A party to the suit does not have a right as such to summon the opposite party to give evidence. It is left to the court, possibly after the evidence of all the witnesses made available is completed, to consider whether the examination of one of the parties who has not come before court is necessary and in that context, if found necessary, to compel that party to give evidence in exercise of its jurisdiction under R.14 of O. XVI of the Code.

Headnote:
specific performance - summoning of and attendance of witnesses - O.XVI - R.1, R.1-A, R.7, R.14, R.20, R.21 - The court has the power to direct a party to the suit present in court, or any other person present in court, to give evidence in the suit and if he were a party to the suit and he refuses to give evidence without lawful excuse, the power to pronounce judgment against that party or to make such order as the court may think fit. The court also has the right to proceed against a party summoned to give evidence as if he were a witness in the suit. In addition, under R.14 of O.XVI of the Code, the court has the power at any time it thinks necessary, to examine any person including a party to the suit as a witness. Until the amendment of R.14 by the Amendment Act of 1976, the power of the court under R.14 of O. XVI of the Code did not extend to insisting on a party to the suit, being examined. The power was only to examine any person other than a party to the suit and to summon that party and proceed in terms of R.15 of the Code. By the 1976 amendment of the Code, no alternation was made to the Code of 1908 without State amendments to R.7 or R.21 of O. XVI. The only significant amendment was to R.14 of O. XVI by substituting in the place of any person excluding a party to the suit the expression 'any person including a party to the suit'. It is clear from R.14 of O. XVI of the Code as amended that the court has the power when it thinks it necessary to examine a party to the suit or to compel a party to the suit to give evidence so as to enable the court to take a decision satisfactory to its conscience. But this power available to the court and made specifically available by the amendment brought to R.14 cannot be confused with the right of a party to call upon an opposite party to give evidence on his behalf. A plaintiff like the one in the present case, cannot as a matter of course include the defendant in his schedule of witnesses and as of right seek the issuance of summons to the defendant for being examined as a witness on his own behalf.
Fact of the Case:

The plaintiffs filed a suit for specific performance of an agreement to sell immovable property. They sought to serve interrogatories on the defendants and later filed an application to issue summons for appearance of the defendants as witnesses. The trial court dismissed the application, leading to the filing of a Revision before the High Court.
Finding of the Court:

The court found that a party to the suit does not have a right as such to summon the opposite party to give evidence. It is left to the court, possibly after the evidence of all the witnesses made available is completed, to consider whether the examination of one of the parties who has not come before court is necessary and in that context, if found necessary, to compel that party to give evidence in exercise of its jurisdiction under R.14 of O. XVI of the Code. The court confirmed the order of the trial court and dismissed the Revision.
Issues: The main issue was whether a party to the suit has the right to summon the opposite party to give evidence in a suit for specific performance of an agreement to sell immovable property.
Ratio Decidendi: The court held that a party to the suit does not have a right as such to summon the opposite party to give evidence. It is left to the court, possibly after the evidence of all the witnesses made available is completed, to consider whether the examination of one of the parties who has not come before court is necessary and in that context, if found necessary, to compel that party to give evidence in exercise of its jurisdiction under R.14 of O. XVI of the Code.
Final Decision: The court confirmed the order of the trial court and dismissed the Revision.

Judgement Key Points

Based on the provided legal document, the key points are as follows:

A party to a suit does not have an automatic right to summon the opposite party to give evidence. The court has the discretion to consider whether the examination of the opposing party is necessary after the evidence of all witnesses is available, and can compel such examination only under specific jurisdictional provisions (!) (!) .
The court's power to examine a party or to compel a party to give evidence is explicitly provided under certain rules, notably R.14 of O. XVI of the Civil Procedure Code, which was amended to include parties as persons who can be examined if the court deems it necessary (!) (!) (!) .
The court has the authority to direct a party present in court to give evidence or produce documents, and to proceed against a party who refuses to give evidence without lawful excuse, including pronouncing judgment against that party (!) (!) .
The power to examine a party under R.14 is distinct from the right of a party to call the opposite party as a witness. The latter is not a right but a procedural option, and such a summons cannot be issued as a matter of course by a party to the suit (!) (!) (!) .
Historical legal principles and prior judicial opinions emphasize that summoning the opposite party as a witness is not a right of the parties but a power exercised by the court, which should be used judiciously and not as a tool for harassment or improper practice (!) (!) .
Amendments to the Civil Procedure Code, particularly the 1976 amendments, clarified the scope of the court's power, enlarging it to include summoning parties for examination but not conferring a right on parties to compel the opposite party's examination (!) (!) .
The court's discretion is paramount in such matters, and in the case at hand, the court was justified in refusing to summon the defendants as witnesses, as the plaintiffs did not establish a necessary or justified reason for such summons (!) (!) .
The procedural rules and amendments, including local amendments, have been interpreted to confirm that the court, rather than the parties, holds the authority to summon witnesses, including the opposite party, based on necessity and judicial discretion (!) (!) .
The decision confirms that the court's refusal to summon the defendants as witnesses was within its jurisdiction and proper exercise of discretion, and thus no jurisdictional error or irregularity was found in the lower court's order (!) .
Overall, the legal framework emphasizes the court’s role in managing witness examination and clarifies that parties do not possess an inherent right to summon their opponents as witnesses without court approval or necessity (!) (!) .

Judgment :-

P.K. Balasubramanyan, J.

The plaintiffs in a suit for specific performance of an agreement to sell immovable property are the petitioners. The plaintiffs filed the suit for specific performance on 4.10.1995. Defendants 1 to 8 appeared and filed written statements. Defendant No. 9 did not appear to contest. The contesting defendants in their written statements denied the claim of the plaintiffs. The trial court settled the issues on 17.10.1996. The plaintiffs sought to serve interrogatories on defendants 1 to 8. Though that application was opposed, ultimately the same was allowed by the trial court. Attempts made by defendants 1 to 5 in one set and defendants 6 to 8 in another to have that order set aside did not succeed. What according to them were answers to the interrogatories were furnished by the defendants. There was a complaint by the plaintiffs that the answers to the interrogatories were not complete and seeking the striking out of the defence in terms of R.21 of O.XV/ of the Code of Civil Procedure. Ultimately the trial court posted the suit for steps and trial. The plaintiffs filed a list of witnesses. In that list the plaintiffs included defendants 1 to 8 also as witnesses to be examined on their behalf. One of the plaintiffs was examined on behalf of the plaintiffs. An officer from the Income Tax Department was also examined. At that stage the plaintiffs filed I.A. 1480 of 1999 praying that summons be issued for appearance of witnesses shown as serial Nos. 11 to 18 in the schedule of witnesses, being defendants 1 to 8 in the suit for giving evidence. This application was opposed by the defendants. The trial court considered the application and relying on the decisions which suggested that a party to the suit is not entitled to cite and examine the opposite party, dismissed the application. Challenging that order the above Revision was filed before this court invoking S.115 of the Code of Civil Procedure.

2. Before the learned Single Judge learned counsel for the plaintiffs submitted that the decisions of the Kerala High Court referred to and relied on by the trial court and relied on by the defendants were rendered without noticing the amended R.21 of 0. XVI of the Code of Civil Procedure as obtaining in Kerala and hence the matter required reconsideration. The learned Single Judge felt that in the light of the arguments addressed and in the light of O. XVI of the Code, the question deserved to be decided by a Division Bench. The learned Single Judge therefore adjourned the case for being heard by a Division Bench in exercise of his jurisdiction under S.3 of the High Court Act.

3. O.XVI of the Code of Civil Procedure deals with the summoning of and attendance of witnesses. R.1 provides that the parties shall present in court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in court. A party desirous of obtaining any summons for the attendance of any person shall file in court an application stating therein the purpose for which the witness is proposed to be summoned. No doubt it is open to the court for reasons to be recorded, to permit a party to call any witness other than one whose name appears in the list originally submitted. R.1-A of O. XVI provides that any party to the suit may, without applying for summons under R.1, bring any witness to give evidence or to produce documents. R.7 of O. XVI gives the power to the court to require any person present in court to give evidence or to produce any document then and there in his possession and power. R.7 does not indicate whether the expression 'any person' referred to in that Rule would include or exclude a party to the suit. But giving the expression its natural meaning, it is possible to say that R.7 of O.XVI of the Code gives power to the court to require any person present in court whether a party to the suit or a non-party to the suit to give evide

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2000 Supreme(Ker) 235

Cases Referred (3)