Telangana High Court
Pulusu Kalavathi vs Raparthi Pandu Pandaiah on 27 February, 2025
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
C.R.P.NO. 3065 OF 2024
ORDER:
This Civil Revision Petition has been filed under Article
227 of the Constitution of India against the order dated
01.08.2024 in I.A.No.163/2024 in O.S.No.37/2009 on the file
of the Senior Civil Judge, Suryapet and to pass such other
order or orders in the interest of justice.
2. Brief facts leading to the filing of the present Civil
Revision Petition are that the suit was filed for specific
performance of an agreement of sale and the Plaintiff No.1
has filed the suit on the ground that the defendants have
entered into an agreement of sale with him and also with
defendant No.5 and had received the sale consideration, but
refused to honour the same by executing the sale deed. It was
stated in the suit that the defendant No.5 was not interested
to join him as plaintiff and therefore, he has made him as a
defendant in the suit. The defendant No.5 remained ex-parte.
The other contesting defendants have filed their written
statement. Thereafter the petitioner has filed I.A.No.163 of
2024 seeking to summon the defendant No.5 to give evidence
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in the suit to elicit the truth about the execution of agreement
of sale. The defendants No.1 to 4 and 6 to 10 have objected to
the same and submitted that the Court cannot compel the
defendant No.5 to appear before the Court. It is submitted
that the defendant No.5 has chosen to remain ex-parte and
therefore, the Court has to draw adverse inference, but
should not summon the defendant No.5 to give evidence.
3. In support of his contentions, the learned counsel
for the petitioners place reliance upon the judgments of this
Court in Loyola Public School Society, Secunderabad Vs.
P.Anil Kumar and Others 1 and also in the case of B.Venkat
Ram Reddy Vs. K.Srinivas and Others 2.
4. Learned counsel for the respondents, however,
submitted that the defendant No.5 has entered into
agreement of sale along with the plaintiffs and therefore, he is
a proper and necessary party to give evidence and
accordingly, he had rightly been called/summoned by the
Court to give evidence. In support of his contentions, he
placed reliance upon the decisions of this Court in the case of
National Insurance Co.Ltd., and Others Vs. M/s.Susru Sea
1 2008 (1) ALD 8
2 2005 (2) ALD 735
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Foods 3 and also in the case of Kosuru Kalinga Maharaju Vs.
Kosuru Kaikamma 4 and in the case of Pushpaben
Champaklal Shah and Another Vs. Rikhadev Tirthram
Sharma and Others 5.
5. Having regard to the rival contentions and the
material on record, this Court finds that the petition has been
filed under Order XVI Rule 12 r/w 151 C.P.C. However, the
said provision relates to "Procedure if witness fails to appear".
In this case, the above stage has not yet arrived. The
appropriate provision is Rule 7A which reads as under:
The Court may, on the application of any party for the
issue of a summons for the attendance of any person, permit
such party to effect service of such summons on such person
and shall, in such a case, deliver the summons to such party
for service.
6. From the literal reading of the above, it is clear
that the plaintiffs also can seek issuance of summons to
defendant No.5, who remained ex-parte in spite of service of
notice. The trial Court has accordingly allowed the same.
3 2005 (1) APLJ. 71(HC)
4 1999 SCC OnLine AP 635
5 2005 SSC OnLine Guj 190
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7. The judgments relied upon by the learned counsel
for the petitioners are distinguishable on facts and further
even in those judgments it was held that even if the witness
summoned is unwilling to give evidence on behalf of the
plaintiffs, he can be examined as a Court witness.
8. In view of the same, this Court does not find any
merit in this Civil Revision Petition and is liable to be
dismissed.
9. Accordingly, this Civil Revision Petition is
dismissed. There shall be no order as to costs.
10. Miscellaneous petitions, if any, pending in this
Civil Revision Petition, shall stand closed.
____________________________
JUSTICE T.MADHAVI DEVI
Date: 27.02.2025
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THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
C.R.P.NO. 3065 OF 2024
Dated: 27.02.2025
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