1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATEJURISDICTION WRIT PETITION NO. 6982 OF 2011 Ramkrishna Nana Galave & Others ...Petitioners Versus Krishna Dyanu Galave & Others ...Respondents Mr.Umesh Mankapaure for the Petitioners CORAM:- R.Y.GANOO, J. DATED:- 26th SEPTEMBER, 2011. P.C. 1. The respondent nos.1 and 2 are the plaintiffs before the learned Civil Judge, Junior Division at Atpadi, District Sangli, in Regular Civil Suit No.25 of 2006. It is seen that original defendant no.2 Bhiva has not filed written statement. The suit is pending at the stage of recording of evidence. Respondent nos.1 and 2 filed an application for examination of this Bhiva by way of evidence affidavit at Exhibit 54. The petitioners herein who are the original defendant nos. 1 to 3 filed application below Exhibit 55 and prayed that the said evidence affidavit at Exhibit 54 be not taken on record and it be struck off. This application has been rejected by the learned Civil Judge, Junior 2 Division, Atpadi, by order dated 24th June, 2011. 2. I have heard learned Advocate Mr. Mankapure in support of this petition. It is seen that the original defendant no.2 Bhiva has not filed written statement. This will clearly go to show that he is not inclined to oppose the reliefs sought by the respondent nos.1 and 2. It appears that the respondent nos.1 and 2 were of the view that said Bhiva would support them and that is how they have filed evidence affidavit of Bhiva at Exhibit 54. The present petitioners opposed the said application by contending that said Bhiva is defendant in the suit and therefore he cannot be examined by the plaintiffs. This contention of the present petitioners was rejected by impugned order dated 24th July, 2011. Learned Advocate for the petitioners relied upon the judgment in the Case of Pirgonda Hongonda Vs. Vishwanath Ganesh & Others reported in AIR 1956 Bombay 251. I have perused the said judgment. The position in law has changed after amendment of Civil Procedure Code in the year 1976 and provisions regarding calling the defendant as witness by the plaintiff has been duly amended and the provisions of order 16 Rule 14 are as follows 3 “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” A perusal of the provisions of Order 16 Rule 14 and with specific emphasis to the words “examine any person, including the party to the suit” clearly permits the plaintiff to call the defendant.” The aforesaid words came to be substituted by the Code of Civil Procedure (Amended Act) of 1976 for the words “to examine any person other than a party to the suit”. This change brought about by the amendment Act of 1976 would clearly go to show that if the person who is a party to the suit is called by another party to the suit as witness, such a thing is permissible. 4 3. Learned Advocate for the petitioner relied upon the text of the Civil Manual and in particular (ii) of Clause 229. The relevant clause is as under “ the practice of calling the opponent in the case as one’s own witness has been been condemned by the Privy Council”. This provision of the Civil Manual and the reading of the latest provision of Order 16 Rule 14, if interpreted in the proper perspective the provisions presently appearing in Order 16 Rule 14 will prevail, and to that extent the action initiated by the plaintiff cannot be treated as patently illegal. The very fact that the said Bhiva has not filed written statement clearly indicates that he would like to support the original defendants-respondent nos.1 and 2. Needless to mention that the present petitioners can exhaustively cross examine said Bhiva so as to destroy to effect of examination in chief rendered by said Bhiva. 4. For the reasons mentioned aforesaid, there is no need to interfere with the matter. Petition is dismissed at the stage of admission. There shall be no order as to costs. (R.Y.GANOO, J.)