Plaintiff Can Summon Defendant As Witness In Suit For Specific Performance But Trial Court Must Exercise Discretion Judiciously: Karnataka High Court

The Karnataka High Court has upheld an order of the trial court which allowed an application filed by a plaintiff in a suit filed for specific performance of contract, seeking to summon the defendant in the case as a witness.

The Trial Court had concluded that any party to the suit can be summoned as a witness and allowed the application as per Rule 21 of Order XVI (summoning and attendance of witnesses) CPC. The defendants in the suit M Sharadamma and others had approached the high court challenging trial court's 12-09-2019 order. 

It was contended that the respondent (plaintiff before trial court) has to prove the case based on his pleadings and evidence and he cannot compel the petitioner (defendant no.1 before trial court) , to speak in the witness box in his favour. It was contended that there cannot be summoning of the opponent as a witness in the Court. On the contrary the respondent (plaintiff) argued that law does not prohibit summoning of the opposite party as a witness.

Referring to Supreme Court decision on the issue, Justice VijayKumar A Patil in his order said, “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. In the case on hand, the contention of the plaintiff-respondent No.1 is that the petitioner No.1-defendant No.1 and her husband have executed registered agreement of sale and the petitioner No.1-defendant No.1 is conveniently trying to evade entering the witness box, which has compelled the plaintiff-respondent No.1 to file an application to summon petitioner No.1-defendant No.1 as a witness. No doubt, the Trial Court on the basis of evidence on record, can draw adverse inference with regard to the conduct of the petitioner No.1-defendant No.1, if she fails to enter the witness box". 

The high court said that Order XVI Rule 1 CPC recognizes the right of a party to the suit to file a list of witnesses whom they propose to call either to give evidence or to produce document. Rule 21 states that where any party to the suit is required by any other thereto to give evidence, or to produce document, the provisions as to the witness shall apply to him so far as applicable. The Court, while considering the application for summoning of the witness is required to consider the purpose for which the witness is proposed to be summoned.

It said that Rule 1(2) of Order XVI confers discretion on the Trial Court to summon or not to summon the witness after considering the purpose for which the witness is proposed to be summoned.

"The Trial Court is required to exercise the discretion judiciously, more particularly when a party to the suit seeks to summon his/her opponent as a witness. I am of the considered view that the plaintiff can seek to summon the defendant as his witness but the same cannot be allowed as a matter of right and the Trial Court is required to consider the purpose for which, the witness is proposed to be summoned and thereafter, consider the application by assigning proper reasons," the court said. 

In the present case, the high court observed that the Trial Court had on "judicious application of mind" come to the conclusion that the opponent's witness is necessary and had allowed the respondent's (plaintiff's) application.

"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," it added. 

The high court referred to Supreme Court judgment in MOHAMMAD ABDUL WAHID Vs. NILOUFER AND ORS, (2024) wherein it was held that functions performed by either a witness or a party to the suit when in the witness box, is the same.

"The phrase "so far as it is applicable" in Order XVI Rule 21 does not suggest a difference in the function performed In other words, the Hon'ble Supreme Court held that there is no difference between a party to a suit as a witness and a witness simplicitor," the high court said. 

It however said that 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 judiciously". 

It emphasized that even in such cases, the court has an option 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) CPC.

"Under such circumstances, the Court can exercise its discretion in favour of the party seeking to summon the opponent as a witness," it said. 

The plea was dismissed. 

Appearance: Advocate Deepak S Shetty for Petitioners.

Advocate S D N Prasad for R1.

Citation No: 2025 LiveLaw (Kar) 239

Case Title: M Sharadamma & Others AND Kiran Kumar & Others

Case No: WRIT PETITION NO.50575/2019

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