The Karnataka High Court dismissed a writ petition filed Articles 226 and 227 of the Constitution of India, praying to quash the order dated 23.11.23 passed by the Addl. City Civil Judge in a suit and allow the applications filed by the petitioners/plaintiff. The Court observed that in the affidavit accompanying the application, the purpose for which the witnesses are to be summoned is not forthcoming.
Brief Facts:
The suit of the petitioner is one for partition and separate possession. During the trial, the petitioner-plaintiff filed I.A.No.16 under Order 16 Rule 1(2) of CPC, praying to summon the witnesses stated therein and to issue a witness summons. The petitioner-plaintiff requested the Court to issue a witness summons to defendant No.2 and counsel who is appearing for defendant Nos.1 to 5. The trial Court under the impugned order rejected the said application.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that the trial Court committed an error in rejecting the said application and further submitted that summoning said witnesses before the Court would be necessary. He contended that the counsel’s name stated in the application had acted on behalf of defendant No.2. Hence, it would be necessary to call the said counsel as one of the witnesses.
The Court observed that the trial Court rightly rejected the application-I.A.No.16 filed by the petitioner-plaintiff under Order 16 Rule 1(2) of CPC. In the affidavit accompanying the application, the purpose for which the witnesses are to be summoned is not forthcoming. Moreover, when the plaintiff intends to summon any one of the defendants as his witness, the plaintiff shall have to make out exceptional ground under which he intends to summon one of the defendants as a witness. Moreover, learned counsel who has acted on behalf of the parties cannot be summoned for mere asking. The party shall have to make out exceptional circumstances for summoning the Advocate. The application filed by the petitioner-plaintiff is frivolous.
The decision of the Court:
The Karnataka High Court, dismissing the petition, held that the writ petition is dismissed with a cost of Rs.10,000/- payable to the Legal Services Authority.
Case Title: S. N. Ashwath Reddy v. Jayamma N & Ors.
Coram: Hon’ble Justice S. G. Pandit
Case no.: WRIT PETITION NO. 27285 OF 2023 (GM-CPC)
Advocate for the Petitioner: Prof. Dr. Dhirendra V. Kubair
Advocate for the Respondents: Mr. Rajat Subramanyam
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