dgm gm gm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.5897 OF 2008 PETITION NO.5897 OF 2008 PETITION NO.5897 OF 2008 Chandrabhan R. Singh Petitioner Vs. Prabhakar R. Desai Respondent. Mr.U.S.R.Singh for the Petitioner. Mr.Raj Patel with Ms.Krupa Shah i/by. M/s.K.V.Aiyar & Associates for the Respondents 1 and 6. CORAM CORAM CORAM : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. DATED DATED DATED : 14th November, 2008. : 14th November, 2008. : 14th November, 2008. P.C. P.C. P.C. The petitioner has challenged the order, whereby pending the trial, the trial court rejected his application to call defendants 4 and 5 as witnesses. The fact remains that while taking evidence and passing orders relating to admissibility of document, by order dated 7.9.2007 the court has made observation, the relevant portion is as under: "The document at sr. no.8 is an affidavit which is required to be proved and therefore it is marked as article X. " 2. These are the affidavits basically sworn by the said defendants 4 and 5. They are not appearing in the matter till this date except by sending written statement by post which is also not taken on record. ( 2 ) No Advocate is appearing on their behalf. Therefore, the situation, whether they may or may not appear in the matter, there is no point keeping the evidence of plaintiff in dark in this regard. The requirement of law to prove document including this affidavit which goes to the root of the matter or at least support the case of the plaintiff, there is no reason to discard such application merely on a foundation that he is a party to the proceeding. In the suit like this, in my view, the circumstances are sufficient to grant the application filed by the petitioner. It is necessary to give full opportunity to the parties to put their case and evidence. 3. The judgment as cited by the learned counsel for the respondent in Pirgonda Hongonda v. Vishwanath Pirgonda Hongonda v. Vishwanath Pirgonda Hongonda v. Vishwanath Ganesh Ganesh Ganesh & ors., AIR 1956 Bom. 251 & ors., AIR 1956 Bom. 251 & ors., AIR 1956 Bom. 251 is not applicable in view of above facts. The plaintiff/parties cannot be deprived of their right to substantiate their case by leading proper evidence including by calling the defendants as witnesses, specially when the defendants are not actively participating the proceedings. 4. The learned counsel for the petitioner has relied on Ramdas D. Pokharkar vs. State Bank of India, Ramdas D. Pokharkar vs. State Bank of India, Ramdas D. Pokharkar vs. State Bank of India, ( 3 ) 2003(1) 2003(1) 2003(1) ALL MR 76, ALL MR 76, ALL MR 76, whereby this Court has considered Order 16, Rule 1(3) read with Rule 21 clearly expressed that the examination of opposite party is not prohibited by law. This court has also distinguished the judgement cited by the learned counsel for the petitioner in Pirgonda Hongonda Pirgonda Hongonda Pirgonda Hongonda (supra). (supra). (supra). 5. Even otherwise, considering the facts and circumstances of the case, I am inclined to grant this application. The application filed by the petitioner in the trial court is allowed. The Court to pass the appropriate order accordingly. 6. The petition is therefore allowed in the above terms. ( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.)