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 the 7 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
Bombay High Court
Suresh S/O Sahebrao Tawale vs (Orig on 6 August, 2012
Bench: S. S. Shinde
Rule. 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) and 3 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 the 5 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 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 6 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 the 7 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
...
AGP/1673-11wp
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