Andhra Pradesh High Court - Amravati
K.Rafiq Basha vs Valukuru Ramakrishna on 9 August, 2024
1
*HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
+CIVIL REVISION PETITION Nos.1520 & 1525 of 2024
CRP No. 1520 of 2024
Between:
# K. Rafiq Basha, S/o. K. Hydar Basha
... Petitioner
And
$ Valukuru Rama Krishna, S/o Neelakantaiah
And 3 others.
.... Respondents
JUDGMENT PRONOUNCED ON 09.08.2024
THE HON'BLE DR.JUSTICE K. MANMADHA RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments?
- Yes -
2. Whether the copies of judgment may be marked to Law
Reporters/Journals
- Yes -
3. Whether Their Ladyship/Lordship wish to see the fair
copy of the Judgment?
- Yes -
___________________________________
DR.JUSTICE K. MANMADHA RAO
2
* THE HON'BLE DR.JUSTICE K. MANMADHA RAO
+CIVIL REVISION PETITION Nos.1520 & 1525 of 2024
% 09.08.2024
CRP No. 1520 of 2024
Between:
# K. Rafiq Basha, S/o. K. Hydar Basha
... Petitioner
And
$ Valukuru Rama Krishna, S/o Neelakantaiah
And 3 others.
.... Respondents
! Counsel for the Petitioner : Sri T.D. Phani Kumar
Counsel for Respondents: Smt. S.Ayesha Azma
<Gist :
>Head Note:
? Cases referred: 1. 1988(1) ALT 279
2. 1999(6) ALD 789
3. 2002 Tlmad-0-338(The Laws)
3
APHC010299582024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3310]
(Special Original Jurisdiction)
FRIDAY ,THE NINTH DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE DR JUSTICE K MANMADHA RAO
CIVIL REVISION PETITION NO: 1520/2024 & 1525/2024
CRP No.1520 of 2024 :
Between:
K.rafiq Basha ...PETITIONER
AND
Valukuru Ramakrishna and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. T D PANI KUMAR
Counsel for the Respondent(S):
1. AYESHA AZMA S
The Court made the following:
following
COMMON ORDER :
Both the Civil Revision Petitions are filed against the orders dated
27.06.2024 passed in I.A.No160 of 2024 and I.A.No.161 of 2024 in
O.S.No.174 of 2015 by the Court of Civil Judge (Senior Division), Kadiri.
2. As the issue involved in both the civil revision petitions is one and
the same, these matters are taken up together for disposal by this Common
Order.
3. The petitioner herein is the defendant No.2; 1st respondent herein is
the plaintiff and the respondents No.2 to 4 are the defendants No.1, 3 and 4 in
O.S.No.174 of 2015, which was filed before the Senior Civil Judge, Kadiri (for
short "the trial Court") for declaration of title and for grant of permanent
injunction with regard to the plaint schedule property. The evidence was
closed and the suit was posted for arguments. During pendency of the same,
the petitioner herein filed interlocutory applications before the trial Court vide
I.A No. 160 of 2024 in O.S No.174 of 2015 under Order 26 Rule 9 of CPC
seeking to appoint an Advocate Commissioner to note down the existing
physical features of the suit schedule property and also filed I.A No. 161 of
2024 in O.S No.174 of 2015 under Order 16 Rule 14 of CPC seeking to issue
summons to D3 i.e., Tahsildar, Kadiri to give evidence as a Court witness.
The same were dismissed by the trial Court vide separate orders dated
27.06.2024. Aggrieved by the same, the present civil revision petitions came
to be filed.
4. Heard Sri T.D. Phani Kumar, learned counsel appearing for the
petitioner and Smt S. Ayesha Azma, learned counsel appearing for the
respondents.
5. On hearing, learned counsel for the petitioner submits that the
petitioner herein filed I.A.No.160 of 2024 under Order 26 Rule 9 of CPC
seeking to appoint an Advocate Commissioner to note down the physical
features of the schedule property. He submits that the petitioner herein has
been in possession and enjoyment of the suit property and erected fencing
around the suit property and that the petitioner raised mango trees, chikoo
trees, coconut trees, jackfruit trees, Neem trees by fixing bore-well and
obtained motor connection to the bore-well and all the trees are of 15 years
old. He further submits that the 1st respondent/plaintiff is not in possession
and enjoyment of the said property and is no way concerned to the suit
property. The 1st respondent/plaintiff did not whisper about the existing of fruit
bearing trees in the suit property. If the Advocate Commissioner is appointed
to note down the physical features of the suit property by making local
inspection, the truth will come out. Learned counsel for the petitioner further
submits that the 3rd respondent/D3 has filed his written statement before the
trial Court along with documents in the above suit, but during trial, he reported
no evidence on his behalf which disclose collusion between him and the
plaintiffs. The evidence of D3 is a material to prove the case of the petitioner
herein. Therefore, the petitioner herein filed I.A No.161 of 2024 before the
trial Court under Order 26 Rule 14 of CPC to issue summons to D3 i.e,
Tahsildar, Kadiri. However, both the I.As were dismissed by the trial Court,
which is contrary to law and weight of evidence and probabilities of case.
6. Learned counsel for the petitioner submits that the trial Court ought
to have appreciated that the 1st respondent/plaintiff did not explain the nature
of suit schedule property, thus appointment of an Advocate Commissioner for
localization of suit schedule property would essential for adjudicating the issue
in controversy. He submits that the trial Court ought to have appreciated that
the evidence of 2nd defendant was closed on 21.3.2024 and the matter was
adjourned twice on 28.3.2024 and 15.4.2024 for evidence of D3 and D4. The
evidence of D3 and D4 was closed on 15.4.2024. The petitioner filed the
present application on 19.04.2024 and that the trial Court ought to have
appreciated that the extent of land assigned to the petitioner/D2 and put him in
his possession and the boundaries mentioned by the plaintiff in the suit
schedule property are tallying, thus, it is just and necessary to appoint an
Advocate Commissioner for localization to note down the physical features of
suit schedule property. Since the 3rd respondent failed to place the record
pertaining to suit schedule property, the petitioner filed another application
vide I.A No.161 of 2024 seeking to issue summons. But the trial Court erred
in holding that the suit schedule property is Sy.No.1713 and Sy.No.1713/C-2
and the petitioner/D2 claiming title and possession over 1713/2B, as such,
summoning the Tahsildar as a Court witness will not serve any useful
purpose. Therefore, learned counsel for the petitioner requests this Court to
pass appropriate orders by setting aside the impugned orders passed by the
trial Court.
7. On the other hand, learned counsel appearing for the respondents
submits that the present revision petitions are not maintainable under law.
She further submits that the parties have to prove their case basing on their
pleadings, documents and oral evidence, but cannot seek appointment of
advocate commissioner for collection of evidence. She submits that the
burden lies on 1st respondent/plaintiff to establish his pleadings, as he filed the
suit for declaration of right and title and permanent injunction. With regard to
the prayer of issue summons of D3, learned counsel submits that, as D3 and
D4 reported no evidence on their behalf, the petitioner cannot seek and
compel 3rd respondent/D3 to give evidence as Court witness and the petition
is against the provision of Order 16 Rule 14 of CPC. Therefore, as the
present revision petitions are not maintainable, prayed to dismiss the same.
8. On hearing the submissions, this Court observed that, the suit in O.S
No.174 of 2015 was filed by the 1st respondent/plaintiff for declaration to title
and for permanent injunction. When the matter came up for arguments, the
petitioner herein filed I.A No.160 of 2024 and I.A No.161 of 2024 seeking to
appoint an Advocate Commissioner and to issue summons to D3. A perusal
of statement of D2 at para-5 discloses that he is claiming right, title and
possession over S.No.1713-2B to an extent of Ac.1-00 cents. However, the
Suit is filed for S.No.1713 and S.No.1713-C2 (Ac.1-00 cents).
9. It is pertinent to mention here the amended Order 26 Rule 9 of CPC,
reads as under:
Order 26 Rule 9 of CPC : Commissions to make local investigation. In any suit in
which the Court deems a local investigation to be requisite or proper for the purpose of
elucidating any matter in dispute, or of ascertaining the market value of any property, or the
amount of any mense profits or damages or annual net profits, the Court may issue a
commission to such person as it thinks fit directing him to make such investigation and to
report thereon to the Court.
Provided that, where the State Government has made rules as to the persons to
whom such commission shall be issued, the Court shall be bound by such rules.
10. Insofar as Order 16 Rule 14 of CPC, upon which emphasis is laid,
reads as under:
"14. Court may of its own accord summon as witnesses strangers to suit- Subject to the
provisions of this Code as to attendance and appearance and to any law for the time being in
force, where the Court at any time thinks it necessary to examine any person, including a
party to the suit and not called as a witness by a party to the suit, the Court may, of its own
motion, cause such person to be summoned as a witness to give evidence, or to produce any
document in his possession, on a day to be appointed, and may examine him as a witness or
require him to produce such document."
The heading of the Rule makes it amply clear that the power to summon strangers to a
suit, as witness is to be exercised by the Court "on its own accord". This idea is further
strengthened by the phrases, "where the Court at any time thinks" and "the Court may, of its
own motion", occurring in the body of the provision. This is not an instance of the aid of
heading being taken to expand or restrict the meaning of the provision. In fact, both are at
harmony, with each other."
11. Exercise of power by the Court on its own accord as well as, at the
instance of parties would also be possible where the language of the provision
is not so clear on this aspect.
12. In P.S. Chetty v. K.E. Reddy1, wherein this Court held:
Order 16 Rule 14 Code of CPC provides that the court may of its own initiative or suo motu
cause any person to be examined as a witness though either of the parties did not choose to
take steps for summoning such person as a witness. This power obviously intended in the
interest of justice is aimed at clarifying certain situations and remove ambiguities and fill up
lacuna and thereby further justice. The parties may refrain from summoning a crucial witness
in the event of their apprehension of full fledged support and in such a situation the court may
summon such person to give evidence to arrive at the correct factual picture and this witness
is called a ''court witness.'' Order 16 Rule 14 visualises the initiative by the court only to
examine any person and it is for the court to consider of its own accord the necessity of
1988(1) ALT 279
invoking power under this rule without propulsion or application by the parties. The exercise of
this power is in the nature of "self-starter" without extraneous pressure or pull.
13. On a reading of the above, it is observed that, the Court is not
obliged to invoke the power under that provision at the instance of the parties.
However, a rider was added to the effect that an application filed by the
parties invoking such a provision can be treated as a device of passing on the
information, which may help the Court in forming an opinion, whether or not to
exercise its power under Order 16 Rule 14 of Code of Civil Procedure.
14. It is true that the court is not obligated to invoke the power at the
instance of the parties and the parties have no right to move an application
under this rule. But however either of the parties can bring to the notice of the
court the necessity for examining any person as court witness. On such
application the court may scan the totality of facts and circumstances apart
from the situations projected by the parties and arrive at an independent
conclusion as to the necessity of a court witness. The parties are not totally
barred from bringing to the notice of the court by application or otherwise and
the court is not bound to take action on the averments or allegations contained
in the application and it is the sole discretion of the court. The application by
the parties may be considered as passing on the information so that the court
may examine the issue in depth on the facts and circumstances set out in the
application and other aspects.
15. However, in subsequent judgments, this precedent was understood,
as though the parties to the suit can insist on examination of an individual as a
Court witness, under Order 16 of Rule 14 Code of Civil Procedure. The
judgment in Kosuru Kalinga Maharaju vs. Kosuru Kaikamma2 case is one
such. It was observed;
16. A reading of the above provision would leave no doubt in the mind
to say that either party to the suit proceedings can summon person including a
party to the suit who is not called as a witness by a party to the suit, as a
witness.
17. Legislature has felt the need for a direct provision enabling the
court to summon a party for giving evidence as a witness to help curbing the
malpractice of a party not appearing as a witness and forcing the other party
to call him as a witness, and adjudicate the issues properly. What is laid down
in the above provision is that if the Court is satisfied about such a necessity to
cause any person to be examined as a witness, Court can summon such
person as a witness. The emphasis is laid on the subjective satisfaction of the
Court. However, this power is to be exercised by the Courts guardedly and not
as a matter of routine.
18. As could be seen, Order 16 Rule 14 of the Code of CPC empowers
the Court to summon on its own any person to give evidence or to produce
any document in his possession if the Court is satisfied that the evidence of
such witness is necessary to arrive at a just conclusion. The said power
includes summoning even a party to the proceeding. Though the language of
1999 (6) ALD 789
Rule 14 shows that such discretion has to be exercised by the court at its own
motion, the law is well-settled that such a power can be exercised even on an
application made by a party to the proceedings, since the application if any,
can be taken as an information to the Court.
19. In Varadharajan v. Saravanan3, wherein the Madras High Court
has this to say about Order 16 Rule 14 of Code of Civil Procedure.
"Para-7: Even in this rule, the power of the Court to examine the witnesses on his own motion,
is discretionary. Ordinarily it is for the party to summon the witnesses necessary for his case
and when the party has done everything in that regard, it is the duty of the Court to enforce
their attendance. Only when it appears to the Court that the evidence of a particular witness is
necessary for the proper adjudication of the suit, then only the Court may secure suo motu the
attendance of such witness. This discretionary power under this Rule should not be used to
help a party to tide over a real difficulty in examining that witnesses. When neither side has
summoned the material witness to give evidence, the Curt is justified in refusing to call him as
a Court witness after closure of evidence.
Para-8: In fact, Rule 14 prior to amendment by the Amendment Act 1976, Court had power to
summon as witnesses any person other than a party to the suit who had not been called as a
witness by any party either to give evidence or to produce document. The Rule did not confer
any express power on the Court to summon a party to the suit as a witness. But after the
Amendment, 1976, the Court has been given express power to summon a party to the suit.
Even if a party voluntarily appears in the witness-box to give evidence in his own favour and
deliberately keeps himself away after examination-in-chief and before cross examination, the
Court cannot exercise its power under the amended Rule also."
20. From the above discussion, what emerges is that, the power under
Order 16 Rule 14 of Code of Civil Procedure, is to be exercised by a Court, on
its own accord, and not on the insistence by a party to the suit. Though a party
to the suit can place any information, which may impress upon or convince the
Court to exercise its powers under that provision, an independent application
for that very purpose does not lie. If parties are permitted to make
independent application for summoning of an individual as a Court witness
and are conferred with the right to insist the Court to accede their request, it
2002 Tlmad-0-338 (The Laws)
may lead to several complications. It can be used as a device to overcome
their inability or failure to summon a witness, and in certain cases, to fill up the
lacuna in the evidence, which is already on record. That was never the
intention of the Parliament. If a party wants a particular individual be
summoned or examined as witness, it must have recourse to Rules 1 and 1-A
of Order 16 Code of Civil Procedure.
21. Further, this Court observed that the trial Court dismissed the
applications on the ground that it cannot be compelled to examine a person as
a Court witness, and it is always for the Court itself to take such steps, on its
own accord.
22. As far as appointment of Advocate Commissioner is concerned,
admittedly the suit was filed by 1st respondent/plaintiff seeking for declaration
of right and title over the suit schedule property and injunction. The issue in
the suit would be whether the plaintiff is entitled for the relief of declaration of
title and is as on the date of filing of the suit was in possession of the suit land
or not . So the question of localization of suit property and noting down the
physical features of the property, by the advocate commissioner does not
arise. The burden of proof is always on the plaintiff to establish his lawful title
and possession over the suit schedule property. The localization and noting
down the physical features of the property will not have any bearing on the
suit. Even if the advocate commissioner is appointed, he cannot state how
the physical features as alleged by D2 came into existence, who planted the
trees erected fencing and at what point of time they were planted etc.
23. Therefore, viewed from any angle, there are no bonafides on the
part of the petitioner to file the petitions either on facts or under law to issue
summons and to appoint an Advocate Commissioner, and hence, this Court
do not find any illegality or irregularity in the impugned orders warranting
interference by this Court in exercise of its supervisory jurisdiction under
Article 227 of the Constitution of India.
24. Finding no merit in the instant revision petitions and devoid of
merits, the same are liable to be dismissed.
25. Accordingly, both the Civil Revision Petitions are dismissed. There
shall be no order as to costs. As a sequel, all the pending miscellaneous
applications shall stand closed.
_________________________
DR. K. MANMADHA RAO, J.
Date : 09 -08-2024
Gvl
HON'BLE DR. JUSTICE K. MANMADHA RAO
CIVIL REVISION PETITON Nos.1520 & 1525 of 2024
Date : 9 .8.2024
Gvl
