not mentioned in the list of witnesses furnished by the plaintiff, he was properly examined as a witness and his testimony was not open to any criticism on the ground that he was produced as a witness without being summoned through the Court and without his name being mentioned in the list of witnesses. [1000036480027]
Judgment
S. Saghir Ahmad, J.-Leave granted.
2. Vidhyadhar, the appellant before us, who shall hereinafter be referred to as plaintiff, had instituted a suit against the respondents, who shall hereinafter be referred to as defendant Nos. 1 and 2 respectively, for redemption of the mortgage by conditional sale or in the alternative for a decree for specific performance of the contract for repurchase which was decreed by the trial Court on 29.4.1975. The decree was upheld by the Lower Appellate Court by its judgment dated 28.9.1976 but the High Court, by the impugned judgment dated 3.5.1991, set aside both the judgments and passed a unique order to which a reference shall be made presently in this judgment. The plaintiff is in appeal before us.
3. The property in dispute is 4.04 acres of land of survey plot No. 15 of Kasba Amdapur, District Buldana. The whole area of survey plot No. 15 is 16.09 acres and except the land in dispute, namely, an area of 4.04 acres, the entire land is in possession of the plaintiff. Defendant No. 2 was the owner of the whole Plot No. 15. On 24th of March, 1971, he executed a document styled as “Kararkharedi” in favour of defendant No. 1 for a sum of Rs. 150
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