" '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
witnessbox 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."
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETTION NO.1673 of 2011
Suresh s/o Sahebrao Tawale,
VERSUS
1. Uttam s/o Shankar Ghadge,
DATE : AUGUST 6th, 2012
Rule made returnable, heard
finally with the consent of Counsel for parties.
2. Learned Counsel appearing for the
petitioner submits that, by way of impugned order
the original defendant no.4 is summoned / called
as witness of the plaintiff. It is submitted
that there is no any enabling provision to call
the defendant as a witness of the plaintiff.
Learned Counsel appearing for the petitioner
invited my attention to the exposition of Lahore
High Court in the case of Biram Das v. Mangal
Singh and others ( A.I.R. 1929 Lahore 868 (2)
wherein the said Court has taken a view that, the
practice allowing parties to examine each other
as witnesses on its own behalf is objectionable.
Learned Counsel further invited my attention to
the reported judgment of Privy Council, in the
case of Mahunt Shatrugan Das vs. Bawa Sham Das
and others ( A.I.R.1938 Privy Council 59) and3 WP NO.1673/2011
also the judgment of High Court of Jammu and
Kashmir in the case of Ganda Mal v. Bhulloo Ram (
A.I.R. (38) 1951 Jammu & Kashmir 5), reported
judgment of the Mysore High Court in the case of
Mallangowda and others vs. Gavisiddangowda and
another ( AIR 1959 MYSORE 194 ( V 46 C 80), and
further the judgment of this Court in the case of
Ramdas Dhondibhu Pokharkar vs. State Bank of
India and another ( 2003(1) ALL MR 76), and
Pirgonda Hongonda v. Vishwanath Ganesh and
others ( AIR 1956 Bombay 251 ( V 43 C 104 April)
to contend that the practice of calling defendant
by plaintiff as witness is condemnable.
Learned Counsel for the petitioner further
submits that, there are no any specific reasons
assigned by the trial Court for calling defendant
no.4 as a witness of the plaintiff. It is
submitted that the evidence of the plaintiff and
also the defendants is closed. Evidence Close
Purshis are filed by the plaintiff as well as the
defendants and, therefore, at that stage, it was
not necessary for the trial Court to call the
defendant no.4 as a witness of the plaintiff. It
is always open to the Court to draw adverse
inference if the defendant does not step in the
witness box in pursuance to filing of written
statement. Therefore, Counsel for the petitioner
submits that the petition may be allowed.4 WP NO.1673/2011
3. On the other hand, learned Counsel
appearing for all the respondents has tendered
across the Bar affidavit in reply. Relying upon
averments in the affidavit in reply, Counsel for
the respondents submits that, though defendant
no.4 has filed the written statement, he did not
enter in the witness box to depose.Therefore, an
application was filed for calling defendant no.4
as witness of the plaintiff. Accordingly,
application filed by the respondents was allowed
and the defendant no.4 was called as a witness of
the plaintiff. Learned Counsel for the
respondents pressed into service the judgment of
the Patna High Court in the case of Sri Awadh
Kishore Singh and another vs. Sri Brij Bihari
Singh and others ( AIR 1993 PATNA 122) and
judgment of this Court in the case of Ramdas
Dhondibhu Pokharkar (supra), and more
particularly paragraph no.5 of the said judgment.
Therefore, relying upon the averments in the
affidavit in reply and the afore mentioned two
expositions of Patna High Court and of this
Court, Counsel appearing for the respondents
submits that the writ petition is devoid of any
merits and same may be dismissed.
4. I have given due consideration to the
rival submissions. Upon careful perusal of the
impugned order, it appears that, the trial Court
has not given detailed and cogent reasons why the5 WP NO.1673/2011
defendant no.4 is required to be summoned as a
witness of the plaintiff. It is not in dispute
that the evidence of the plaintiff and, so also
that of the defendants, is closed, and they have
filed evidence close Purshis.
5. As rightly contended by the Counsel for
the petitioner the Privy Council, in the case of
Mahunt Shatrugan Das (supra), has held that 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.
This Court also had occasion, in the case of
Pirgonda Hongonda (supra), to consider the point
whether the plaintiff can call the defendant as
his witness and upon considering rival
submissions on merits, this Court in said
exposition has reproduced the observations of
Privy Council in Kishori Lal v. Chunni Lal ( 31
ALL 116 at p 122 (PC) (A), thus:
" '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
witnessbox it would be open to the trial
Court to draw an inference against him. If a
party fails to appear in the witness box, it6 WP NO.1673/2011
should normally not be open to his opponent
to compel his presence by the issue of a
witness summons."
The view taken by the Privy Council is also
reiterated by the High Court of Jammu and
Kashmir.
The contention of the Counsel for the
respondents that the judgment of this Court in
the case of Ramdas Dhondibhu Pokharkar (supra),
and in particular, the ratio laid down in
paragraph no.5 has application in the present
case, is devoid of any merits. Upon careful
reading of the said judgment, it appears that the
Bank employee was summoned to identify the
signature and he was not called as a defendant as
such. Therefore, in the facts of this case,
reliance placed by the Counsel for the
respondents, in the case of Ramdas Dhondibhu
Pokharkar is misplaced.
6. In view of the authoritative
pronouncements of the Lahore High Court, Privy
Council, other judgments of this Court, the High
Court of Mysore and High Court of Jammu and
Kashmir, I am of the opinion that, in the facts
of this case, it was not necessary for the trial
Court to entertain the application of the
respondents to call the defendant no.4 as a
witness of the plaintiffs. It was open for the
trial Court to draw adverse inference, if the7 WP NO.1673/2011
defendant No.4 opted not to enter in the witness
box in pursuance to filing of written statement
by him. However, after the parties have led the
evidence and evidence close Purshis are filed, it
was not necessary to pass the impugned order.
Therefore, I am of the opinion that the
impugned judgment and order deserves to be set
aside. Accordingly, same is quashed and set
aside. However, it is made clear that it will be
open for the trial Court to draw adverse
inference, if any, since the defendant no.4 has
chosen not to enter into the witness box, though
written statement is filed by him.
Writ Petition is allowed to the above extent
and the same stands disposed of.
Rule made absolute.
( S.S.SHINDE )
JUDGE
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