Ashim Kumar Banerjee, J.@mdashThe applicant/plaintiff filed an eviction proceeding as against the respondent/opposite party. She wanted to examine the respondent/opposite party as her witness. Such prayer was rejected by the learned Judge of the Court below. Hence, this application for revision. Mr. K.M.B. Jayapal, learned counsel appearing in support of the application relied on Order 16 Rule 21 of the CPC which is quoted below:
"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."
2. He also cited two decisions:
(i)
(ii)
3. In the case of Periasamy (supra) learned Single Judge of the Madras High Court observed that there was no total bar in issuing a summon to another party to a suit to give evidence as witness. His Lordship was of the opinion that Order 16 Rule 21 was inserted in the Code so that in a particular situation a party would be entitled to call another party to the suit to give evidence. In the case of Dattaji (supra) the learned Single Judge of the Madhya Pradesh High Court was of the view that a party and a witness in the matter of giving evidence should not be differentiated
4. The proposition of law so decided by the decision cited supra is in consonance with Order 16 Rule 21. I fully agree with the submission of Mr. Jayapal to the extent that there was no bar in calling upon the opposite party to adduce evidence on behalf of a party on whose instance summon is issued. I, however, wish to view the present controversy from a different angle
5. The applicant initiated eviction proceeding as against the opposite party. Being a civil proceeding he is bound to discharge his primary onus so that burden of proof can shift to the other party. The applicant of her own would have to establish that there was a legal relationship between the two parties being landlord and tenant and there were causes for which she was entitled to eviction of the opposite party
6. Mr. Jayapal contended that there had been an agreement by and between the applicant and the respondent/opposite party. He wanted to prove the said agreement through the defendant. The agreement is appearing at page 17 of the application.
7. It is the obligation on the part of the application to prove that the said agreement was entered into by and between the parties and once such primary onus is discharged it is for the defendant/opposite party to rebut the same by adducing, evidence. In case she does not come up to adduce evidence adverse inference may be drawn by the Court below which would entitle the applicant to obtain a decree for eviction. It would not be fair on the part of the Court to compel the defendant to adduce evidence to support the case of the plaintiff.
8. The problem can be viewed from another angle. In case I permit the plaintiff to call the defendant as her witness the plaintiff would not he entitled to cross-examine the defendant as it is not permissible for a party to cross-examine his or her own witness, so long the witness is not declared hostile by the party by whom he has been called.
9. In my view, the Court below is right in rejecting the application.
10. Revisional application is thus rejected. There is, however, no order as to costs.
