D. Babu vs K.A. Dinachandran and Others

R.S. Ramanathan, J.—Plaintiff is the revision petitioner. The plaintiff filed the suit for declaration that he was not competent to enter into any

contract between 1998 and 2008 and consequently, the sale deed executed by him in favour of defendants 1 and 2 cannot be acted upon and for

injunction. In that suit, defendants 1 and 2 remained ex parte and the third defendant viz., the third respondent herein filed a statement and when

the case is ripe for trial, the revision petitioner/plaintiff filed application under Order 16 Rule 14 of the CPC to issue summons through Court to

defendants 1 and 2 for their appearance for examination and to produce the sale deed dated 21.10.2004 registered as document No. 5253 of

2004 on the file of the Sub Registrar, Konnur. That application was dismissed and aggrieved by the same, this revision is filed.

Learned counsel for the revision petitioner submitted that the petitioner is entitled to summon defendants 1 and 2 who remained absent to give

evidence and only by examining them, the revision petitioner can prove his case that the document executed in favour of defendants 1 and 2 was

not valid and defendants 1 and 2 will not get any title to the suit property. He also relied upon the judgment in V.K. Periasamy @ Perianna

Gounder Vs. D. Rajan, in support of his contention. He also relied upon the judgment in Sri Awadh Kishore Singh and Another Vs. Sri Brij Bihari

Singh and Others

According to me, the Court below has rightly dismissed the application. It is seen from the averments in the plaint that the revision petitioner was

an alcoholic between 1998 and 2008 and taking advantage of his position, defendants 1 and 2 induced him to convey the suit property in their

names and no consideration was passed and the sale deed dated 21.10.2004 is not a valid sale deed. It is further stated that defendants 1 and 2

also availed loan from the third defendant bank based on the sale deed executed by the plaintiff. Therefore, as rightly contended by the third

defendant before the Court below, the issue to be decided in the suit is whether the plaintiff was competent to enter into any contract during the

period between 1998 and 2008 and whether consideration was passed or not. Therefore, the duty is cast upon the plaintiff to prove that he was

not in a position to enter into any contract as he was an alcoholic at that time and he would not know what he was doing and that was taken

advantage of by defendants 1 and 2 and got the document.

Further, in the written statement, the third defendant had stated that the property was given as a security for the loan availed by defendants 1

and 2 and the property was brought to sale and the same was challenged by the revision petitioner/plaintiff by filing application u/s 17 of the

SARFAESI Act in S.A. No. 95 of 2008 and that petition was dismissed on merits on 21.12.2009. Further, one Renuka Devi a partner of Prime

Tech Enterprises filed S.A. No. 74 of 2010 and that application was also not pursued further and was closed on 16.8.2011. Thereafter, the

revision petitioner/plaintiff filed S.A. No. 95 of 2010 before the Debts Recovery Tribunal II and that was dismissed and defendants 1 and 2 also

filed application in S.A. No. 9 of 2011 before the Debts Recovery Tribunal III, Chennai and the same is pending.

Therefore, having regard to the nature of allegations made in the plaint, the Court below has rightly dismissed the application. Further, in the

judgment in V.K. Periasamy alias Perianna Gounder v. D. Rajan (supra), the learned Judge referred to the judgments of this Court in Kaliaperumal

Vs. Pankajavalli and Others, Union Bank of India Vs. Muthiah, and also referred to the judgments in Mallangowda and Others Vs.

Gavisiddangowda and Another, and Pirgonda Hongonda Vs. Vishwanath Ganesh and Others, . After referring to the above judgments, the learned

Judge allowed the application filed by the petitioner holding that the petitioner relied on a document in which the first defendant in the suit is a

signatory and the petitioner wants to elicit evidence with regard to the exhibits to which the first defendant is a party and the first defendant in that

suit is not strictly an opposite party and he was impleaded as a party only to avoid the dismissal of the suit on the ground of non-joinder of parties

and therefore, the application filed by the petitioner therein for examining the first defendant on his side can be allowed.

According to me, the reason for allowing the petition in the above judgment is entirely different and therefore, that judgment cannot be applied to

the facts of this case. Further, in this case, it is specifically alleged by the revision petitioner that during the period between 1998 and 2008, he was

under the influence of alcohol and was not knowing what he was doing and taking advantage of his position, defendants 1 and 2 got the sale deed

in their names.

Therefore, having regard to the allegations made in the plaint, it cannot be stated that defendants 1 and 2 are formal parties and though they

remained ex parte, they are necessary parties to the suit and they also supported the case of the plaintiff before the Debts Recovery Tribunal as

stated above.

Further, in the judgment in Kaliaperumal v. Pankajavalli (supra), after referring to the judgments in AIR 1938 59 (Privy Council) this Court has

held as follows:

MULLA on his COMMENTARIES TO CODE OF CIVIL PROCEDURE, 15th Edition, has stated thus,

Duty of suitors to give evidence on their own behalf In Lal Kunwar v. Chiranji Lal (m), their Lordships of the Privy Council severely condemned

the practice followed in some parts of India of Advocate omitting to call their own client as a witness in the hope of forcing their opponents to call

him as their witness in order that they themselves may have the opportunity of cross-examining their own client when called by the other side.

Referring to this practice, their Lordships said: ''it is a vicious practice, unworthy of a high-toned or reputable system of advocacy. It must

embarrass and perplex judicial investigation, and, it is to be feared, too often enables fraud,'' falsehood, or chicane to baffle justice.

Likewise, the practice of calling the opposite side as one''s own witness has been disapproved. If a party, who is in a position to give evidence,

does not go into the box, the Court is free to draw an inference against him.

As early as in Shatrugan Das v. Sham Das (supra), it is held thus:

The practice of calling the defendant as a witness to give evidence on behalf of the plaintiff is condemnable. In such a case the plaintiff must be

treated as a person who puts the defendant forward as a witness of truth.

In Pirgonda v. Vishwanath (supra), Justice GAJENDRAGADKAR (as he then was) held thus,

Mr. Datar has also relied upon circular No. 161 of the circulars issued by this Court in the civil Manual. This circular has invited the attention of the

subordinate Judges to the observations of the Privy Council in Kishori Lal v. Chuwni Lal 31 All 116 at 122 (PC)(A). Their Lordships of the Privy

Council have referred to the practice which sometimes seemed to obtain in some of the Courts in India of calling the party''s opponent as a witness

and they have observed that this practice is highly objectionable. ''Such practice'', said their Lordships ''ought never to be permitted in the result to

embarrass judicial investigation as it is sometimes allowed to be done.

Normally a party to the suit is expected to step into the witness box in support of his own case and if a party does not appear in the witness box it

would be open to the trial Court to draw an inference against him. If a party fails to appear in the witness box, it should normally not be open to his

opponent to compel his presence by the issue of a witness summons.

In Mallangowda v. Gavisiddangowda (supra), the Division Bench of Mysore High Court held thus,

the practice of calling the opposite party as witness should not be countenanced as it is not in the interest of Justice.

Kerala High Court also had an occasion to consider the same position, which is in Muhammad Kunju v. Shahabudeen, 1969 K.L.T. 170,

Justice RAGHAVAN (as he then was) held thus,

The practice of a party causing his opponent to be summoned as a witness has to be disapproved. As a matter of right a party cannot have the

opposite party examined as a witness.

In Ganda Mal Vs. Bhulloo Ram, of the judgment, their Lordships held thus,

It is a bad practice that when parties are in a position to give personal evidence they should refrain from entering the witness box. If such, evidence

is withheld without sufficient cause, the Court is not only entitled to but is bound to draw an adverse inference against the party who has thus

withheld evidence. It is a still more objectionable practice to cite opposite side as one''s own witness. This places the examination and cross-

examination of such a witness in wrong hands, necessitates the criticism of the evidence by the side which has called it and this embarrasses fair

trial and causes obstruction of justice.

The same principle was reiterated in the judgment in Kaliaperumal v. Pankajavalli (supra). Therefore, considering the judgments in Union Bank of

India v. Muthiah (supra) and Kaliaperumal v. Pankajavalli (supra) and other judgments referred therein and considering the facts of the case in the

judgment in V.K. Periasamy alias Perianna Gounder v. D. Rajan (supra), I would prefer the judgment rendered by this Court and in Kaliaperumal

v. Pankajavalli (supra) and Union Bank of India v. Muthiah (supra). Therefore, as per the above judgment, the plaintiff cannot apply for issuance of

subpoena for examination of defendants who are the contesting parties having regard to the allegations made in the plaint. Hence, I do not find any

merit in the revision.

In the result, the revision is dismissed. No costs. The connected miscellaneous petition is also dismissed.