(Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the fair and decretal order dated 08.01.2016 passed in I.A.No.92 of 2015 in O.S.No.61 of 2013 on the file of the I Additional District and Sessions Judge, Thoothukudi.)
The civil revision petition arises against the order dated 08.01.2016 passed in I.A.No.92 of 2015 in O.S.No.61 of 2013 on the file of the I Additional District and Sessions Judge, Thoothukudi.
2. According to the petitioner, the respondents filed a suit in O.S.No.61 of 2013 before the learned I Additional District and Sessions Judge, Thoothukudi for the relief of partition on the basis of a Will dated 07.12.1976. In the above said suit, the petitioner paid witness batta to the 1st plaintiff to examine his as defendant's side witness. But, the trial Court on 12.11.2014 refused to permit the petitioner to summon the 1st plaintiff. Aggrieved against the said order, the petitioner filed C.R.P.(MD) No.265 of 2015 before this Court. This Court, on 16.02.2015m dismissed the said civil revision petition on the ground that alternative remedy is avilable. Hence, the petitioner filed I.A.No.92 of 2015 under Order 16 Rule 21 of C.P.C., to issue summons of supina for examination of the 1st respondent/1st plaintiff. According to the petitioner, the first plaintiff is not the contesting plaintiff in the suit. However, the respondents objected the said application. The petitioner has also stated in the affidavit that the first plaintiff has not been examined as a witnesses to the said suit. The petitioner has to prove the share of the property, which belongs to the plaintiffs' mother. Therefore, he filed the instant application. However, the trial Court has erroneously dismissed the said application for the reason that the defendant cannot seek issuance of summons to the plaintiff and to compel them to examine as a witness in the said suit. Aggrieved against the said order, the present civil revision petition has been filed.
3. Per contra, the learned counsel for the respondents would submit that the application filed by the petitioner is not maintainable. The revision petitioner cannot compel the plaintiff to examine as witnesses in the suit. Therefore, the impugned order does not warrant interference by this Court and hence, the civil revision petition is liable to be set aside.
4. Heard the learned counsel for the petitioner and the learned counsel for the respondents and perused the materials available on record.
5. According to the petitioner, the respondent filed a suit in O.S.No.61 of 2013 for partition and separate possession. In the aforesaid suit, the first plaintiff is not the contesting plaintiff. The instant I.A.No.92 of 2015 has been filed to issue summons to the first plaintiff and to examine him as a witness in the aforesaid suit. According to the petitioner, if the first plaintiff has been examined, then, it could very well be established and proved the case and the share of the defendant could be elucidated from the said witness. Therefore, as per the provisions of Order 16 Rule 21 of C.P.C., the present application has been filed to summon the first plaintiff and to examine him as a witness.
6. The point for consideration in the present civil revision petition is as to whether the revision petitioner can seek the issuance of summons to the first plaintiff and to examine him as a witness in the said suit.
7. The instant application has been filed by the petitioner under Order 16 Rule 21 of C.P.C. It is useful to extract the provisions of Order 16 Rule 21 of C.P.C.
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 for as they are applicable.
8. At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the petitioner in V.K.Periyasamy alias Perianna Gunder V. Rajan reported in (2001)2 M.L.J.235, wherein, this Court has held in para 12 as follows:
12. If there was a total bar on the right of a party to summon another party to give evidence as a witness, Order 16, Rule 21 will not find a place in the code. The inclusion of this provision itself shows that there may be situations where a party may be called upon by another to give evidence as the latter's witness. In fact, in Appavoo Asary v. Sornammal Fernandes, 65 M.L.J. 734:A.I.R. 1933 Mad. 821, the learned Judge held as seen from the passage extracted above that when one party desires the presence of other party, the proper procedure is under Order 16. Therefore, if there are very good reasons, the court may exercise its discretion in favour of the party seeking permission. The Case laws with regard to Order 18, Rule 2 are to the effect that even the defendants who support the case of the plaintiff are entitled to give evidence and it is in fact their right and they cannot be shut out. In this case, the first defendant is not the contesting defendant and from the averments in the affidavit, it is seen that he has been made a party only so that the suit would not be dismissed for non-joinder. The petitioner relies on a document in which the first defendant is a signatory recognizing the right which is claimed by the petitioner in the suit. This is also not a case where a party who avoids the witness box calls upon the other side to give evidence. Evidence has been adduced on the side of the petitioner and documents have also been marked. The petitioner wants to elicit evidence with regard to two of the exhibits to which the first defendant is a party. The reasons that prevailed in the minds of the Judges for condemning the practice of summoning the other side witness do not exist in this case. The first defendant is not strictly an opposite party and this is also recognized by the respondent herein whose pleading is that the interest of the petitioner and the other defendants are common. In these circumstances, I see no reason why this application under Order 16, Rule 21 should not be allowed. Of course, if the first defendant is examined on the side of the petitioner, the petitioner will be bound by the evidence elicited from the said witness. The order of the court below is therefore set aside. C.R.P. is allowed. No costs.
9. In the case on hand, the first plaintiff is not a contesting party. Therefore, as per the decision cited supra, the revision petitioner is entitled to examine the first plaintiff as a witnesses in the said suit.
10. It is also appropriate to consider the decision of this Court in D.Babu V. K.A.Dinachandran reported in 2013(1) CTC 881, wherein, this Court has held in paras 8 to 10 as follows:
8. Therefore, having regard to the allegations made in the plaint, it cannot be stated that defendants 1 and 2 are formal parties and though they remained ex parte, they are necessary parties to the suit and they also supported the case of the plaintiff before the Debts Recovery Tribunal as stated above.
9. Further, in the judgment reported in (1999) 1 MLJ 679, after referring to the judgments in SHATRUGAN DAS v. SHAM DAS (AIR 1938 PC 59), PIRGONDA v. VISHWANATH (AIR 1956 BOMBAY 251) and other judgments, this court has held as follows:-
"8. Mulla on his Commentaries to Code of Civil Procedure, 15th Edition, has stated thus,
"Duty of suitors to give evidence on their own behalf In Lal Kunwar v. Chirajji Lal (m), their Lordships of the Privy Council severely condemned the practice followed in some parts of India of advocate omitting to call their own client as a witness in the hope of forcing their opponents to call him as their witness in order that they themselves may have the opportunity of cross-examining their own client when called by the other side. Referring to this practice, their Lordships said: 'it is a vicious practice, unworthy of a high-toned or reputable system of advocacy. It must embarrass and perplex judicial investigation, and, it is to be feared, too often enables fraud,' falsehood, or chicane to baffle justice."
Likewise, the practice of calling the opposite side as one's own witness has been disapproved. If a party, who is in a position to give evidence, does not go into the box, the court is free to draw an inference against him.
9. As early as in Shatrugan Das v. Sham Das A.I.R. 1938 P.C, 59 : 172 I.C. 633, it is held thus:
"The practice of calling the defendant as a witness to give evidence on behalf of the plaintiff is condemnable. In such a case the plaintiff must be treated as a person who puts the defendant forward as a witness of truth."
10. In Pirgonda v. Vishwanath, AIR 1956 Bom. 251, Justice Gajendragadkar (as he then was) held thus,
"Mr. Datar has also relied upon circular No. 161 of the circulars issued by this Court in the civil Manual. This circular has invited the attention of the subordinate Judges to the observations of the Privy Council in Kishori Lal v. Chuwni Lal 31 All 116 at 122(PC)(A). Their Lordships of the Privy Council have referred to the practice which sometimes seemed to obtain in some of the Courts in India of calling the party's opponent as a witness and they have observed that this practice is highly objectionable. 'Such practice', said their Lordships 'ought never to be permitted in the result to embarrass judicial investigation as it is sometimes allowed to be done."
Normally a party to the suit is expected to step into the witness box in support of his own case and if a party does not appear in the witness box it would be open to the trial court to draw an inference against him. If a party fails to appear in the witness box, it should normally not be open to his opponent to compel his presence by the issue of a witness summons."
11. Even in the decision relied on by the petitioner in V.K.Periyasamy alias Perianna Gunder V. Rajan reported in (2001)2 M.L.J.235, the law already settled by this Court has been relied on, wherein, the learned Judge has considered therein that since the first defendant cannot be strictly considered as an opposite party, whereas, the fourth defendant is the contesting party in the said suit. However, on the facts of the present case is concerned, all the plaintiffs have filed the suit. Therefore, the contention of the revision petitioner cannot be countenanced,.
12. In view of the facts and circumstances of the case alaong with the decisions cited supra, I am of the view that the trial Court has rightly dismissed the application and the same does not warrant interference of this Court and the civil revision petition is liable to be dismissed.
13. Accordingly, this civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.