- (1.) THE present petition has been filed by the petitioners, who are original defendant Nos. 5 to 8, 10 and 11, challenging the order dated 7.3.2006 passed by the Addl.District and Sessions Judge, Sambhar Lake (hereinafter referred to as the "trial court"), whereby the court has rejected the application of the petitioners filed under Order XVI Rule 21 read with Section 151 of CPC.
(2.) THE present respondents No. 1 to 3 (original plaintiffs) have filed the suit seeking specific performance of the agreement against the petitioners and the respondent Nos 4 to 7 (original defendants No. 1 to 4) in respect of the land bearing Khasra No 208/5 situated at village Jaichand Ka Bas, Tehsil-Fagi District-Jaipur. In the said suit, all the defendants have filed joint written statement denying the allegations made in the plaint, and while admitting that the defendant Nos 1 to 4 had executed an agreement dated 4.11.1982 to sell the land in question to the plaintiffs, they have contended that the said agreement was subsequently cancelled and thereafter the defendants No. 1 to 4 had sold out the said land through different sale deeds dated 4.1.85, to the defendants No. 5 to 8. The trial court after framing issues had proceeded with the trial. The plaintiffs completed their part of evidence and thereafter the suit was fixed for recording the evidence of the defendants. The suit was adjourned from time to time for the evidence of the defendants, however the petitioner no.4 (original defendant No.8) submitted an application under Order XVI Rule 21 read with Section 151 of CPC requesting the court to summon the respondent No.5 (original defendant No.2) Rambihari and one Shri Suresh son of Shri Umashankar as witnesses. The said application has been rejected by the trial court vide the impugned order dated 7.3.2006, against which the present petition has been filed. The learned counsel Mr. VK Jain for the petitioners has vehemently submitted that the trial court should have granted the application of the petitioners considering the provisions contained in Order XVI Rule 21, which were applicable to the witnesses as well as the party to the suit. According to him, the defendant No.2 Rambihari after filing the joint written statement with the other defendants, was not co-operative with the defendants and therefore the petitioners had submitted the said application to summon him as witness through the court. The learned counsel has also relied upon the decision of Madras High Court reported in the case of V.K. Periasamy alias Perianna Gounder vs D. Rajan (AIR 2001 Madras 410), to buttress his submission that there was no total bar on the right of a party to summon another party to give evidence as witness. However, learned counsel Mr. Alok Chaturvedi appearing on behalf of respondents No.1 to 3 (original plaintiffs) supporting the impugned order passed by the trial court submitted that the defendants had not examined any witness though sufficient opportunity was given to them, in order to delay the proceedings and thereafter submitted the application under Order XVI Rule 21 of CPC which was not applicable to the facts of the case. He also submitted that one defendant cannot compel the other defendant to step into the witness box, more particularly when the defendants had not given any list of witnesses as contemplated in Rule 1 of Order XVI of CPC. Having regard to the submissions made by learned counsel for the parties and to the impugned order passed by the trial court, it appears that the one of the petitioners had submitted the application under Order XVI Rule 21 read with section 151 of CPC to summon the defendant No.2 Rambihari and another person named Suresh son of Umashankar as the witnesses. The trial court while rejecting the said application, has observed in the impugned order that after the completion of evidence of the plaintiffs on 20.12.2005, defendants were given opportunity to examine witnesses after imposing the cost of Rs.100/- on 17.1.2006, and thereafter also another opportunity was granted again at the cost of Rs.100/- on 6.2.2006, however, instead of examining the witnesses, the concerned defendants had submitted the application only to delay the proceedings. It has also been observed that the defendants had not supplied any list of witnesses and that it was not desirable to summon the party to the suit, as the witness as prayed for by the defendants. This court finds the said order just and proper. As rightly submitted by learned counsel Mr. Chaturvedi for the respondents No.1 to 3, the defendants were required to furnish a list of witnesses whom they proposed to call either to give evidence or to produce documents, and then obtain summons to such persons for their attendance in the court as per the Order XVI Rule-1(1). Apart from the fact that the petitioners had not furnished any such list, as rightly observed by the trial court, it was not desirable to summon the party defendant as the witness in the suit. The court cannot compel any party to the suit to be the witness for the other party unless special circumstances exist. It is true that there is no bar against summoning any party as witness but it is the discretion of the court, which should be exercised considering the facts of each case. In the instant case, the trial court having exercised its discretion not to summon the defendant No.2 as the witnesses, this court is not inclined to interfere with the said discretionary order passed by the trial court. The petition being devoid of merits deserves to be dismissed and is accordingly dismissed. ;