: 1 : W.P.NO.3838/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3838 OF 2009 Bharat s/o Sukhdeo Upare & anr. ... PETITIONERS VERSUS Ramling s/o Vithoba Upare & ors. ... RESPONDENTS ..... Shri B.S. Kudale, Advocate for the petitioners ..... CORAM : A.A. SAYED, J. DATE : 15th December, 2010 PER COURT: 1. Heard learned counsel for the petitioners. None appears on behalf of the respondents though served. 2. By the above petition, the petitioners impugn the order dated 13.3.2009, passed by the Jt. Civil Judge, Junior Division, Bhoom, whereby the two applications filed by the petitioners, being Exh. 107 and Exh. 109 in the suit came to be rejected. 3. The suit is filed by the petitioners/ original plaintiffs for partition. The application Exh. 109 was in respect of calling respondent No.1/ original defendant No.1 as a witness and application Exh. 107 was in respect of confronting the said respondent No.1 with some documents on record. : 2 : W.P.NO.3838/2009 4. The learned counsel for the petitioners submitted that, the respondent No.1 has chosen not to enter the witness box and give evidence. However, the petitioners would require the respondent No.1 to answer certain questions put to him and to confront him with the documents relating to the partition. After the evidence of plaintiffs, the suit was kept for arguments inasmuch as the respondent No.1 did not step into the witness box. The petitioners desired to call the respondent No.1 as witness and, therefore, the aforesaid applications were made, which was rejected by the impugned common order. 5. The learned counsel for the petitioners relied upon the case of M.C. Ananda and another Vs. M.C. Chikkanna and another (AIR 2001 Karnataka 139) and the case of Shri Awadh Kishore Singh and another Vs. Brij Bihari Singh and others (AIR 1993 Patna 122) in support of his contention that under Order 18 Rule 2, the plaintiff is not debarred from calling his adversary as a witness. The learned counsel submitted that the impugned order was erroneous and is required to be set aside. 6. Having heard the learned counsel for the petitioners, in my view, no interference is called for in the impugned order. The practice of calling in adversary as witness is deprecated by the Privy Council and the same is also reflected in para 122 of the Civil : 3 : W.P.NO.3838/2009 Manual. 7. Insofar as the aforesaid decisions are concerned, it is noticed that, the said decisions are neither of the Apex Court, nor of this Court. In any case, the said decisions clearly indicate that it is a discretionary power of the Court. In the case of M.C. Anand (supra), the Single Judge of Karnataka High Court has referred to the case of Syed Yasin Vs. Syed Shaha Mohd. Hussain (AIR 1967 Mys. 37), in which it was held that ordinarily the practice of calling the opposite party has been held and considered to be an unhealthy practice as held by the Lordships of Privy Council in Mahant Shatrugan Das Vs. Bawa Sham Das (AIR 1938 PC 59) and the Division Bench of the Karnataka High Court in the case of Mallangowda Vs. Govisiddangowda ( AIR 1959 Mys 194), wherein the Division Bench has observed as follows : "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 interest of justice." The Single Judge has also observed in para 9 of the judgment that it was open for this Court to refuse to permit the summoning by a party of his opponent. 8. In the case of Shri Awadh Kishore Singh (supra), the Division : 4 : W.P.NO.3838/2009 Bench of Patna High Court has observed that there is no bar in examining the adversary as a witness. 9. Thus, even if a charitable view of the matter is taken and assuming that the plaintiff may have a semblance of right to call the opposite party as his witness and examine him, the right is not absolute and it would be in the discretion of the Court whether to call the said witness but ordinarily such practice would be a eschewed as it is a unhealthy practice and unless exceptional and special circumstances are made out, the Court would be slow in exercising such discretion of calling the opposite party and compelling him to give evidence. In the present case I do not find any such compelling circumstances. 10. Considering the facts and circumstances of the case, and on perusal of the material on record, I do not find any fault in the discretion exercised by the trial Court in passing the impugned order. The impugned order is unexceptionable. The Writ Petition is, therefore, dismissed. Rule is discharged. No order as to costs. A.A. SAYED JUDGE fmp/wp3838.09