' MIAN FASIH-UL-MULK, J.--- The defendants in a suit for specific performance of an agreement to sell of immovable property, pending before the trial Court, are petitioners in this revision petition, who are aggrieved of an interlocutory order passed by the trial Court dated 30-11-2011 whereby application of plaintiff/respondent for summoning of two witnesses and their examination as Court witnesses was accepted.
2. The challenge of petitioners to the impugned order of trial Court is that while allowing the application in question, the trial Court resorted to the provisions of Order XVI, Rule 21 C.P.C., which in fact should be the provisions of Order XVI, Rule 14, C.P.C. Whereby though the Court of its own can summon a stranger witness but not on an application of any party.
3. Arguments heard and record perused.
4. Perusal of record would reveal that plaintiff/respondent has filed a suit for specific performance of agreement to sell dated 10-4-2006, executed by defendant No,1 (placed ex parte by the trial Court ) and oral agreement to sell of the same date made by defendants Nos.2 to 11 (petitioners herein) concerning the suit property along with prayer of permanent injunction. During proceedings, defendant No,1, who is elder brother of petitioners and had executed the deed, did not appear and was placed ex parte. Similarly, one Syed Basit Ali Shah (uncle of petitioners) who had received the sale consideration, the names of both these witnesses were mentioned in the list of witnesses submitted by respondent/plaintiff. However, they being closely related to petitioners were reluctant to appear in the witness-box obviously for the purpose of strengthening the case of petitioners, therefore, the trial Court while invoking the provisions of Order XVI, Rule 21, C.P.C. Allowed the application of plaintiff/respondent for examination of these two witnesses so as to reach at a just and proper conclusion of the lis.
5. Order XVI of the Code of Civil Procedure deals with the summoning of and attendance of witnesses. Rule 14 of Order XVI provides that where the Court at any time thinks it necessary to examine any person other than 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. Thus Rule 14 confers power on the Court when it thinks it necessary to examine any person other than a party to the suit as a witness. Rule 21 provides that where a party to the suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as they are applicable.
6. Rule 21 of Order XVI is to the following effect:--- "21. Rules as to witnesses to apply to parties summoned. Where any party to a suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as they are applicable."
' Rule 21 clearly indicates the intention that it is open to a party to a proceeding to cite his opposite party as a witness and to examine him. This rule pre-supposes that a party to the suit has the right to call upon his opposite party to give evidence and the Court has the power to compel the giving of evidence by the opposite party. Rule 14 of Order XVI does not give power to the Court to examine a party to the suit who is not present in Court. It is in the context of that power that Rule 21 has to be understood that a party to the suit can be required by the other party to the suit to give evidence and in that contingency the provisions as to witnesses shall apply. When a party to the suit does not mount the box to speak in support of his case, that can be a circumstance which would enable the Court to accept the case of the opposite party but in this case the trial Court has properly invoked the provisions of Rule 21, which says that in case where the Court thinks that it is necessary to direct a party to give evidence, the procedure regarding a witness could be applied by the Court regarding that party as well.
7 . The respondent/plaintiff in his application has successfully established the reasons for summoning of the two witnesses and as discussed above it is not as if the Court has no power to direct the examination of a party to the suit if it considers it necessary to order his examination.
8. This Court is therefore of the view that no interference is called for with the order of the learned trial Judge in the peculiar circumstances of this case; hence the revision petition is dismissed with no order as to costs.