1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.5140 of 2010 Dattatraya Krishna Bhoir ... Petitioner versus Shri Gajanan Vitthal Mayekar ... Respondent ... Mr.S.V.Palsuledesai for the petitioner. CORAM : D.G. KARNIK, J. DATED : 5th July 2010 P.C. 1. Writ Petition is directed against the order dated 15 June 2010 passed by the Joint Civil Judge, Jr.Division, Kalyan rejecting the plaintiff’s application to call the defendant for the purpose of cross examination. 2. The defendant did not examine himself nor filed his affidavit in lieu of examination in chief. He filed filed an affidavit in lieu of examination in chief of his Power of Attorney holder. Plaintiff made an application that defendant should attend the Court and offer himself for cross-examination. That application is rejected. 3. Unless the defendant examines himself (either in person or by 2 filing affidavit in lieu of examination in chief), he cannot be called for cross examination. It is true that party must examine himself and a power of attorney as witness. The Supreme Court in Janki Vashdeo Bhojwani & Anr Vs. Indusind Bank Ltd. & ors (Civil Appeal No.6790 of 2003 decided on 6 December 2004) has held that a Power of Attorney cannot give the evidence on behalf of a party except in the circumstances mentioned in the said decision. It is for the court to consider whether the evidence adduced by Power of Attorney can be taken into consideration in the light of the decision of the Supreme Court in the case of Janki Bhojwani (supra), but the defendant cannot be compelled to enter the witness box and offer himself for cross examination if he does not examine himself. 4. In the case of Sardar Gurbaksh Singh Vs. Gurdial Singh, 29 Bombay Law Reporter, 1392, the Privy Council has held that it is bounden duty of a party, personally knowing the whole circumstances of the case to give evidence on his own behalf. His non-appearance as a witness would be the strongest possible circumstance discredit the truth of his case. In the light of the said decision, it is open to the trial court to draw an appropriate adverse inference in the event the defendant does not examine himself but if the defendant chooses not to examine himself as a witness and/or not file an affidavit in lieu of examination in chief, the plaintiff cannot compel him to enter the witness box merely for the purpose of cross examination. With this observation, the writ petition is rejected. (D.G. KARNIK,J.)