Karnataka High Court
M. Sharadamma vs Kiran Kumar on 9 July, 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JULY, 2025
BEFORE
R
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.50575/2019 (GM-CPC)
BETWEEN:
1. M. SHARADAMMA
W/O LATE SRI. NAGARAJ M.K.
AGED ABOUT 34 YEARS
OCC: HOUSEWIFE
R/O YAMUNA NILAYA
DOOR NO.117/10-45
Digitally signed IST FLOOR, T.C. LAYOUT
by RUPA V R.M.C. ROAD, DAVANAGERE-577001.
Location: High
Court of 2. MASTER KISHAN NAGARAJ MELLEKATTE
karnataka S/O LATE SRI. NAGARAJ M.K.
AGED ABOUT 11 YEARS
OCC : HOUSEWIFE
R/O YAMUNA NILAYA
DOOR NO.117/10-45
IST FLOOR, T.C. LAYOUT
R.M.C. ROAD, DAVANAGERE-577001
REP. BY NATURAL GUARDIAN
HIS MOTHER M. SHARADAMMA
W/O LATE SRI. NAGARAJ M.K.
3. MASTER ROHAN NAGARAJ MELLEKATTE
S/O LATE SRI. NAGARAJ M.K.
AGED ABOUT 10 YEARS
OCC : HOUSEWIFE
R/O YAMUNA NILAYA
DOOR NO.117/10-45
1st FLOOR, T C LAYOUT
RMC ROAD, DAVANGERE 577 001
REPRESENTED BY NATURAL GUARDIAN
HIS MOTHER M. SHARADAMMA
W/O LATE SRI. NAGARAJ M.K.
...PETITIONERS
(BY SRI. DEEPAK S. SHETTY, ADV.,)
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AND:
1. KIRAN KUMAR
S/O LATE SRI. PREMCHAND
AGED ABOUT 49 YEARS
BUSINESS MAN
NO.23, KLIKADEVI ROAD
DAVANGERE 577 001.
2. N. MALLIKARJUNA
S/O LATE SRI. N.S. SANNAVEERAPPA
AGED ABOUT 57 YEARS
OCC : BUSINESS
R/O DOOR NO.2035/87
13th CROSS, ANAJAEYA BADAVANE
DAVANGERE 577 004.
3. N. RAJESH
S/O LATE SRI. N. VEERABADARAPPA
AGED ABOUT 48 YEARS
OCC : BUSINESS
R/O DOOR NO.2035/87
13th CROSS, ANAJAEYA BADAVANE
DAVANAGERE 577 004.
...RESPONDENTS
(BY SRI. S.D.N. PRASAD, ADV., FOR R1
R2 SERVED AND UNREPRESENTED V/O/DTD:18.02.2021
NOTICE TO R3 IS D/W)
---
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI OR ORDER OR DIRECTION OR WRIT TO QUASH THE
ORDER DATED 12.09.2019 PASSED ON I.A.NO.15 IN
O.S.NO.80/2017, PASSED BY THE II ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC AT DAVANGERE & ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
03.07.2025, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS
DAY, THE COURT MADE THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
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CAV ORDER
This writ petition is filed challenging the order dated
12.09.2019 passed on I.A.No.15 in O.S.No.80/2017 by the II
Additional Senior Civil Judge and JMFC, Davanagere.
2. Heard.
3. Sri.Deepak S. Shetty, learned counsel appearing for
the petitioners submits that the Trial Court committed a grave
error in allowing an application filed by the respondent No.1 to
summon the witness. The Trial Court allowed the application to
summon the petitioner No.1-defendant No.1 as a witness on
behalf of the plaintiff-respondent No.1, which is contrary to the
settled principles of law. It is submitted that the plaintiff-
respondent No.1 has to prove the case based on his pleadings
and evidence and he cannot compel the petitioner No.1-
defendant No.1 to speak in the witness box in his favour. It is
further submitted that the respondent No.1 examined 3
witnesses. During the cross-examination, there were
admissions with regard to the execution of the alleged sale
agreement and PWs-2 and 3 also gave inconsistent evidence
and to overcome the same, such application is filed which was
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allowed by the Trial Court. There cannot be summoning of the
opponent as a witness in the Court. In support of his
contentions, he placed reliance on the following decisions:
(1) MALLANGOWDA AND ORS. Vs.
GAVISIDDANGOWDA AND ANOTHER1
(2) JORTIN ANTONY AND ORS. Vs. PADMANABHA
DASA MARTHANDA VARMA AND ORS.2
(3) SURESH S/O SAHEBRAO TAWALE Vs. UTTAM
S/O SHANKAR GHADGE AND ORS.3
(4) MINOR ARUMUGAM ALIAS LOGESH Vs. STATE
BANK OF INDIA4
Hence, he seeks to allow the petition.
4. Per contra, Sri.S.D.N.Prasad, learned counsel
appearing for the respondent No.1 supports the impugned
order and submits that the petitioner No.1 did not come
forward to depose before the Court which compelled the
respondent No.1 to file an application to summon her. It is
submitted that the law does not prohibit summoning of
opposite party as a witness, which has been rightly considered
1
AIR 1959 MYSORE 194
2
AIR 2000 KER 369
3
(2012) 5 ALL MR 880
4
LAWS (MAD) 2005 7 208
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by the Trial Court taking into consideration the decision of this
Court. Hence, he seeks to dismiss the petition.
5. I have heard the arguments of the learned counsel
for the petitioners, learned counsel for the respondent No.1 and
perused the material available on record. I have given my
anxious consideration to the submissions advanced on both the
sides.
6. The material on record indicates that the plaintiff-
respondent No.1 filed O.S.No.80/2017 against the petitioners
and the respondent Nos.2 and 3 for the relief of specific
performance of the contract. The petitioners denied the
execution of the agreement of sale as contended in the plaint
and sought for dismissal of the suit. The records indicate that
the respondent No.1 examined 3 witnesses as PWs-1 to 3 to
prove the agreement of sale in question. Thereafter, filed an
application under Order XVI Rules 1 and 2 of the Code of Civil
Procedure, 1908, seeking to condone the delay in filing the
additional list of witnesses and also permission to examine
them. The affidavit filed in support of the application indicates
that the petitioner No.1 and her husband were in need of
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money. Hence, they offered to sell the suit schedule property
in favour of the respondent No.1 and after negotiations,
entered the agreement of sale on 11.07.2015. It is further
averred that the petitioners denied the plaint averments.
However, the petitioner No.1-defendant No.1 did not enter the
witness box. The defendant No.4 was examined as DW-2 and
got marked certain documents. It is also averred that the
petitioners falsely denied the execution of the agreement of
sale in favour of the respondent No.1. Hence, it is just and
necessary to examine the petitioner No.1-defendant No.1 as a
witness, which would throw sufficient light on the contentions
raised and to prove the case.
7. The Trial Court, considering the scope of Order XVI
Rules 1 and 2 of the CPC, allowed the application by permitting
the plaintiff to examine the witnesses cited in the additional
witness list. The Trial Court came to the conclusion that any
party to the suit can be summoned as a witness and allowed
the application as per Rule 21 of Order XVI of the CPC.
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8. To appreciate the issue involved in the petition, it
would be useful to refer the decisions of the Hon'ble Supreme
Court and different High Courts.
(a) In the case of MALLANGOWDA AND ORS. referred
supra, The Hon'ble Division Bench of the then Mysore High
Court at paragraph 7 has held as under:
"7. 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. A
scrutiny of the plaintiff's evidence throws light as to
the nature of the transaction that was entered into
between him and the defendants."
In the aforesaid decision the Hon'ble Court observed that
the practice of calling opposite party as a witness on his side
should not be countenanced as it is not in the interest of
justice.
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(b) In the case of JORTIN ANTONY AND ORS. referred
supra, the Division Bench of Kerala High Court at paragraphs
14 to 16 held as under:
"14. A few decisions on the question involved may
be considered at this stage.
In Pirgonda v. Vishwanath, AIR 1956 Bom 251 the
practice of citing the opposite side as a witness was
disapproved but the Court observed that if a party
who is in a position to give evidence does not go into
the box, the Court is free to draw an inference against
him. This disapproval was also shared by the Mysore
High Court in Mallan Gowda v. Gavisiddan Gowda, AIR
1959 Mysore 194. In Appavoo Asary v. Sornammal
Fernandez, AIR 1933 Mad 821 and in Bhupathiraju
Suryanarayanaraju v. Bantupalli Appanna, AIR 1959
Andh Pra 645 it was held that for summoning the
opposite party as a witness, resort to O. 3, Rule 1 of
the Code of Civil Procedure was not proper. But it was
suggested that where one party desires the presence
of the opposite party in Court for the purpose of
examining him as a witness the proper procedure to
adopt was the one under O. 16 of the Code. In Syed
Yasin v. Syed Shah Mohd. Hussain, AIR 1967 Mys 37 a
learned single Judge of the Mysore High Court held
that it was permissible for the Court in exercise of its
power under O. 16 of the Code to permit one party to
cite his opponent as a witness. According to his
Lordship, if the intention of the legislature was to
impose any limitations on the power of a party in
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summoning and examining the other party as a
witness, it would have specifically stated so in O. 16,
Rules 1, 19 and 20 as it had done in Rule 14 and if the
Court comes to the conclusion that the prayer of a
party to summon and examine the other party to the
suit as his witness does not amount to an abuse of
process of Court, the prayer in that behalf can be
allowed. In Awadh Kishore Singh v. Brij Bihari Singh,
AIR 1993 Pat 122 it was held that a party cannot be
debarred from examining his adversely and an order
refusing permission to the plaintiff to examine the
defendant as a witness was a jurisdictional error liable
to be corrected in exercise of jurisdiction under S. 115
of the Code of Civil Procedure. In the recent decision
of the Andhra Pradesh High Court in Kosuru
Kalinga v. Kaikamma, 2000 AIHC 786 it was held that
the application seeking summoning of a party to the
suit as a witness of the other party could not be
dismissed on the sole ground of such a course being
not known to law since that would mean the
overlooking of Rule 14 of O. 16 of the Code. It was
also indicated that if the applicant in that behalf fails
to state reasons for such summoning, such a prayer
cannot be allowed. All these decisions in our view only
indicate that it is not as if the Court has no power to
direct the examination of a party to the suit if it
considers it necessary to order his examination.
Though these decisions observe that there is nothing
in the Code which prevents one party from citing the
opposite party as his witness, it is also clear that there
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is no clear enabling provision which entitles one party
to insist on his opponent being called as a witness.
Considering the general principle recognised by the
Privy Council we are inclined to the view that in the
absence of any provision conferring such a right on a
party to the suit, it must be held that there is no right
as such in a party to the suit to summon his opponent
to give evidence. These decisions in our view fortify
generally the view expressed by Shamsuddin, J. in the
decision in Mary Francis v. Kesava (1993) 1 Ker LT 4.
15. We are thus of the view that a party to the suit
does not have a right as such to summon the opposite
party to give evidence. It is really left to the Court,
possibly after the evidence of all the witnesses made
available is completed, to consider whether the
examination of one of the parties who has not come
before Court, is necessary and in that context if found
necessary, to compel that party to give evidence in
exercise of its jurisdiction under R. 14 of O. 16 of the
Code. A plaintiff like the one in the present case,
cannot as a matter of course include the defendant in
his schedule of witnesses and as of right seek the
issuance of summons to the defendant for being
examined as a witness on his own behalf.
16. On the facts of this case, in any event, we are
not satisfied that the Court below was not justified in
refusing the prayer of the plaintiffs. The plaintiffs have
sued for specific performance of an agreement to sell.
Their right to relief is denied by the defendants in their
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written statements. It is for the plaintiffs to establish
the elements required which would entitle them to a
decree for specific performance in terms of the
relevant provisions of the Specific Relief Act. That can
be established by the plaintiffs by adducing their own
evidence relying upon any adverse inference that may
be available to them in case none of the defendants
choose to mount the box. On the materials now
available, we see no jutification in interfering with the
refusal by the Court below to summon defenadnts 1 to
8 as witnesses on behalf of the plaintiffs. On the facts
of this case, we are not satisfied that any jurisdictional
error or material irregularity in exercise of its
jurisdiction has been committed by the trial Court in
refusing to issue summons to defendants 1 to 8. even
assuming that the Court has such a power and that
power could be invoked by the plaintiffs."
The Court observed that there is no express provision
that confers right on one party to call the opponent as a
witness. The plaintiff cannot, as a matter of course include the
defendant in his list of witness.
(c) In the case of SURESH S/O SAHEBRAO TAWALE
referred supra, the learned Single Judge of the Bombay High
Court at paragraph 5 held as under:
"5. As rightly contended by the Counsel for the
petitioner the Privy Council, in the case of Mahunt
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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 witnesses box, it
should normally not be open to his opponent to
compel his presence by the issue of a witnesses
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
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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."
In the said case, the Court, placing reliance on the
decision of the Privy Council in the case of KISHORILAL Vs.
CHUNNILAL5 held that it is not necessary for the Trial Court to
entertain an application to call the opponent as a witness and
that it is always open for the Trial Court to draw adverse
inference against a party refusing to enter the witness box.
d) In the case of MINOR ARUMUGAM ALIAS
LOGESH referred supra, the High Court of Madras at paragraph
12 has held as under:
"12. In civil proceedings, there may be a case, where a
party supports the case of the plaintiff, but fails to come
as co-plaintiff. In order to avoid certain technicalities, it
is not uncommon that the supporting party is shown as
defendant(s). In that case, the party so impleaded as
defendant, cannot be termed as opposite party or
opponent as the case may be. In this view, when the
5
31 ALL 116 AT P.122 (PC)(A)
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party is desirous of obtaining summon to a party to the
suit, he can very well invoke Order 16, Rule 21 r/w Rule
1(2), stating the purpose, for which witness is proposed
to be summoned or examined. In that case, as observed
by Prabha Sridevan, J., when very good reasons are
shown, the Court should exercise its discretion in favour
of the party seeking permission and there should not be
total denial, since no such bar is contemplated, under
any of the above said provisions.
The submission of the learned Counsel for the
respondents that calling opposite party as witness
placing reliance upon the decisions in Mallangowda v.
Gavisiddangowda, AIR 1959 Mys. 194 and Leelavathi K.
v. Maheswari Sakthi Ganesan, 2002 (3) CTC 551,
cannot be accepted in all the cases, though it is well
applicable to certain cases, as discussed by me supra.
In the first decision, a Division bench of Mysore High
Court has held:
"Practice of calling the opposite party as a
witness should not be countenanced as it is not
in the interests of justice."
and in the second decision, it is said:
"It is true that if a party refuses to voluntarily
give evidence, he cannot be compelled to do so
at the instance of the opposite party, as the
Court is always at liberty to draw an inference
against the party, who refuses to give evidence
voluntarily."
In both the cases, it appears, the parties sought to
be summoned as witnesses by other side were the real
opponents and therefore, compelling such parties to
give evidence on behalf of other party, is not desirable
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judicially, which view I should also endorse. But if the
parties sought to be summoned are not the real
opponents, then there may be relaxation for very good
reasons. Thus analysing the provisions contained in
Order 16, Rule 21, C.P.C. and also the decisions brought
to my notice, I conclude that in certain cases, a party to
a suit can invoke Order 16, Rule 21, C.P.C, but not
always, as of right and it all depends upon the purpose
for which he is summoned and the stand taken by the
party in the suit. At the risk of repetition, it could be
said, if the party, who is desirous of examining another
party as witness, has no conflicting interest, whereas
the party to be summoned is supporting the other party,
who is seeking the aid of Order 16, Rule 21, C.P.C, the
Court could very well issue summons and not in the
case where there is conflicting interest or no defence at
all, as in this case."
The view of the Court is that one party can seek to
summon the opposite party as a witness but not always, as of
right and it all depends upon the purpose for which he is
summoned and the stand taken by the party in the suit.
e) This Court in the case of SYED YASIN Vs. SYED
SHAHA MOHD. HUSSAIN6 at paragraphs 12 to 15 held as
under:
6
AIR 1967 MYS 37
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12. 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 as 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."
13. It is obvious that this rule does not refer to
evidence given by a party to the suit on his 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.
14. 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
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witnesses shall apply to him as far as
applicable."
15. 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. 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 opinion of the Court is that one party to the suit can
examine the other party as his witness or require him to
produce the document, as there is no prohibition in the Code
with regard to one party being examined by the other. On the
contrary, Rule 21 enables one party to the suit to require the
other party to give evidence.
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f) The Hon'ble Supreme Court in the case of
MOHAMMAD ABDUL WAHID Vs. NILOUFER AND ORS.7
held at paragraphs 13 to 22 as under:
"13. A party to the suit is one on whose behalf or
against whom a proceeding in a court has been filed. A
witness is a person, either on behalf of the plaintiff or the
defendant, who appears before a court to substantiate a
statement or claim made by either side. Neither the
phrase "party to the suit" nor "witness" is defined under
CPC or any other statute on the books. However on this
issue, a Constitution Bench of this Court in State of
Bombay v. Kathi Kalu Oghad [State of Bombay v. Kathi
Kalu Oghad, 1961 SCC OnLine SC 74 : AIR 1961 SC
1808] held as under : (AIR p. 1814, para 11)
"11. ... "To be a witness" means imparting
knowledge in respect of relevant facts, by
means of oral statements or statements in
writing, by a person who has personal
knowledge of the facts to be communicated to
a court or to a person holding an enquiry or
investigation. A person is said "to be a
witness" to a certain state of facts which has
to be determined by a court or authority
authorised to come to a decision, by testifying
to what he has seen, or something he has
heard which is capable of being heard and is
not hit by the rule excluding hearsay, or giving
his opinion, as an expert, in respect of matters
in controversy."
A "witness" as defined by P. Ramanatha
Aiyar's Advanced Law Lexicon is as under:
7
(2024) 2 SCC 144
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"One who sees, knows, or vouches for
something (a witness to the accident). (1) in
person, (2) by oral or written deposition, or
(3) by affidavit (the prosecution called its next
witness)."
Black's Law Dictionary, 7th Edn., 1999:
"The term "witness" [Corpus Juris
Secundum : A Contemporary Statement of
American Law as Derived from Reported Cases
and Legislation. West, 1994.] , in its strict
legal sense, means one who gives evidence in
a cause before a Court; and in its general
sense includes all persons from whose lips
testimony is extracted to be used in any
judicial proceeding, and so includes deponents
and affiants as well as persons delivering oral
testimony before a Court or jury."
14. The High Court in its considered view stated
that a party cannot be equated to a witness. It is
recorded in the impugned judgment [Mohd. Abdul
Wahid v. Nilofer, 2021 SCC OnLine Bom 170] that various
provisions of CPC lend credence to the difference between
a party to the suit and a witness in a suit.
15. In advancing its arguments before this Court,
the respondents submitted that the phraseology of the
Code, employing "the plaintiff's witnesses" and "the
defendant's witnesses" suggests a clear difference
between the parties to the suit and the witness produced
at their instance -- and would submit that the literal rule
of interpretation, in the absence of any ambiguity, would
be what is required to be followed.
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16. This understanding, in our view, implies that the
law places a party to a suit and a witness to a suit in
watertight compartments and that a plaintiff/defendant,
even when testifying to their own cause are not witnesses
despite being in the witness box and being subject to the
same practices and procedures as any other witness
before the court on their behest.
17. This differentiation appears to be questionable.
Reference may be made to Section 120 of the Evidence
Act, 1872 which states that parties to a civil suit shall be
competent witnesses. It reads:
"120. Parties to civil suit, and their
wives or husbands, husband or wife of
person under criminal trial.--In all civil
proceedings the parties to the suit, and the
husband or wife of any party to the suit, shall
be competent witnesses. In criminal
proceedings against any person, the husband
or wife of such person, respectively, shall be a
competent witness."
The word used is witnesses--which implies that a
witness otherwise produced as also the defendant or the
plaintiff themselves, will stand on the same footing when
entering evidence for the consideration of the court. The
Code itself speaks to the effect that when a party to a suit
is to testify in court. Regard may be had to Order 14 Rule
21 which reads as under:
"21. Rules as to witnesses to apply to
parties summoned.--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."
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18. Further, Order 16 Rule 14, as extracted hereunder
is taken note of.
"14. Court may of its own accord
summon as witnesses strangers to suit.--
Subject to the provisions of this Code as to
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, including 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, on a day to be appointed, and
may examine him as a witness or require him
to produce such document."
(emphasis supplied)
In respect of the above provision, it is essential to notice
that prior to the amendment to the Code in the year
1976, this section was applicable to "any person other
than a party to suit" [Code of Civil Procedure
(Amendment) Act, 1976] the express exclusion has been
amended, to turn it into an explicit inclusion within the
term "witness".
19. We may also refer to Order 18 Rule 3-A which
states that when a party to a suit wishes to appear as a
witness, he is to do so prior to other witnesses. The
section reads:
"3-A. Party to appear before other
witnesses.--Where a party himself wishes to
appear as a witness, he shall so appear before
any other witness on his behalf has been
examined, unless the Court, for reasons to be
recorded, permits him to appear as his own
witness at a later stage."
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(emphasis supplied)
20. The relevant principles as culled out by B.P. Sinha,
C.J. (majority opinion) in the above referenced decision of
the Constitution Bench in Kathi Kalu Oghad case [State of
Bombay v. Kathi Kalu Oghad, 1961 SCC OnLine SC 74 :
AIR 1961 SC 1808] may also be instructive in gaining an
understanding of the ambit of a witness. In para 16, it
was observed : (AIR pp. 1816-817)
"16. ... (3) "To be a witness" is not
equivalent to "furnishing evidence" in its
widest significance; that is to say, as including
not merely making of oral or written
statements but also production of documents
or giving materials which may be relevant at a
trial to determine the guilt or innocence of the
accused.
(4) Giving thumb impressions or
impressions of foot or palm or fingers or
specimen writings or showings parts of the
body by way of identification are not included
in the expression "to be a witness".
(5) "To be a witness" means imparting
knowledge in respect of relevant facts by an
oral statement or a statement in writing, made
or given in court or otherwise.
(6) "To be a witness" in its ordinary
grammatical sense means giving oral
testimony in court. Case law has gone beyond
this strict literal interpretation of the
expression which may now bear a wider
meaning, namely, bearing testimony in court
or out of court by a person accused of an
offence, orally or in writing."
21. It is clear from the above discussion, that
witnesses and parties to a suit, for the purposes of
adducing evidence, either documentary or oral are on the
same footing. The discussion as aforesaid, emphasises
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the lack of differentiation between a party to suit acting
as a witness and a witness simpliciter in the suit
proceedings. The presence of these provisions also begs
the question that if the legislature had the intent to
differentiate between a party to a suit as a witness, and a
witness simpliciter, it would have done so, explicitly. On
this we may only highlight what the High Court [Mohd.
Abdul Wahid v. Nilofer, 2021 SCC OnLine Bom 170] had
to observe : (Mohd. Abdul Wahid case [Mohd. Abdul
Wahid v. Nilofer, 2021 SCC OnLine Bom 170] , SCC
OnLine Bom para 27).
"27. Merely because Order 16 Rule 21
provides that the Rules as to witnesses are to
apply to parties summoned, that would not
mean that the party is being equated with a
witness. The Rule only applies for regulating
the conduct of a party when he enters the
witness box in his own cause, otherwise in
absence of such a provision, there would be a
void and the conduct of a party entering the
witness box in his own cause, would go
unregulated. This is further substantiated from
the use of the expression "insofar as they are
applicable" occurring in Rule 21 of Order 16."
22. A simple brushing off by saying that "merely
because" one provision mentions them to be performing
similar functions, they are not to be equated, cannot be
allowed. No proper reason is forthcoming from a perusal
of the extracted portion or otherwise for the
differentiation which is between a witness in the witness
box and the conduct of a party appearing as a witness in
the witness box. In our considered view, this distinction
does not rest on firm ground. This is so because the
function performed by either a witness or a party to a suit
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when in the witness box is the same. The phrase "so far
as it is applicable" in Order 16 Rule 21 does not suggest a
difference in the function performed."
The Hon'ble Supreme Court, in the aforesaid decision
after considering the scope of Order XVI with reference to
different Rules under the said Order, held that the functions
performed by either a witness or a party to the suit when in the
witness box, is the same. The phrase "sofar as it is applicable"
in Order XVI Rule 21 does not suggest a difference in the
function performed. In other words, the Hon'ble Supreme
Court held that there is no difference between a party to a suit
as a witness and a witness simplicitor.
9. The contention of the learned counsel for the
petitioner No.1-defendant No.1 that the plaintiff-respondent
No.1 cannot call her as a witness in the additional list of
witnesses furnished by the plaintiff-respondent No.1, has no
merit in view of the enunciation of law laid down by the Hon'ble
Supreme Court. In the case on hand, the contention of the
plaintiff-respondent No.1 is that the petitioner No.1-defendant
No.1 and her husband have executed registered agreement of
sale and the petitioner No.1-defendant No.1 is conveniently
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trying to evade entering the witness box, which has compelled
the plaintiff-respondent No.1 to file an application to summon
petitioner No.1-defendant No.1 as a witness. No doubt, the
Trial Court on the basis of evidence on record, can draw
adverse inference with regard to the conduct of the petitioner
No.1-defendant No.1, if she fails to enter the witness box.
Order XVI Rule 1 of the CPC recognizes the right of a party to
the suit to file a list of witnesses whom they propose to call
either to give evidence or to produce document. Rule 21 says
that where any party to the suit is required by any other
thereto to give evidence, or to produce document, the
provisions as to the witness shall apply to him so far as
applicable. The Court, while considering the application for
summoning of the witness is required to consider the purpose
for which the witness is proposed to be summoned. Rule 1(2)
of the aforesaid Order confers discretion on the Trial Court to
summon or not to summon the witness after considering the
purpose for which the witness is proposed to be summoned.
The Trial Court is required to exercise the discretion judiciously,
more particularly when a party to the suit seeks to summon
his/her opponent as a witness. I am of the considered view
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that the plaintiff can seek to summon the defendant as his
witness but the same cannot be allowed as a matter of right
and the Trial Court is required to consider the purpose for
which, the witness is proposed to be summoned and thereafter,
consider the application by assigning proper reasons.
10. The Court shall keep in mind that if the parties
sought to be summoned as a witness by the other side were
the real opponents and therefore, compelling such parties to
give evidence on behalf of the other party, is not desirable
judiciously. Even in such cases, the option is available to the
Court to either draw adverse inference against such a party or
if the Court comes to the conclusion that the opponent's
evidence is necessary to decide the issue involved in the case,
then to summon them exercising its power under Order XVI
Rule 1(2) of the CPC. Under such circumstances, the Court can
exercise its discretion in favour of the party seeking to summon
the opponent as a witness. In the case on hand, the Trial
Court, on judicious application of mind has come to the
conclusion that the opponent's witness is necessary and
allowed the application. The decision arrived by the Trial Court
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is by exercising its discretion under Order XVI Rule 1. This
Court, while exercising its power under Article 227 of the
Constitution of India, cannot add its views to the views of the
Trial Court.
11. For the aforementioned reasons, I proceed to pass
the following:
ORDER
The writ petition is devoid of merits and the same is
accordingly rejected.
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
RV
