- 1 - NC: 2025:KHC-D:6069 WP No. 107165 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO. 107165 OF 2018 (GM-CPC) BETWEEN: SHRI. YASHAVANTH S/O. BASAVANTAPPA SORGAVI AGE: 48 YEARS, OCC: WEAVER, R/O. BANHATTI-587311, TQ: JAMAKHANDI, DIST: BAGALKOT. …PETITIONER (BY SRI. S.C.BHUTI, ADVOCATE) AND: 1. THE JAMKHANDI URBAN CO-OPERATIVE BANK LTD., JAMKHANDI, BR. BANHATTI, BY ITS MANAGER, SHRI. SHIVALINGAYYA S/O. ISHWARAYYA MUDHOLMATH, AGE: 60 YEARS, OCC: BR. MANAGER, BANHATTI-587311, TQ: JAMKHANDI, DIST: BAGALKOT. 2. SMT. SUBHADHRABAI W/O. BASAVANTAPPA SORGAVI, AGE: 72 YEARS, OCC: WEAVER, R/O. BANHATTI-587311, TQ: JAMAKHANDI, DIST: BAGALKOT. 3. SHRI. RAJSHEKHAR @ SHANKAR S/O. BASAVANTAPPA SORGAVI, AGE: 52 YEARS, OCC: WEAVER, R/O. BANHATTI-587311, TQ: JAMAKHANDI, DIST: BAGALKOT. 4. SHRI. ASHOK S/O. BASAVANTHAPPA SORGAVI, Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.04.17 10:28:07 +0530 - 2 - NC: 2025:KHC-D:6069 WP No. 107165 of 2018 AGE: 50 YEARS, OCC: WEAVER, R/O. BANHATTI-587311, TQ: JAMAKHANDI, DIST: BAGALKOT. 5. SHRI. MALLIKARJUN S/O. RUDRAPPA HULAGABBALI, AGE: 65 YEARS, OCC: RETIRED, R/O. BANHATTI-587311, TQ: JAMAKHANDI, DIST: BAGALKOT. 6. SHRI. BASAVARAJ S/O. VIRUPAXAPPA LIMBIKAI, AGE: 53 YEARS, OCC: GOVERNMENT EMPLOYEE, R/O. BANHATTI-587311, TQ: JAMAKHANDI, DIST: BAGALKOT. 7. SHRI. KADAYYA S/O. DODDAYYA LINGAD AGE: 58 YEARS, OCC: AGRICULTURE, BEHIND MALLIKARJUN THEATRE, R/O. BANHATTI-587311, TQ: JAMAKHANDI, DIST: BAGALKOT. …RESPONDENTS (BY SRI. M.C.HUKKERI, ADVOCATE FOR R1; NOTICE TO R2, R4 TO R7 ARE SERVED; NOTICE TO R3 IS HELD SUFFICIENT) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO, QUASH THE IMPUGNED ORDER PASSED ON IA NO.VII IN O.S.NO.124/2016 (OLD NO.129/2014) ON THE FILE OF THE COURT OF SENIOR CIVIL JUDGE AND JMFC, BANAHATTI DATED 05.10.2018 VIDE ANNEXURE-E AND ETC. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM - 3 - NC: 2025:KHC-D:6069 WP No. 107165 of 2018 ORAL ORDER Captioned writ petition is filed by defendant No.1 assailing the order of the Trial Court passed on I.A.No.VII filed under Order XVI Rule 1 and 2 read with Section 151 of CPC seeking witness summons to defendant No.1 and to adduce further evidence to seek clarification in regard to ambiguity concerned to the suit schedule property. The said application was allowed. First defendant against whom witness summons is issued is before this Court. 2. Heard learned counsel appearing for the petitioner and learned counsel appearing for respondent No.1-Bank. 3. The present writ petition arises out of a recovery suit instituted by the first respondent – Bank seeking a decree for recovery of a sum of Rs.54,61,500/- allegedly due and payable by the defendants. In a suit for recovery of money, it is well-settled law that the primary burden lies on the plaintiff – in this case, the Bank to establish the existence of a legally enforceable debt. It is - 4 - NC: 2025:KHC-D:6069 WP No. 107165 of 2018 incumbent upon the Bank to substantiate its claim by producing cogent documentary evidence, such as the loan agreement, disbursement records, statements of account, acknowledgment of debt, and other relevant materials. The requirement to discharge the initial burden of proof is a settled principle of civil jurisprudence, as reiterated by the Hon’ble Supreme Court in Subhra Mukherjee v. Bharat Coking Coal Ltd.1, wherein it was held that the burden of proof initially rests on the party who asserts the affirmative of the issue. 4. In the instant case, instead of producing documentary evidence in support of its claim, the first respondent – Bank has filed an application under Order XVI Rule 1 and 2 of the Code of Civil Procedure, 1908 (CPC), seeking issuance of witness summons to defendant No.1, who is a contesting party to the suit. The law does not ordinarily permit a party to summon its adversary as a 1 AIR 2000 SC 1203 - 5 - NC: 2025:KHC-D:6069 WP No. 107165 of 2018 witness unless exceptional circumstances exist. Such a course of action is contrary to the adversarial nature of civil litigation. The Hon’ble High Court of Karnataka in M/s. Krithi Constructions v. K. Thippa Reddy2, has categorically held that the plaintiff cannot be permitted to circumvent the process of discharging the initial burden of proof by summoning the defendant as a witness, except in rare and justifiable circumstances. 5. A perusal of the application filed by the Bank under Order XVI Rules 1 and 2 CPC reveals that no valid or cogent grounds have been set out to justify the issuance of a witness summons to the contesting defendant. The reasons assigned are vague, cryptic, and lack the specificity that is necessary to invoke the Court's discretion under these provisions. This Court is of the considered view that the application filed by the Bank is not only misconceived but also appears to be a desperate attempt to shift the burden of proof onto the defendant in 2 ILR 2015 KAR 122 - 6 - NC: 2025:KHC-D:6069 WP No. 107165 of 2018 a suit where the plaintiff is required to produce foundational evidence to support its claim. The timing of the application is also significant, as it has been filed when the matter is ripe for final arguments, which lends credence to the inference that the move is a dilatory tactic rather than a genuine attempt to elicit evidence. 6. Despite the absence of sufficient grounds, the learned Trial Judge has proceeded to allow the said application without due consideration of the legal principles governing the issuance of summons to an adversarial party. The impugned order suffers from a fundamental flaw in reasoning, as it erroneously proceeds on the assumption that a plaintiff has an unqualified right to summon a defendant for the purpose of adducing evidence and producing documents. This view is not tenable in law and runs contrary to binding precedents. As held in Dharnidhar Mishra v. State of Bihar3, judicial 3 (2024) 10 SCC 605 - 7 - NC: 2025:KHC-D:6069 WP No. 107165 of 2018 discretion must be exercised judiciously and in accordance with settled principles, and not arbitrarily. 7. The impugned order also overlooks the dictum laid down in Krithi Constructions (supra), wherein it was observed that the practice of summoning a contesting defendant as a witness at the instance of the plaintiff must be discouraged unless supported by compelling reasons. The learned Trial Court has failed to address whether such exceptional circumstances exist and has not recorded any finding to that effect. The lack of judicial application of mind and the mechanical allowance of the application render the impugned order legally unsustainable. 8. In light of the above analysis, this Court is of the considered opinion that the impugned order suffers from manifest legal infirmities and is liable to be set aside. The application filed by the first respondent – Bank seeking issuance of witness summons to defendant No.1 cannot be sustained and warrants interference in the exercise of this - 8 - NC: 2025:KHC-D:6069 WP No. 107165 of 2018 Court’s supervisory jurisdiction under Article 227 of the Constitution of India. For the foregoing reasons, this Court passes the following: ORDER (i) Writ petition is allowed. (ii) Order dated 05.10.2018 passed on I.A.No.VII in O.S.No.124/2016 by the Senior Civil Judge and J.M.F.C., Banahatti is hereby set aside. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE CLK Ct:vh List No.: 1 Sl No.: 23