1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.370 OF 2007. Gangubai W/o Baburao Shinde ... Petitioner. Versus Sukhdeo S/o Baburao Shinde and others ... Respondents. ... Mr.S.S.Kazi, advocate for the petitioner. Mr.R.R.Karpe, advocate holding for Mr.H.D.Deshmukh, advocate for the Respondent No. 8. Respondent Nos.1,2,5,6,8 to 10 served. ... CORAM : V.R.KINGAONKAR,J. Date : 23.06.2009. PER COURT 1. Rule. Rule made returnable forthwith and heard finally. 2. The question involved in the petition is very short one. The petitioner filed suit 2 (RCS No.199/2002) in which affidavit of her General Power of Attorney came to be filed on her behalf. By the impugned order, the learned Civil Judge allowed the application filed by the original defendant Nos.1 and 8 to the extent that the petitioner shall produce her affidavit in examination-in-chief instead that of the Power of Attorney Holder. In other words, by the impugned order, the learned Joint Civil Judge (J.D.), Newasa, directed examination of the petitioner/plaintiff though she was not willing to enter the witness box. The defendant Nos.1 and 8 desired to cross-examine the petitioner by asking her to enter the witness box and, therefore, they moved the application. 3. A party can not be compelled to appear as a witness in the trial. This Court in "Pirgonda Hongonda Vs. Vishwanath Ganesh and others" AIR 1956 Bombay 251, held that it is choice of the plaintiff/petitioner to appear personally or to give evidence otherwise. It is observed : "Normally a party to the suit is expected to step into the witness box in support 3 of his own case and if a party does not appear in the 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." The Court has no business to per force ask a party to enter the witness box or to file affidavit. If for some or the other reason, the party is not willing to enter the witness box, at the most and if the circumstances furnish proper grounds, an adverse inference can be drawn against such a party. The question of burden of proof is also required to be considered in such a case. If there is no burden on the plaintiff to prove any fact then the plaintiff may not enter the witness box. If there is availability of certain available documentary evidence or if material can be gathered from cross-examination of the other party and his witnesses then also the party may not enter the witness box. I fail to see how the trial Court directed the petitioner to file the affidavit against her wish. The impugned order is no short of 4 perversity and arbitrariness. The trial Court did not apply judicial mind to the fact situation and unnecessarily gave such direction under the impugned order. 4. In the result, the petition is allowed. Rule made absolute. The impugned order is quashed. (V.R.KINGAONKAR,J.) asp/office/wp37007