1 WP 3903/10 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3903 OF 2010 Sidney Francis Gomes & Anr. .. Petitioners V/s Mrs. Tressa Samuel & Ors. .. Respondents Mr. I.S. Meckwan i/b Mr. R.K. Thakkar for the petitioners. Respondent no.1 in person. CORAM : D.G. KARNIK, J. DATE : 13TH JULY 2010 P.C. : 1. Heard learned counsel for the petitioners and the respondent who appears in person. 2. By consent, the petition is heard finally at the stage of admission itself. 3. The petitioners are the original plaintiffs. They filed a suit, bearing S.C. Suit No.3584 of 1995, against the respondent and two others for an injunction restraining them from disturbing their possession of the suit property. The plaintiff no.1 examined himself 2 WP 3903/10 as a witness for the plaintiffs and four other witnesses. The present respondent (defendant no.3) examined herself as a witness on her own behalf and after her cross examination was over, she made an application for examining the plaintiff no.2 in the suit as her witness. By an order dated 15 April 2010, the learned Judge granted the said application and directed issuance of witness summons to the plaintiff no.2 as her witness. That order is impugned in the present petition. 4. The respondent appearing in person submitted that the writ petition is directed against an interlocutory order directing issuance of a summons and, therefore, this Court should not entertain the writ petition in exercise of writ jurisdiction under Article 227 of the Constitution of India. Per contra, learned counsel for the petitioners submitted that the order is clearly illegal and contrary to the decision of the Privy Council in Kishorilal v. Chunni Lal, 31 ILR 116 as also a decision of this Court in Pirgonda Hongonda v. Vishwanath Ganesh, AIR 1956 Bombay 251. He further submitted that the practice of calling opposite party as a witness has been deprecated by the Privy Council as well as by this Court and, therefore, the order requires interference. 3 WP 3903/10 5. More than a century ago, the Privy Council in its decision in Kishorilal (supra), noticed the then existing practice in India, a weak and somewhat paltry kind of advocacy, for each litigant to cause his opponent to be summoned as a witness. Deprecating the practice, the Privy Council observed: “It is a practice which Their Lordships cannot help thinking all judicial tribunals ought to set themselves to render as abortive as it is objectionable. It ought never to be permitted in the result to embarrass judicial investigation as it has done in this instance.” This Court while framing Civil Manual for guidance to the subordinate judges, has taken note of the view of Privy Council by providing Rule 229(ii) of the Manual which reads thus: “229 (i) .... (ii) The practice of calling the opponent in the case as one’s own witness has been condemned by the Privy Council.” 4 WP 3903/10 In Pirgonda Hongonda vs. Vishwanath Gonda (supra), Gajendragadkar, J. (as His Lordship then was) following the decision of the Supreme Court in the case of Kishorilal (supra) has observed: “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 a 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 should normally not be open to his opponent to compel his presence by the issue of a witness summons.” In the weight of these authorities, it was not open to the learned Judge of the City Civil Court to call the plaintiff no.2 as a witness on behalf of the defendant no.3. 4. It may be noted that respondent no.2 had previously made an unsuccessful attempt to summon plaintiff no.1 as her own witness by making an application at Exhibit-215. By an order dated 26 5 WP 3903/10 February 2010, that application was rejected. It is true that the application was rejected on the ground that the plaintiff no.1 had already examined himself as a witness and was cross examined by defendant no.3 and, therefore, there was no occasion for the Court to summon plaintiff no.1 again as a witness for defendant no.3. Undoubtedly, if a person, whether party to the suit or not, has been examined as a witness of one of the parties to the suit, all other parties in the suit have an opportunity to cross examine him and, there would be no occasion to summon him again on behalf of some other party. Any attempt to fill up a lacuna in the examination in chief or cross examination of such person cannot be filled up by summoning the same person again as a witness on behalf of some other party. Respondent no.1 (defendant no.3) appearing in person submitted that some lacunas were left by her advocate while cross examining plaintiff no.1 and, therefore, she wanted to summon plaintiff no.1 as a witness and since that application was rejected, she wanted to examine plaintiff no.2 to expose the plaintiffs’ case. This is nothing but an attempt to fill up the lacunas left by defendant no.3 in the cross examination of plaintiff no.1. This could not have been permitted and allowed to be done by the trial court under any circumstances and especially 6 WP 3903/10 in the light of the decision of the Privy Council in Kishorilal’s case (supra). 5. Before I part, I must also refer to another decision of the Privy Council in Lal Kumar v. Chiranji Lal, 1910 (Vol. 12) Bom. L.R. 244, though not referred to by the parties, wherein the Privy Council has in strongest words condemned the practice of calling by a party another party to the suit as witness to be a vicious practice unworthy of reputable system of advocacy. In yet another case, viz. Sardar Gurbaksh Singh v. Gurdial Singh, 1927 (Vol. 29) Bom. L.R. 1392, while condemning the practice of calling opposite party as its own witness, the Privy Council held: “It is the bounden duty of a party, personally knowing the whole circumstances of the case, to give evidence on his own behalf and to submit to cross examination. His non- appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case.” As held by the Privy Council in the case of Sardar Gurbaksh Singh (supra), it would be open to the respondent no.1 (defendant no.3) to point out to the Court if the facts disclose that the plaintiff no.2 7 WP 3903/10 has personal knowledge of certain things, which are not in the knowledge of plaintiff no.1 who has been examined as a witness, and has willfully abstained to examine himself as a witness, to draw an appropriate inference for his failure to do so. While drawing an appropriate inference, the Court would bear in mind the the fact that the plaintiff no.1 has been examined as a witness and the principle that it is not necessary to examine multiple witness to depose to the same facts. However, by no means the defendant no.3 can compel the plaintiff no.2 to appear as her witness. The impugned order is therefore wholly illegal and cannot be sustained in law and, though interlocutory, needs interference. 7. For these reasons, the writ petition is allowed and the impugned order is quashed and set aside. (D.G. KARNIK, J.)