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Pirgonda Hongonda Vs. Vishwanath Ganesh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 351 of 1954
Judge
Reported inAIR1956Bom251
ActsCode of Civil Procedure (CPC), 1908 - Order 16, Rule 21 - Sections 115
AppellantPirgonda Hongonda
RespondentVishwanath Ganesh and ors.
Advocates:K.G. Datar, Adv.
Excerpt:
.....prevailing in our courts and seeks to introduce a practice which has been condemned by the privy council in very strong..........jurisdiction of this court, particularly when the order appears to have been issued by the learned judge in the exercise of his discretion. but he contends that the order is inconsistent with the practice generally prevailing in our courts and seeks to introduce a practice which has been condemned by the privy council in very strong terms. 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. chunni lal' 31 all 116 (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.....
Judgment:

1. In a suit for damages, the plaintiff applied that a summons should be issued to the defendants as his witness and that, certain interrogatories should be addressed to them. The learned trial Judge rejected his prayer for addressing interrogatories to the defendants, but has ordered that summons should be issued against the defendants. It is this order which has given rise to the present revisional application.

2. Mr. Datar concedes that ordinarily an in-terlocutory order of this kind would not be sub-ject to the revisionfll jurisdiction of this Court, particularly when the order appears to have been issued by the learned Judge in the exercise of his discretion. But he contends that the order is inconsistent with the practice generally prevailing in our Courts and seeks to introduce a practice which has been condemned by the Privy Council in very strong terms.

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. Chunni Lal' 31 All 116 (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 a 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.

That appears to be the effect of Circular No. 161 issued by this Court. Apparently, the atten-tion of the learned Judge has not been drawn to this circular, otherwise he would not have issued the summons as prayed for by the plaintiff. in the result, I set aside the order passed by the learned Judge directing the issue of a witness summons against the defendants in this case.

3. The application is allowed and the rule is made absolute. There will be no order as to costs.

4. Rule made absolute.


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