IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4899 of 2007 Date of Decision : December 17, 2008 Karnail Singh .....Petitioner Versus Karamjit Singh and others .....Respondents CORAM : HON’BLE MR JUSTICE T.P.S. MANN Present : Mr. M.K. Singla, Advocate for the petitioner. Mr. Jatinder Singla, Advocate for respondent No. 1. T.P.S. MANN, J. Application filed by Karamjit Singh-defendant/respondent No. 1 for permission to lead secondary evidence was allowed by the trial Court on 26.7.2007. The said order has been challenged by the plaintiff by filing the present revision under Article 227 of the Constitution of India. During the trial of the suit, it surfaced that sale deeds No. 784 dated 27.3.2002 and 257 dated 3.6.2002 were executed by Bhola and Chota-defendants in favour of Amrik Singh, Jagpal Singh, Gurdeep Singh and Ruldu Singh-defendants. When Karamjit Singh-defendant filed an application for production of the original sale deeds, aforementioned Civil Revision No. 4899 of 2007 -2- Amrik Singh and other defendants refused to produce the same. However, certified copy of the sale deeds were already on the file and marked as Exs. D2 and D3. Accordingly, Karamjit Singh-defendant/respondent No. 1 filed an application to lead secondary evidence so as to prove the thumb-impressions of Mohinder Singh-defendant/respondent No. 19 as witness of sale deed No. 784 and signatures of Karnail Singh- plaintiff/petitioner on sale deed No. 257. The prayer made on behalf of Karamjit Singh-defendant/ respondent No. 1 was opposed by the plaintiff-petitioner as well as by Amrik Singh and other defendants by stating that the sale deeds in question were null and void and a similar application filed by Karamjit Singh-defendant stood dismissed by the trial Court on 10.2.2007. A perusal of order dated 10.2.2007 passed by the trial Court would show that when Karamjit Singh-defendant/respondent No. 1 prayed for a direction to Amrik Singh and other defendants to produce the sale deeds, they declined to do so on the ground that they were not traceable. Therefore, the requirement of showing the non-availability of the original documents stood complied with and defendant-respondent No. 1 could ask for leading secondary evidence in respect of the sale deeds, more so, when those were registered documents. In fact, vide order dated 10.2.2007, the trial Court disposed of the application of defendant/respondent No. 1 by giving him an option to produce certified copies of the aforementioned sale deeds from the office of Sub Registrar. Civil Revision No. 4899 of 2007 -3- Further, as one of the sale deed was witnessed by Mohinder Singh- defendant and the other by the plaintiff, defendant/respondent No. 1 was justified in proving the thumb-impression of Mohinder Singh-defendant on sale deed No. 784 and signatures of Karnail Singh-plaintiff on sale deed No. 257 by calling them to the witness box. Learned counsel for the petitioner has submitted that the defendant could not be allowed to call the plaintiff in the witness box. In this regard he has relied on Mallangowda and others v. Gavisiddangowda and another, AIR 1959 Mysore 194, However, a perusal of the said judgment would show that it was not held as a principle of law that a party to the suit could not call the opposite party as a witness. It was only held that such a practice should not be countenanced as it was not in the interest of justice. On the other hand, in the present case, Karnail Singh-plaintiff was a signatory as a witness of sale deed No. 257. This sale deed was duly registered with Sub Registrar. In such a situation, the defendant could plead for appearance of the plaintiff in the witness box for confronting him with his signatures on the said sale deed. In M.C. Ananda v. M.C.Chikkanna, 2002(3) RCR (Civil) 162, the Karnataka High Court, while referring to Order XVI Rule 21 of the Code of Civil Procedure held that the plaintiff could summon the defendant as a witness and require him to produce the documents. However, it was held that the discretionary power to summon has to be Civil Revision No. 4899 of 2007 -4- exercised in judicial manner and it was open to the Court to refuse to permit the summoning by a party of his opponent, as his own witness in support of his own case. However, there was no total bar on not allowing the summoning/calling the opposite party as a witness. The relevant observations are as under :- “So, no doubt, this rule indicates that a party to the suit may be required and a party may be entitled to require any other party to the suit to give evidence, or to produce the documents and the Court below appears to have proceeded on mistaken notion that a party to the suit is not entitled subject to the power and permission of the Court to summon or to examine the opposite party. The expression 'any other party thereto' is indicative of the party to the suit or to say party other than summoning the party which may include the opposite party. In other words, the plaintiff may summon the defendant as a witness and require him to produce the documents. Similarly the defendant may summon the plaintiff, as held by this Court in Syed Yasin v. Syed Shaha Mohd. Hussain, AIR 1967 Mys. 788, but it is open to the Court, if in its opinion, summoning of the other party or opponent is likely to result in the abuse of the process of the Court, it may refuse as well. It is also no doubt true that ordinarily the practice of calling the opposite party has been held and considered to be unhealthy practice, as held by their Lordships of the Privy Council in Mahant Shatrugan Das v. Bawa Sham Das, AIR 1938 PC Civil Revision No. 4899 of 2007 -5- 59 and by the Division Bench of this Court in Mallangowda v. Gavisiddangowda, AIR 1959 Mys. 194. The Division Bench in paragraph 7 of the said report observed as under :- “We have in unmistakable terms stated in this Court previously that this practice of calling the opposite party as a witness on his side should not be countenanced as it is not in the interests of justice.” The discretionary power to summon has to be exercised in a judicial manner. When this practice has been condemned as abortive and the Privy Council in the case of Khushal Singh v. Secretary of State of India in Council, ILR 1909 (31) All 659 has held it as objectionable and their Lordships laid it down that it ought never to be permitted as it is not in the interest of justice. It is open to Court to refuse to permit the summoning by a party of his opponent, as his own witness in support of his own case. In the present case, the Court below has rejected the application simply taking erroneous view that the plaintiffs are not entitled to summon defendant No. 3 as witness, and illegally refused to exercise the jurisdiction. It could have rejected the application on any ground or ground to the effect that such practice has been condemned as not in keeping pace with the principles laid down Civil Revision No. 4899 of 2007 -6- by the Privy Council and the Division Bench. The trial Court has not applied its mind to all this aspect. In this view of the matter, it appears just and proper to allow the revision petition and to set aside the order of the trial Court dated 9.3.1998 and to direct the Court below to consider the application afresh according to the decisions and the facts and circumstances of the case and to pass suitable orders keeping in view the principles of law laid down by the Privy Council and the decisions of this Court in this regard as well.” In view of the above, it is held that the trial Court was well within its right to exercise the discretionary power in allowing the application of Karamjit Singh-defendant/respondent No. 1 to lead secondary evidence in respect of sales deed No. 784 dated 27.3.2002 and 257 dated 3.6.2002 by calling Mohinder Singh-defendant and Karnail Singh-plaintiff in the witness box for proving their thumb-impressions/ signatures on the said sale deeds. The impugned order does not suffer from any infirmity or illegality. The revision is, accordingly, dismissed. ( T.P.S. MANN ) December 17, 2008 JUDGE satish