Shri Uma Shankar Bhartia vs. M/S Suvidha Estate Agency And Anr

Facts

The petitioner, Shri Uma Shankar Bhartia, is a defendant in a suit filed by M/s Suvidha Estate Agency (respondent No.1) for recovery of Rs.90,62,400/-. The suit pertains to a commission allegedly due to the plaintiff for facilitating the sale of an immovable property. The plaintiff claimed commission at 2% of the sale proceeds plus GST, as per an Agreement to Sell dated 07.05.2018. The Sale Deed was executed on 16.07.2018. The petitioner and respondent No.2 filed a joint written statement. The plaintiff filed an interim miscellaneous application seeking to examine the petitioner as its own witness. The trial court allowed this application. The petitioner challenged this order by way of a revision petition before the High Court.

Held

The High Court allowed the revision petition, setting aside the trial court's order. The Court held that the plaintiff's application to examine the petitioner as its own witness was not borne out from the record and could not be a ground to compel the petitioner to appear. The Court found the plaintiff's assertions vague and unspecific. It reiterated that the onus is on the plaintiff to prove its case by adducing its own evidence and cannot rely on the petitioner for this purpose. The Court noted that the petitioner is not a signatory to the Agreement to Sell or the Sale Deed, and Mr. R.K. Gupta was the signatory. The trial court's reasoning that Mr. R.K. Gupta had expired and therefore the petitioner was the only other person conversant with the facts was found fallacious because the application was filed during Mr. R.K. Gupta's lifetime. The Court concluded that the plaintiff's conduct suggested dilatory tactics and mal-intent to harass the petitioner or delay proceedings. The Court found no sufficient cause to permit the examination of the petitioner as a plaintiff witness, and the petitioner could not be compelled to appear. The Court also clarified that the petitioner, as a defendant, has a right to challenge the order in his individual capacity. The Court explicitly stated that its observations were not on the merits of the case.

Key Issues

1. Whether the plaintiff is entitled to examine the petitioner/defendant No.2 as its own witness during the plaintiff's evidence, considering the petitioner is a defendant in the suit and not a signatory to the Agreement to Sell or Sale Deed, and the plaintiff's case is based on the Agreement to Sell dated 07.05.2018? Petitioner's arguments: The petitioner argued that summoning a defendant as the plaintiff's witness is a deprecable practice and there is no absolute bar. They contended that the plaint does not mention the petitioner, the Sale Deed was not signed by the petitioner, and therefore, summoning the petitioner is mala fide and vexatious. The petitioner also argued that the application is a vexatious attempt to delay the suit, and the plaintiff cannot rely on the petitioner to prove its case as the burden of proof lies with the plaintiff. They cited several High Court judgments in support. Respondent No.1/Plaintiff's arguments: The plaintiff argued that there is no absolute bar in civil law to summoning a party to the lis as a witness, although it is considered deprecable. They submitted that examining the petitioner is necessary to prove the Agreement to Sell dated 07.05.2018, which is central to their case. They also contended that the defendants had undertaken to produce R.K. Gupta as a witness, and in view of this undertaking, the petitioner is estopped from opposing the request. They further argued that the petitioner represents the company and if the company is satisfied with the order, the petitioner cannot challenge it individually.