Introduction:
In a significant ruling reinforcing the discretionary powers of trial courts under the Code of Civil Procedure (CPC), the Karnataka High Court recently upheld an order permitting a plaintiff to summon the defendant as a witness in a suit for specific performance of contract. The case, titled M. Sharadamma & Others v. Kiran Kumar & Others [W.P. No. 50575/2019], arose when the defendants challenged the trial court’s decision dated September 12, 2019, allowing the plaintiff’s application under Order XVI Rule 21 CPC to summon the first defendant for testimony. The writ petition, filed under Article 227 of the Constitution of India, sought to quash the trial court’s order on the ground that a plaintiff cannot compel an opponent to depose in his favor. Justice Vijaykumar A. Patil, after examining statutory provisions and precedents including the Supreme Court’s ruling in Mohammad Abdul Wahid v. Niloufer & Ors. (2024), dismissed the writ petition, holding that while summoning an opponent as a witness is not a matter of right, courts have discretion to permit it in appropriate circumstances where such testimony is deemed necessary for adjudication. This judgment reiterates the principle that procedural law serves the ends of justice, and the discretion vested in courts must be exercised judiciously.
Arguments of the Petitioners (Defendants):
The petitioners contended that the impugned order suffered from legal infirmity and procedural overreach. Their primary argument rested on the foundational principle that the burden of proof lies upon the plaintiff, who must substantiate his case based on his pleadings and evidence without compelling the opposite party to depose in his favor. According to the petitioners, the trial court’s decision effectively shifted this burden by allowing the plaintiff to summon the defendant, thereby undermining the adversarial nature of civil proceedings.
Counsel for the petitioners, Advocate Deepak S. Shetty, argued that Order XVI of CPC, which governs the summoning and attendance of witnesses, cannot be construed to empower a party to compel its opponent to enter the witness box against his will. Such an interpretation, the counsel asserted, would not only be contrary to the legislative intent but would also violate the principle of fairness, as compelling an adversary to testify could lead to fishing inquiries and unnecessary harassment.
Further, it was submitted that the plaintiff’s application was not supported by sufficient grounds justifying the necessity of summoning the defendant as a witness. The petitioners contended that the trial court had failed to exercise its discretion judiciously and had allowed the application as a matter of course without considering whether the purpose for which the defendant’s testimony was sought was legitimate or relevant to the core issues in dispute. The petitioners also emphasized that the trial court had alternative remedies available, such as drawing an adverse inference under Section 114(g) of the Indian Evidence Act if a party avoids entering the witness box, which would have served the ends of justice without compelling personal testimony.
Arguments of the Respondents (Plaintiffs):
On the other hand, the respondents, represented by Advocate S.D.N. Prasad, argued that the CPC does not prohibit the summoning of an opposite party as a witness. Invoking Order XVI Rule 21, counsel submitted that when any party to the suit is required by another to give evidence or produce a document, the same provisions as applicable to witnesses generally shall apply. The respondents asserted that the purpose of this rule is to enable the court to elicit the truth by permitting the examination of all persons who may have relevant knowledge of the facts in issue, irrespective of their status as plaintiff or defendant.
The plaintiff’s justification for seeking the defendant’s testimony was grounded in the allegation that the first defendant and her husband had executed a registered agreement of sale in favor of the plaintiff, which formed the basis of the suit for specific performance. The plaintiff contended that the defendant was now evading the witness box to avoid answering critical questions regarding the execution and terms of the agreement, thereby obstructing the discovery of truth. The plaintiff further argued that summoning the defendant was essential to resolve the dispute conclusively and to prevent miscarriage of justice.
Reliance was placed on the Supreme Court’s decision in Mohammad Abdul Wahid v. Niloufer & Ors. (2024), wherein the Court held that there is no distinction in the evidentiary role played by a party to the suit and an ordinary witness, and that the expression “so far as applicable” in Rule 21 does not dilute the obligation of a party summoned as a witness. The respondents, therefore, urged that the trial court had exercised its discretion within the parameters of law and that its order did not warrant interference under Article 227, which is confined to correcting jurisdictional errors or perversities.
Court’s Analysis and Judgment:
Justice Vijaykumar A. Patil commenced his analysis by examining the scheme of Order XVI CPC. Rule 1(1) entitles parties to present a list of witnesses they propose to examine, while Rule 1(2) confers discretion upon the court to summon witnesses whose attendance appears necessary for determining the matters in controversy. Rule 21 explicitly extends these provisions to parties to the suit when they are required by the opposite side to give evidence or produce documents. The Court underscored that the combined reading of these provisions establishes two propositions: (i) a party may seek to summon an opponent as a witness; and (ii) such request is not a matter of right but subject to judicial scrutiny of its necessity and relevance.
The Court observed that the phrase “so far as it is applicable” in Rule 21 does not indicate any functional distinction between a party-witness and an independent witness. Rather, as clarified by the Supreme Court in Mohammad Abdul Wahid (supra), the evidentiary function performed by both is identical, and procedural safeguards applicable to witnesses extend equally to parties summoned under this rule. Thus, the contention that a plaintiff is barred from summoning a defendant was found to be legally untenable.
Addressing the petitioners’ apprehension of misuse, the Court cautioned that the power to summon an opponent must not be exercised mechanically or for collateral purposes. Trial courts must assess whether the proposed testimony bears on material issues and whether alternative means, such as adverse inference, would suffice. However, in the present case, the trial court had, upon “judicious application of mind,” concluded that the defendant’s evidence was necessary given her pivotal role in the transaction underlying the suit. Consequently, the High Court held that this discretionary determination, having been made on relevant considerations, could not be substituted by the writ court’s opinion under Article 227, which is not an appellate jurisdiction but a supervisory one limited to correcting jurisdictional or procedural errors.
The Court further noted that the trial court’s order aligns with the overarching objective of civil procedure: to facilitate a fair and expeditious adjudication by enabling courts to obtain the best evidence available. Dismissing the writ petition, the High Court reiterated that procedural discretion, when exercised judiciously, merits deference, and that compelling attendance of an opponent, though exceptional, is permissible where essential for eliciting truth.