J. Chelameswar, J.@mdashThe petitioner No. 1 is the second defendant in Original Suit No. 1466 of 1993 on the file of the learned Principal Junior Civil Judge, Karimnagar. The second petitioner is the first defendant therein. The first respondent herein is the plaintiff and the 2nd respondent is the seventh defendant.
2. It is claimed by the petitioners that they have filed a joint written statement along with the defendants 6 to 8 in the suit contesting the claim of the plaintiff. The petitioners now complain that the plaintiff won over the second respondent. It appears from the record that on the date fixed for the evidence of the plaintiff i.e., 23-03-1999, the plaintiff put the seventh defendant (2nd respondent herein) in the witness box as his witness and examined him as P.W. 6. Admittedly, the Advocate appearing for the petitioners herein was not present in the Court on that day.
3. In the above-mentioned circumstances, the petitioners herein filed I.A.No. 526 of 1999 on 30-03-1999 praying the trial Court to eschew the evidence of P.W. 6 (seventh defendant in the suit). The trial Court by its order dated 26-4-1999 dismissed the said petition. Aggrieved by the said order, the present revision is filed.
4. The first respondent filed a counter-affidavit. From the counter-affidavit it appears that the seventh defendant and his mother who is the fifth respondent herein filed I.A.No. 586 of 1999 in the above-mentioned suit to permit them to determine the Vakalat filed by Sri G. Narayan Reddy, Advocate on the ground that they never appointed the said Sri G. Narayan Reddy, Advocate nor did they give any instructions to Sri G. Narayan Reddy to file a Written Statement. They also averred in the said petition that the second petitioner herein played fraud on them and got the Vakalat and written statement filed through the said Sri G. Narayan Reddy, Advocate and that they never pleaded as in the written statement said to have been filed on their behalf.
5. The learned Counsel for the petitioner argued that the practice of calling the defendant as a witness on behalf of the plaintiff was deprecated by the Privy Council as long back as in Shatrugan Das v. Sham Das AIR 1938 P.C. 59. Therefore, the trial Court ought not to have dismissed the impugned I.A. In the said case, the plaintiff refrained from giving evidence on his own behalf and called the first defendant as a witness for the plaintiff.
"...........with the usual result that important features of his case are denied by his own witness. Their Lordships have on previous occasions condemned this practice and approve of the course taken by the High Court in treating the plaintiff as a person who put defendant 1 forward as a witness of truth......"
6. On the other hand, the learned Counsel for the respondent placed reliance upon a decision reported in
"(4) It is true that the Privy Council has in other decisions also condemned in emphatic terms, the practice of a party to the suit not entering the witness-box with the object of forcing the other side to examine him as his own witness, to enable his lawyer to cross-examine him. It has been stated that the practice, apart from being unprofessional makes it very difficult for the Court to find out the truth. But Shri Jagirdar is right in contending that the Privy Council has not stated that the law does not permit the examination of one party by the other party and that in no circumstance can one party examine the other party as his witness.
After considering various other judgments and the relevant provisions of the Code of Civil Procedure, the learned Judge came to a conclusion:
"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............."
and further it was held:
"...............Though the petitioner has a right to summon the other party to the suit and examine him as a witness, it was possible for the Court, if it came to the conclusion that the said application of the petitioner was an abuse of the process of the Court, acting under its inherent powers u/s 151 of the Code of Civil Procedure, to disallow the application. In the instant case, there is no such finding by the Court below..............."
7. The learned Counsel for the respondent also relied upon another decision reported in Awadh Kishore Singh v. Brij Bihari Singh AIR 1993 Pat 123. A Division Bench of the Patna High Court also came to a conclusion:
"............A plaintiff can examine any witness he so likes - the witness may be a stranger, may be a man of his own party or party himself or may be a defendant or his men. Therefore, if a plaintiff wants to examine a defendant as a witness on his behalf, he cannot be precluded from examining him on the ground that the said defendant has neither appeared in the suit nor upon appearance filed written statement nor prayer for filing written statement has been rejected.............."
8. From the above decisions, it is clear that there is no universal rule that the party to a suit cannot summon the opponent or one of the opponents as a witness on his behalf. The only caution to be taken by the Court is to see that such an attempt is not an abuse of the process of the Court. To reach such a conclusion necessarily the Court must apply its mind to the facts and the circumstances of each case.
9. In the present case, the learned Counsel for the petitioners submitted that in view of the finding of the learned trial Judge in the abovementioned I.A.No. 586 of 1999, while accepting the application of the seventh defendant to determine the Vakalath of one Sri G. Narayan Reddy, Advocate made certain observations about the bona fides of the application; the learned Counsel, therefore, submitted that in view of those observations, the trial Court ought to have in the present I.A., granted the prayer of the petitioners.
10. I am unable to accept the submission of the learned Counsel for the petitioners, for the reason, first of all, that it was beyond the scope of the trial Court to go into the bona fides of an application under Order 3 Rule 4 of the CPC as the relationship between the ''Advocate'' and the ''Client'' is purely contractual; the motive behind terminating the contract is irrelevant. Therefore", in my view, the trial Court went beyond the scope of the permissible enquiry under Order 3 Rule 4 of the Code of Civil Procedure, by passing the order. Apart from that when the seventh defendant pleaded that he never engaged Advocate, in my view, there was no material on record to reach the conclusion that the application is not a bona fide one.
11. For all the above-mentioned reasons, I see no merits in the Civil Revision Petition; the same is therefore dismissed.
