Isabella Mariam

The High Court of Karnataka Single Bench of Justice Vijaykumar A. Patil rejected a writ petition challenging the order of a trial court that had permitted the summoning of a defendant as a witness by the plaintiff in a suit for specific performance. The court held that a party to the suit can be summoned as a witness under Order XVI Rule 1(2) of the Civil Procedure Code (CPC), but not as a matter of right. The discretion lies with the trial court, which must judiciously consider the purpose of such summoning. Accordingly, the writ petition was dismissed.

The case pertained to a suit for specific performance of a sale agreement filed by the plaintiff-respondent against the petitioners and others before the II Additional Senior Civil Judge and JMFC, Davanagere. The plaintiff alleged that the petitioners had entered into a registered agreement of sale on 11.07.2015 and subsequently denied its execution.

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The plaintiffs examined three witnesses (PWs 1 to 3) to support the claim. During cross-examination, inconsistencies arose in the testimonies, particularly regarding the execution of the agreement. The plaintiff then filed I.A. No.15 under Order XVI Rules 1 and 2 of the CPC seeking condonation of delay in filing an additional witness list and permission to summon the first petitioner (defendant No.1) as a witness. The trial court allowed the application, prompting the writ petition.

The petitioners contended that the trial court erred in allowing the application since the plaintiff cannot compel a defendant to depose in support of the plaintiff's case. Citing various judicial precedents, the petitioners argued that such summoning is not permissible and that adverse inference could be drawn if the defendant abstained from the witness box.

In response, the respondent-plaintiff argued that the law does not bar summoning the opposite party as a witness and that the trial court had appropriately exercised its discretion.

Justice Vijaykumar A. Patil recorded: "The contention of the learned counsel for the petitioner No.1-defendant No.1 that the plaintiff-respondent No.1 cannot call her as a witness in the additional list of witnesses furnished by the plaintiff-respondent No.1, has no merit in view of the enunciation of law laid down by the Hon'ble Supreme Court."

The court examined a catena of decisions, including Supreme Court and various High Court judgments. Referring to Mohammad Abdul Wahid vs. Niloufer and Ors., the court noted: "The Hon'ble Supreme Court held that there is no difference between a party to a suit as a witness and a witness simplicitor."

Referring to Order XVI Rule 21 CPC, the court stated: "Where any party to a suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as they are applicable."

The court acknowledged divergent judicial views, noting that while some decisions disapprove summoning an opponent as a witness due to potential unfairness, others recognize the court's discretion to permit it.

The High Court stated: "The Court shall keep in mind that if the parties sought to be summoned as a witness by the other side were the real opponents and therefore, compelling such parties to give evidence on behalf of the other party, is not desirable judicially."

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Nevertheless, the court observed: "Even in such cases, the option is available to the Court to either draw adverse inference against such a party or if the Court comes to the conclusion that the opponent's evidence is necessary to decide the issue involved in the case, then to summon them exercising its power under Order XVI Rule 1(2) of the CPC."

In this instance, the trial court had, after considering the purpose and circumstances, permitted the summoning of petitioner No.1-defendant No.1. Justice Patil concluded: "The decision arrived by the Trial Court is by exercising its discretion under Order XVI Rule 1. This Court, while exercising its power under Article 227 of the Constitution of India, cannot add its views to the views of the Trial Court."

The High Court issued the following direction: "The writ petition is devoid of merits and the same is accordingly rejected."

Case Title: M. Sharadamma & Ors. vs. Kiran Kumar & Ors.

Neutral Citation: 2025: KHC:24911

Case Number: W.P. No.50575/2019

Bench: Justice Vijaykumar A. Patil