IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE NINTH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE V.ESWARAIAH CIVIL REVISION PETITION No.2797 of 2008 Between: Siruvuri Venkata Ramaraju and 3 others ..... PETITIONERS AND M.Seetha Ratna .....RESPONDENT The Court made the following: THE HONOURABLE SRI JUSTICE V.ESWARAIAH CIVIL REVISION PETITION No.2797 of 2008 ORDER: Petitioners are the defendants in the suit OS.633/2000 filed by the sole plaintiff who is the respondent herein on the file of the V Additional Senior Civil Judge (Fast Track Court), Visakhapatnam. The suit was filed for cancellation of sale deeds dated 04.06.1998 and 05.06.1998 said to have been executed in favour of defendants. The said suit was contested by the defendants. The plaintiff himself was examined as PW 1 and marked Exs.A1 to A4. The 1st defendant himself was examined as DW 1 and got examined another witness as DW 2 and marked Exs.B1 to B7. While so, the plaintiff filed I.A.594/2007 under Order-16 Rule-1(2) CPC to issue witness summons to defendants Nos.2 to 4 for the purpose of cross examination and to testify the case of the plaintiff, and the genuineness and authenticity of Exs.A1 and A2. The application was resisted contending that defendants Nos.2 to 4 cannot be summoned for cross examination to prove the plaintiff’s case, and the defendants 2 to 4 did not file any chief affidavits and that they have only adopted the written statement filed by the 1st defendant and therefore, they cannot be summoned even as Court witnesses. 2. The trial Court allowed I.A.594/2007 by the impugned order dated 08.04.2008. Aggrieved by the same, the defendants filed this revision petition under Article-227 of the Constitution of India contending that the defendants cannot be summoned as Court witnesses and the impugned order has been passed without assigning any reasons. 3. Heard both the counsel. 4. The plaintiff filed the said I.A. under Order-16 Rule-1(2) CPC for summoning defendants Nos.2 to 4 for the purpose of cross examining them in the interests of justice. It is stated that the said suit was filed seeking to set aside the registered sale deeds dated 04.06.1998 and 05.06.1998. It is stated that in the connected suit O.S.141/1999, 2nd defendant was examined as PW 1 and while giving evidence she expressed her ignorance as to whether the 1st defendant and the 2nd defendant herein have shown the suit transactions and the sale transactions obtained by the 1st defendant before the Income Tax Authorities, Visakhapatnam. It is further stated that to establish the fact that the aforesaid sale deeds and the mortgage deed are not supported by consideration, it is necessary to summon defendants Nos.2 to 4. He further stated that he filed an application in 2005 for issuing summons to the said persons, but the Court below passed orders on 09.12.2005 closing the said I.A. with an observation that in case the defendants fail to examine themselves at the time of letting the evidence on their behalf, the plaintiff would be at liberty to examine them. As defendants Nos.2 to 4 failed to examine themselves on their side, they are very much essential to be summoned to establish the true facts of the case. 5. A counter was filed stating that it is not stated as to what exactly are the assessment records and for which years they are needed. The particulars of the documents needed also are not clearly stated. Without furnishing any particulars with regard to the assessment the application is not maintainable. The defendants are not required to be summoned without there being any basis or foundation though the defendants are the Income Tax Assessees. However, it is stated that such steps could have been taken long back and the application is belated. Certified copies of the required documents could have been applied and obtained from the Income Tax Department and file the same. 6. The Court below allowed the said application following the judgments relied on either side in the case of Gara Padmanabham vs. Neti Narasimha Sastry[1] paragraphs-2 and 3 and in the case of Veesam Mohan Reddy vs. Rebba Pedda Agaiah[2] paragraphs-15 and 16. As the defendants did not choose to appear before the Court below to give evidence, the Court below considered that it is just and necessary to summon defendants Nos.2 to 4 as Court witnesses. 7. The question that arises for consideration in this revision petition is whether the petitioner/plaintiff is entitled to summon the parties to the suit who are defendants Nos.2 to 4 and lead any evidence. 8. Under Order-16 Rule-1 CPC after the settlement of the issues the parties shall present a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summons on such persons for their attendance in Court. Under Order 16 Rule- 1(2) CPC a party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witnesses is proposed to be summoned. Under Order 16 Rule-1(3) the Court may, for the reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise any witnesses, other than those whose names appear in the list referred to in Sub-Rule-(1), if such party shows sufficient cause for the omission to mention the name of such witnesses in the said list. Under Order 16 Rule-(4) subject to the provisions of Sub-Rule-(2), summons referred to in this rule may be obtained by the parties on an application to the Court. 9. Under Sub-Rule (2) of Rule-1 of Order 16 CPC the party who desirous to examine any person which includes the parties to the suit shall file an application by stating the purpose for which the witness is proposed to be examined. 10. In the instant case, the plaintiff clearly indicated the purpose for which defendants Nos.2 to 4 are required to be summoned. It is stated that the sale deeds and mortgage deed are not supported by consideration. It is stated that when the 2nd defendant was examined in connection with other suit O.S.241/1999, expressing her ignorance with regard to showing the sale transaction before the Income Tax Authorities, that is the purpose for which the plaintiff wants to summon defendants Nos.2 to 4 on the ground that the earlier application filed by him to summon defendants Nos.2 to 4 was closed with a liberty to summon them, if the defendants failed to examine themselves. Unfortunately, that is not the ground on which the impugned order has been passed allowing the application of the plaintiff. The Court below simply relying on certain decisions and without assigning any reasons and the purpose for which they are required to be called as court witnesses, allowed the application. Therefore, I am not inclined to uphold the impugned order. 11. In that view of the matter, the Civil Revision Petition is allowed. The impugned order is set aside and the matter is remitted back to the Court below directing to consider the same afresh and pass appropriate orders, indicating the purpose for which defendants Nos.2 to 4 are required to be summoned by placing reliance with regard to the earlier orders said to have been passed while closing the I.A. filed by the plaintiff in 2005, and after giving reasonable opportunity of being heard to both the parties, in accordance with law. ___________________ V.ESWARAIAH,J Dated: 09.12.2010 Dsr [1] AIR 2001 AP 43 [2] 2008(2) ALD 304