J.M. Sheth, J.
1. This is a revision petition filed under Section 115 of the Civil Procedure Code by the petitioner who was original defendant No. 1 in civil suit No. 7 of 1966, filed by opponents Nos. 1 and 2 against the present petitioner and opponent No. 3 (Original defendant No. 2) in the Court of Civil Judge, Junior Division, Sihor. The order passed by the trial Court below Ex. 25 is regarding the issue of summons to defendant No. 1 for giving evidence as a witness of the plaintiff.
2. Mr. Hathi, learned Advocate, appearing for the petitioner, urged that the Court had no jurisdiction to examine the opposite party as a witness. This practice of examining the opposite party as a witness has been condemned by the Privy Council. There is also a circular issued by the Bombay High Court prior to the date of bifurcation of the bigger Bilingual Bombay State in this behalf. There is also a decision of the Bombay High Court condemning such practice and that decision has also been given prior to the date of bifurcation of the bigger Bilingual Bombay State. In spite of it, the learned trial fudge has passed the impugned order and issued summons to examine defendant No. 1 as a witness of the plaintiff. This order should, therefore, be set aside by this Court in exercise of its revisional jurisdiction under Section 115 of the Civil Procedure Code.
3. It is true that the privy council in Lal Kunwar v. Chiranji Lal 32 Indian Law Reports (Allahabad) 104, has observed:
The species of advocacy tolerated by the Courts of law in the United provinces of India in which the unworthy effort of the advocate on each side is to force his opponent to produce his own client in order that he himself may have the opportunity to cross-examinating that client, with the result that, should the opponent refuse to be led into this trap, the parties, the principal witnesses, are never examined at all, condemned by the Judicial committee as a vicious practice unworthy of a high toned or reputable system of advocacy, as embarrassing and perplexing judicial investigation, and it was to be feared, too often enabling fraud, falsehood, or chicane to baffle justice.
It appears that these observations have been made as the practice is invoked to compel the other side to examine the adversary as its own witness with a view to gain by cross-examining one's own party.
4. In Civil Manual, Vol. I issued by the High Court of Judicature, Bombay, Appellate Side, for the guidance of the civil Courts and officers subordinate to it and published in the year 1960, in paragraph 185 it is stated:
185(1) It appears that in some original suits the parties still abstain from coming forward as witnesses on their own behalf to substantiate by their own evidence on solemn affirmation the Statements of fact on which they respectively ask the Court to give judgment in their favour. The non-appearance in the witness-box of a party in support of his own allegation of facts within his own knowledge, would ordinarily be regarded, in the absence of some satisfactory explanation, as throwing grave doubt on the bona fides of his case.
(ii) The practice of calling the opponent in the case as one's own witness has been condemned by the Privy Council.
There is, therefore, no doubt that even in this circular issued by the Bombay High Court prior to the date of the bifurcation of the bigger Bilingual Bombay State, this practice of calling the opponent in the case as one's own witness which is condemned by the Privy Council has been referred to. It could not, therefore, be gainsaid that ordinarily such practice of calling the opponent in the case as one's own witness has to be deprecated and requires to be discouraged.
5. In Pirgonda v. Vishwanath : AIR1956Bom251 , Gajendragadkar J. (as fie then was) has also made similar observations. He has observed:
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 the High Court also.
It is significant to note that in this decision also it has been observed that if a party fails to appear in the witness box, it should normally not be open to the opponent to compel his presence by the issue of summons. It does not Jay down that rule is invariable and the opponent can never be compelled to be examined as a witness by the other side by the issue of a witness summons. Normally, no doubt that would be the position.
6. The trial Court, in the instant case has kept in mind this position of law and has observed that this would be the normal practice. But in view of certain circumstances referred to, by him, he finds that in the interest of justice, it is necessary to depart from this normal practice. He has referred to the aforesaid observations made by the Bombay High Court. The reasons assigned by him for the departure from this normal practice are stated by him in the following terms:
In the present case the burden lies upon the plaintiffs in proving all the material issues and the burden is not upon the defendants. So there is no question of drawing any adverse inference against the defendant No. 1 by his non-examination. Here if the plaintiffs lead sufficient evidence to prove the issues then they will succeed and if they will not be able to do so, they will fail in it. Thus for the purpose of discharging the burden and proving their case the plaintiffs want to rely upon the evidence of defendant No. 1 along with other evidence. It is well settled rule of justice that a party can prove his case even by the evidence of his adversary and in the circumstances of the case the plaintiffs should not be deprived of this material right.
To summon or not a party as a witness of another party is a matter of discretion and the discretion is a judicial discretion and if ends of justice require to utilise such discretion, the Court must utilise the discretion and in the present case the so called admissions of defendant No. I are such which, if proved, go to the root of the case and will be material in deciding the issues of this case and hence the plaintiffs cannot be deprived of their material right of this type. Thus the above cited ruling of the Bombay High Court, which lays down a general principle in the normal circumstances, is not applicable to the facts of the present case and as the ends of justice require for issuing summons to the defendant No. 1 for bringing the true facts on record, I wish to utilise my discretion for the same.
7. It is significant to note that in the instant case, defendant No. 1 had in a prior proceeding made certain admissions which are relevant for the decision of the question involved in the present suit. If this defendant No. 1 is not examined as a witness by the plaintiffs, the result would be that there would be an occasion for defendant No. 1 to say that he had an opportunity to explain the admissions made by him in a prior proceeding. Defendant No. 1 has made it quite clear that he is not going to examine himself as his own witness. The burden of proof of all the material issues in the instant case is on the plaintiffs. These are the circumstances which have been referred to, by the learned trial Judge for not following the normal practice and for departing from that normal practice. It is in these circumstances that this Court has to decide the question whether this order could be said to be an order having been passed without jurisdiction or the Court has exercised jurisdiction illegally.
8. Order 16, Rule 21 of the Civil Procedure Code in terms state:
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 thus evident that ordinarily the provisions regarding the witnesses stall apply when a party to a suit is required to give evidence or to produce a document. There is nothing in this Order 16 to indicate that the Legislature has put any prohibition from examining the opposite party as a witness by its adversary.
9. Mr. Hathi invited my attention to the decision of the Mysore High Court in Mallangowda v. Gavisiddangowda A.I.R. 1959 Mysore 194. In para 7 of the Judgment, at page 196, the relevant observations made are:
In this case whether the transaction is an absolute sale or not has to be gathered from reading the plaint as a whole and putting it in juxta position with the evidence in this case. Plaintiff himself has been examined as a witness, no doubt, on behalf of the defendant. We have, in unmistakable terms, stated in this Court previously that this practice of calling the opposite party as a witness on his side should not be countenanced as it is not in the interests of justice.
These are also the general observations made and ordinarily, the practice that should be followed, should be of not examining the opposite party as one's own witness.
10. Similar observations have been made by a Division Bench of the Lahore High Court in Biram Das v. Mangal Singh A.I.R. 1929 Lahore 868. (2) It is observed:
'The practice of parties examining each other as witness on his own behalf is highly objectionable and embarrassing. It has been repeatedly condemned by their Lordships of the Privy Council and should be discontinued by the legal profession.' These are also the general observations made.
10.1 Mr. Hathi also invited my attention to the decision of this Court in Ismail H. Mohammed v. The Stale of Bombay (now Gujarat) VII Gujarat Law Reporter 209, Vakil I, has observed therein:
Circular rule No. 410 is not made under any provision of any enactment or under the High Court's rule-making power under the Civil Procedure Code and it is true, therefore, that such a rule cannot be said to have the force of law as the rules made under an enactment. But that by itself cannot be the only criterion to decide the point under consideration. Having regard to the fact that Rule 11 does not make any provisions that the District Judge will not write any judgment, Circular No. 410 is not in any direct conflict with any part of Rule 11 of Order XLI.
The High Court has authority under its powers of superintendence to make rules to be followed by the subordinate judiciary to ensure dispensation of justice in accordance with acknowledged principles of law and natural justice. The subordinate Court is bound by such rules unless it is in direct conflict with any statutory provision or any rule made thereunder.
I am in respectfully agreement with the aforesaid observations made by Vakil J. In the instant case, simply because the circular referred to, in para 185 of the Civil Manual is not made under the rule-making power of the High Court, it will not justify the subordinate Court to ignore that circular. The Courts below are 'required to deprecate this practice of examining the adversary as one's own witness. That would be the normal rule, but it could not be an invariable rule as has been, suggested by Mr. Hathi. The trial Court has given good reason for departing from this normal rule and I see no good reason to interfere with such an order in the exercise of revisional jurisdiction of this Court. By such interference the result would be that instead of doing substantial justice, one would encourage the party to resort to such practice to avoid certain inconvenient positions in view of the previous admissions. The revision petition, therefore, fails.
11. The revision petition is dismissed. Taking into consideration the circumstances of the case, each party is ordered to bear its own costs in this revision petition.
Rule is discharged.