Moyya Daniel Pratap vs Ravada Victor Lauranson

U.Durga Prasad Rao, J

The challenge in the CRP is to the order dated 02.08.2023 in E.A.No.76/2023 in E.P No.52/2013 in O.S No. 404/1995 passed by learned I Additional Senior Civil Judge, Visakhaptnam dismissing the petition filed by the petitioner/ 9th JDR under order 16 rule 14 r/w Section 151 CPC seeking to summon DHRs 2 and 3 as Court witnesses to examine them in order to elicit the fact that in E.P 145/2006 in O.S No.620/1994, the DHR therein obtained a wrong delivery.

Heard learned counsel for petitioner Sri A. Sai Naveen and learned counsel for respondents Sri S.V.S.S. Sivaram.

Learned counsel for petitioner would submit that the decree under execution is in O.S No.404/1995 and said suit was filed by one Raavada Victor Lauranson against the petitioner herein and 15 others for specific performance of suit agreement to sell dated 07.05.1992 executed by one Saripilli Mariyamma. The said Mariyamma died on 02.01.1995 and hence the suit for specific performance was filed against the petitioner and 14 others who are the LRs of Mariyamma. Said suit was decreed on 06.03.2003 and in the appeal A.S No.71/2003 filed by the defendants therein, the decree of the lower court was confirmed by the Principal District Judge, Visakhapatnam. Thereafter, the second appeal i.e., S.A 1563/2005 was filed and same is pending before the High Court of A.P. Pending the same and as no stay is there, E.P No.52/2013 is filed by DHRs for execution of specific performance decree.

Learned counsel would further argue that while so, one Smt. Raavada Suseela Kamala Ratna Bai filed O.S 620/1994 on the file of I Additional Senior Civil Judge, Visakhapatnam against the very same Saripalli Mariyamma for declaration and recovery of possession of Northern side portion of the petition schedule property and pending the said suit, the plaintiff and Mariyamma were died and their LRs were brought on record. The said suit was decreed in favour of plaintiffs and therefore the defendants filed appeal in A.S No.2014/2001 and the said appeal was dismissed by learned VII Additional District Judge, Visakhapatnam. Thereafter E.P No.145/2006 was filed by the decree holders wherein they obtained a wrong delivery. The properties in both the suits are in juxtaposition and the DHRs while obtaining delivery of the suit property in O.S 620/1994, wrongly obtained delivery of half portion of the property in O.S No.404/1995 which was leased out by Mariyamma in favour of the petitioner herein under a registered lease agreement for a period of 99 years. Learned counsel would thus submit that in order to elicit the facts relating to the said wrong delivery obtained in E.P No.145/2006 in O.S No.620/1994, the DHRs 2 and 3 are required to be summoned as court witnesses under order 16 Rule 14 CPC and therefore the petitioner filed E.A No.76/2023 for the said purpose. However, the executing Court has erroneously dismissed the said petition on a pre conceived notion that such examination would be a futile exercise to prove the alleged wrong delivery and such summoning is not within the scope of order 16 rule 14 CPC. Learned counsel would strenuously argue that when the DHRs are summoned to witness dock, it is not known what facts they may depose with regard to the wrong delivery of property in E.P No.145/2006 in O.S No.620/1994. There is a possibility of their admitting such wrong delivery or denying the same. However, it cannot be predicted now without any basis and on such prediction, petition cannot be dismissed. On the other hand, the Court owes a duty to afford a fair opportunity to a party to examine a witness to establish its case. He placed reliance on Veesam Mohan Reddy v. Rebba Pedda Agaiah 2008 (1) A.P.L.J. 92 (HC) to contend that the Court has, under order 16 rule 14 CPC, power to summon a party to the proceedings for cross-examination by the other party.

Per contra, learned counsel for respondent Sri S.V.S.S. Sivaram would contend that as per the pleadings in E.A No.76/2023, the purpose in summoning DHRs 2 and 3 and to cross-examine them is to elicit the factum of wrong delivery in EP No.145/2006 in O.S No.620/1994. Such being the purpose, the petitioner should be able to convince the Court that he is entitled to question the validity and correctness of execution of a decree in another suit. He would submit that the scope and ambit of the present E.P.No.52/2013 in O.S.No.404/1995 is to see whether the JDRs are coming forward to execute registered sale deed in terms of the decree and if not whether the Court at the request of the DHRs can execute said sale deed and get registered the same. Thus the scope of the execution of the decree in O.S No.404/1995 is limited to that extent. The executing Court therefore cannot go beyond the scope of the decree in O.S.No.404/1995 and accede to the request of the JDR and summon the DHRs to permit the JDR to cross-examine with reference to the aspects touching the execution of a decree in another suit. That exercise, he would formidably argue, tantamounts to traversing beyond the scope of the decree in O.S No.404/1995. He would also submit that exercising the power under order 16 rule 14 CPC is only discretionary but not a matter of course. He thus prayed to dismiss the CRP.

The point for consideration is whether there are merits in the CRP to allow ?

Point: I gave my anxious consideration to above respective arguments. For proper appreciation of the matter, it is apposite to extract the provision order 16 rule 14 CPC.

“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.”

As can be seen, the Court at any time, if thinks necessary to examine any person including a party to the suit who is not called as witness, may on its own motion summon such person as a witness to give evidence or to produce any document in his possession. This provision primarily speaks about the suo motu discretionary power of the Court to summon a person for examination or production of a document, when it considers such a person was not called as a witness by either party and such examination is necessary. When such person is summoned and examined as court witness, the Court shall permit both parties to cross-examine such witness. In Veesam Mohan Reddy’s case (supra 1) a learned single Judge of High Court of A.P. observed that order 16 rule 14 CPC empowers the Court to summon even a party to the proceedings and further, such power can be exercised by the Court at its own motion as well as on the application made by a party to the proceedings. There is no demur with regard to the aforesaid power of the Court to summon a party as a witness on the application of other party. However, in my considered view, before exercising such power, the party seeking summoning of other party must place before the Court a plausible ground. In the instant case admittedly the petitioner /JDR 9 seeks to cross-examine the DHRs 2 and 3 on the aspect of an alleged wrong delivery of property in another proceedings i.e., E.P No.145/2006 in O.S No.620/1994. His contention is that what the DHRs may depose on being summoned is immaterial but what only matters is that the petitioner shall be afforded an opportunity to establish his case. This argument in my view is far fetching. What the DHRs may depose may not be material at this stage but at the same time whether the petitioner/JDR No.9 can cross-examine with regard to the wrong delivery of property in another matter is very much pertinent to decide his application. If the wrong delivery has allegedly taken place, that should have been questioned in relevant proceedings before an appropriate forum but not in the present execution proceedings. In the summoning petition, the petitioner except harping that a wrong delivery was obtained in E.P No.145/2006 in O.S.No.620/1994, failed to narrate how such alleged wrong delivery has any relevancy with the execution in the present matter. Thus in any view the impugned order cannot be assailed to be illegal or improper. I find no merits in the CRP.

Accordingly, the Civil Revision Petition is dismissed. No costs.

As a sequel, interlocutory applications pending, if any, shall stand closed.