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Syed YasIn Vs. Syed Shaha Mohd. Hussain - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 986 of 1964
Judge
Reported inAIR1967Kant37; AIR1967Mys37
ActsCode of Civil Procedure (CPC), 1908 - Sections 115, 151 and 342A - Order 9, Rule 12 - Order 16, Rules 1, 14, 19, 20, 21, 21(1) and 21(2); Evidence Act
AppellantSyed Yasin
RespondentSyed Shaha Mohd. Hussain
Advocates:M.M. Jagirdar, Adv.
Excerpt:
.....party to the suit not entering the witness-box with the object of forcing the other side to examine him as his own witness, to enable his lawyer to cross-examine him. in that case, like the instant case, the defendant wanted to examine the plaintiff as his witness. sri jagirdar contends, this decision clearly shows that the defendant can summon and examine the plaintiff as a witness on his behalf. in any opinion, this rule clearly indicates that one party to the suit can examine the other party as his witness or require him to produce documents. instead of there being any prohibition in the code as regards the examination of one party to the suit by the other, this rule clearly enables one party to the suit to require the other party to give evidence. it is also interesting to note that..........not permit the examination of one party by the other party and that in no circumstance can one party examine the other party as his witness.5. sri jagirdar has also cited before me the decision in puran singh relu singh v. mathra das, air 1934 lahore 126. this decision states that if a party appears as a witness on behalf of the opposite party, the court before proceeding to record his statement should find out whether he proposes to appear us his own witness. if the party declares that he does not propose to appear as his own witness, the court could draw adverse inference against him. if the party however, insists on examining the opposite party as his own witness, the court should be careful not to allow to cross-examine his own witness, because, unless the witness is declared.....
Judgment:
ORDER

1. The defendant in the lower Court is the petitioner in this revision petition. The respondent filed a suit for the recovery of a sum of Rs 370 from the petitioner. In the suit, the respondent examined one witness and closed his case. The petitioner filed an application before the trial Court to examine the respondent (plaintiff) as a witness on his behalf the trial Court rejected his application. The petitioner has filed this revision questioning the correctness of the said order.

2. Shri Manohar Rao Jagirdar, the learn-ed counsel for the petitioner, contends that the trial Court had no jurisdiction to reject the application of the petitioner praying that the plaintiff should be examined as a witness on his behalf. He argues that there is no provision in the Code of Civil Procedure or in the Evidence Act, which prohibits a party from calling any person and examining him as his witness. The Court below was bound to summon the plaintiff as a witness on behalf of the petitioner. The trial Court had no jurisdiction to shut out the evidence on behalf of the petitioner.

3. The respondent is unrepresented in this Court Shri Jagirdar has fairly brought to my notice the observations of the Privy Council in Shatrugan Das v. Bawa Sham Das, MB 1938 PC 59, wherein their Lordships condemned the practice of calling the defendant at a witness to give evidence on behalf of the plaintiff. In such a case the plaintiff must be treated as a person who puts the defendant forward us a witness of truth. The contention of Shri Jagirdar is that the Privy Council has condemned the practice of each party forcing the opponent to examine his own client, in order that he himself may have the opportunity of cross examination his client. His submission is that the Privy Council has nowhere stated that in bona fide cases a party has no right to summon and examine the other party. The party which summons the opposite side takes risk of treating as true whatever the other side states.

4. It is true that the Privy Council has in other decisions also condemned in emphatic terms, the practice of a party to the suit not entering the witness-box with the object of forcing the other side to examine him as his own witness, to enable his lawyer to cross-examine him. It has been stated that the practice, apart from being unprofessional makes it very difficult for the Court to find out the truth. But Shri Jagirdar is right in contending that the Privy Council has not stated that the law does not permit the examination of one party by the other party and that in no circumstance can one party examine the other party as his witness.

5. Sri Jagirdar has also cited before me the decision in Puran Singh Relu Singh v. Mathra Das, AIR 1934 Lahore 126. This decision states that if a party appears as a witness on behalf of the opposite party, the Court before proceeding to record his statement should find out whether he proposes to appear us his own witness. If the party declares that he does not propose to appear as his own witness, the Court could draw adverse inference against him. If the party however, insists on examining the opposite party as his own witness, the Court should be careful not to allow to cross-examine his own witness, because, unless the witness is declared hostile, the party producing the witness has no right to cross-examine his own witness. Shri Jagirdar argues that if the Court follows this procedure, the danger of one party summoning the other party, pointed out by the Privy Council can be avoided.

6. Sri Jagirdar has strongly relied on Bhupathiraju Suryanarayana Raju v. Bantupalli Appanna, AIR 1969 Andh Pra 645 in support of his contention that a party can summon the opposite party and examine him as his witness. In that case, like the instant case, the defendant wanted to examine the plaintiff as his witness. As the plaintiff did not appear, the learned Munsiff, purporting to act under Order IX, Rule 12, C. P. C. dismissed the suit. This order was set aside in revision. Therein his Lordship observed that the proper procedure in such cases is to issue summons to the plaintiff and if he does not appear, to issue warrant and adopt the necessary coercive measures as laid down by the Code of Civil Procedure. Sri Jagirdar contends, this decision clearly shows that the defendant can summon and examine the plaintiff as a witness on his behalf.

7. The contention of Sri Jagirdar is that the Code of Civil Procedure does not prohibit one party from examining the other party as his own witness. He has relied on Order XVI, Rule 1. C. P. C. which states that at any time after the suit is instituted, the parties may obtain, on application to the Court, summons to persons whose attendance ii required either to give evidence or to produce documents. Sri Jagirdar argues that as per Rule 1 of Order XVI, a party to the suit has got a right to summon anybody he likes and the Court has no jurisdiction to refuse to summon any person whom the party wants to examine. If the legislature's Intention was to prohibit the examination by one party of the other party, it would have specifically stated so. Sri Jagirdar has also relied on Aswini Kumar v. Anukul Chandra, in : AIR1950Cal326 and Tara Prasanna v. Jhaman Ram, AIR 1963 Pat 8 in support of his contention that a party has got a right to summon any witness that he likes. But these rulings are not of much assistance to the petitioner, as the Court, in these cases, was not considering the question of examination of one party by the other but was considering the question of examination of an expert witness at a late stage in the case

8. A close examination of the provisions of Order XVI of the Code which deals with the summoning and attendance of witnesses, makes me come to the conclusion that there is considerable force in the contention of Sri Jagirdar that one party can apply for the examination of the other party as his witness. As already pointed out there is no such restriction in Rule 1 of Order XVI. If the intention of the Legislature was to prohibit the examination of one party by the other as his witness, it would have stated so. It is significant that nowhere in the Code of Civil Procedure there is any prohibition or restriction as regards the examination of one party by the other as a witness, as in Section 342-A of the Code of Criminal Procedure, which specifically states that an accused shall not be called at a witness except on his own request in writing. The prosecution has no right to compel the examination of the accused as a witness.

9. Rule 19 of Order XVI, C. P. C. deals with cases where the Court cannot 'compel the attendance' of a witness. Here again if the Intention of the legislature was to prohibit the examination of one party by the other, another Sub-clause would have been added to the above rule stating that one party in a suit has no right to examine the other party.

10. Rules 14 and 20 of Order XVI, C. P. C. deal with the powers of the Court to summon Court witness. Rule 14 states :

'Subject to the provisions of this Code at to the attendance and appearance and to any Law for the time being in force, 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 * * * *' Rule 20 of the said Order states

'Where any party to a suit present in Court refuses, without lawful excuse, when required by the Court, to give evidence or to produce any document then and there in his possession or power, the Court, may pronounce judgment against him or make such order in relation to the suit as it thinks fit.'

Rule 20 gives power to the Court, when it so requires, to direct any party to a suit who is present in Court, to give evidence or to produce any document; If the party without lawful excuse, refuses to obey the direction of the Court, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit. Prom this it is apparent that the Court can require the examination of a party if he is present in Court. But the same power has not been given to the Court to compel the examination of a party if he is not present in Court. The Legislature has thought fit to impose certain limitations on the powers of the Court in summoning and examining as Court witness a party to the suit. If the intention of the Legislature was to impose any limitations on the power of one party in summoning and examining the other party as a witness, as stated earlier the legislature would have stated so, as it has done in Rule 14 of Order XVI of the Code of Civil Procedure

11. That it is possible for one party to examine the other party as a witness, is made clear by Rule 21 of Order XVI which reads an follows:

'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.'

It is obvious that this rule does not refer to evidence given by a party to the suit on IMS own behalf as a witness. The words used in the rule are 'Where any party to a suit is required to give evidence. .....' The words required to give evidence' denote, not voluntary act of giving evidence by a party in his own favour, but required to do so by the other side or the Court, This rule makes the provisions of the Code as to the witness applicable as far as possible, to parties who are required to give evidence or produce documents.

In any opinion, this rule clearly indicates that one party to the suit can examine the other party as his witness or require him to produce documents. Instead of there being any prohibition in the Code as regards the examination of one party to the suit by the other, this rule clearly enables one party to the suit to require the other party to give evidence. It is also interesting to note that the Madras, Andhra Pradesh and Kerala High Courts have introduced the following amendment to the said Rule, which is Rule 21 (1):

'Where a party in a suit is required by any other party there to give evidence or to produce documents, the provisions as to witnesses shall apply to him as far as applicable.'

Sub-rule (2) of Rule 21 is not material for our purpose. The amendment introduced by these High Courts support the conclusion that I have come to that under the Code, one party to a suit can summon the other party thereto to give evidence on his behalf or to produce any document.

12. No reasons have been given by the trial Court for rejecting the application of the petitioner for summoning the plaintiff as his witness. The learned Munsiff has only stated as follows:

'..... At that stage the defendant has sought for summoning Sajjada (Plaintiff) as defence witness and I find that the defendant is not entitled for such a relief.

In the result the application is dismissed No costs. ****'

The trial Court does not seem to have applied its mind to the question whether the defendant can examine the plaintiff as his witness, There is nothing on record to show that the application of the petitioner was not bona fide or that it was vexatious or it was an abuse of the process of the Court. Though the petitioner has a right to summon the other party to the suit and examine him as a witness, it was possible for the Court, if it came to the conclusion that the said application of the petitioner was an abuse of the process of the Court, acting under its inherent powers under Section 151 of the Code of Civil Procedure, to disallow the application. In the instant case, there is no such finding by the Court below the petitioner has therefore, a right to examine the plaintiff as his witness. It is clear that an order refusing to examine any person as a witness in the case, is revisable under Section 115 of the Code of Civil Procedure; See : AIR1950Cal326 and : AIR1953Pat8 .

13. In the result, this revision petition is allowed and the order of the trial Court is set aside. The Court below is directed to issue summons to the plaintiff for examination as a witness on behalf of the petitioner. In the circumstances of the case, there will be no order as to costs.

14. Revision allowed.


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