N. Srinivasan and N.S. Balanchandhar vs Mrs. Vidya Durai

R.S. Ramanathan, J.—Defendants in O.S. No. 3421 of 2007 on the file of the XVI Assistant Judge, City Civil Court, Chennai are the

revision Petitioners.

The Respondent/Plaintiff filed the above suit for recovery of possession of the suit property and for damages for use and occupation from

1.4.2007 to 20.4.2007. The case of the Respondent/Plaintiff was that the first Defendant was a tenant under her in respect of the suit property

which was constructed in the year 2005 and the suit property was let out to the first Defendant for residential purpose, but, he is using the same for

non-residential purpose. The first Defendant committed wilful default in payment of rent and therefore, the first Defendant was asked to vacate the

premises and for that purpose, the suit was filed.

The revision Petitioners filed written statement contending that it was agreed between the parties that the lease period was for three years and it

would be renewed for a further period of two years and when the parties were about to enter into agreement of lease, the Plaintiff''s sister Mrs.

Bama Ravi persuaded the Defendants not to enter into a written agreement and the Defendants also agreed tithe same as the first Defendant is a

close friend of Mr. Ravi, the husband of Mrs. Bama. It was further stated that the rent was paid to Mrs. Bama and the other allegations in the

plaint were denied.

Thereafter, the trial commenced and after the examination of DW1, the revision Petitioners filed I.A. No. 2195 of 2010 under Order XVI Rule

1(2) of the CPC to issue subpoena to Mrs. Bama Ravi for the purpose of adducing evidence on their side. That application was dismissed and

against the same this revision is filed.

Mr. Parthasarathy, learned Counsel for the revision Petitioners submitted that it is the specific case of the revision Petitioners that the parties

agreed to have to lease for a period of three years initially extendable for further period of two years and that was known to Mrs. Bama Ravi and

at her instance, the written agreement of lease was not executed and the Plaintiff also authorized Bama Ravi to take care of the building and to

receive rent and manage the property and therefore, she is the competent witness to speak about the period of lease and therefore, she has to be

summoned.

Mr. Balaji, learned Counsel for the Respondent submitted that for the relief prayed for in the suit, Mrs. Bama Ravi is not a necessary witness

and the application was filed to drag on the proceedings and there is no necessity for the application.

According to me, the court below has rightly dismissed the application. As stated supra, the suit is filed for recovery of possession and for

damages. The case of the Plaintiff was that the agreement of sale was oral and no period was prescribed and they have issued notice directing the

revision Petitioners to vacate the premises and as the revision Petitioners refused to vacate, the suit was filed. Only in the written statement, it has

been stated by the revision Petitioners that Bama Ravi was aware of the period of lease and at her instance, the written agreement was not entered

into.

Having regard to the issues to be decided in the suit, in my opinion, there is no need to examine Bama Ravi. In the judgment in Sri Aurobindo

Ashram Trust v. Kamal Dora (2003) 3 MLJ 7 it has been held as follows:

So, the legal position is that a party who seeks for a prayer to the court to issue summons to a witness, must reveal to the court the purpose for

which the witness is proposed to be summoned. Once such an application is filed it is for the court to use its discretion and to decide whether

summons are to be issued to those witnesses. It has to be pointed out that the issue of summons is not automatic and in appropriate cases or in

cases where the objections are raised, the bona fides of the request has to e looked into an appropriate orders passed.

Therefore, issuance of summon is not automatic. The court has got power to consider the request and pass appropriate orders. As the evidence

of Mrs. Bama Ravi is not necessary to decide the issue involved in the suit, the court below has rightly dismissed the application. I do not find any

ground to interfere with the order of the court

In the result, the civil revision petition is dismissed. No costs. The connected miscellaneous petition is also dismissed

It is submitted by Mr. P.B.Balaji, learned Counsel appearing for the respondent that a direction may be issued to the Court below to dispose

of the suit at the earliest.

He further submitted that the suit is posted for arguments. Hence, the learned XVI Assistant Judge, City Civil Court, Chennai is directed to

dispose of the O.S.No.3421 of 2007, within a period of six weeks from the date of receipt of a copy of this order.