Judgment:
P.K. Tripathy, J.
1. Plaintiff in Title Suit No. 41 of 1998 of the Court of Civil Judge (Sr. Division), Parlakhemundi has preferred this Civil Revision under Section 115 of the Code of Civil Procedure, 1908 (in short 'the Code') as against the order passed on 21.9.1999 by the trial Court. It appears from that order that plaintiff's application under Order 16 Rule 21 of the Code to summon the defendant No. 2 to depose in the case as a witness on behalf of the plaintiff was rejected on the ground that such a practice has been condemned by the Privy Council as per the commentaries in the Indian Evidence Act by Sarkar 13th Edn. page 1395 and 1396.
2. It was stated at the bar that plaintiff has brought the suit for partition against his two surviving brothers and the legal representatives of one deceased brother. Along with the relief of partition plaintiff has also claimed for other reliefs, with respect to the suit properties. Defendant No. 2 filed a written statement inter alia advancing plea of previous partition. In course of hearing of the suit plaintiff tendered his evidence both oral and documentary and closed his case. In course of adducing of evidence by the defendants defendant No. 2 did not appear as a witness. Since the defendant No. 2, as believed by the plaintiff, is to depose about the truth on the issue of partition, therefore, he filed the application under Order 16, Rule 21 of the Code seeking issue of summons to defendant No. 2 to appear as a witness and to permit him (Plaintiff) to examine that witness. The defendants opposite party members opposed to that prayer inter alia stating about the physical incapability of the defendant No. 2 to appear and depose.
3. Learned Civil Judge (Sr. Division) took note of the report submitted on 30.8.1999 by the Advocate Commission who had been deputed to record the evidence of defendant No. 2 on behalf of the defendants. Besides that learned Civil Judge (Sr. Division) also referred to the commentaries on evidence Act by Sarkar and the provision in Order 16, Rule 21 of the Code besides the decision reported in AIR 1993 Patna 122, (Sri Awadh Kishore Singh and Anr. v. Sri Brij Bihari Singh and Ors.) and notwithstanding the ratio of the Division Bench decision of Patna High Court in favour of examination of a party as a witness for the opponent in such manner, learned Civil Judge (Sr. Division) rejected the application on the ground of physical condition of defendant No. 2 and condemnability of the practice in calling the adverse party as a witness.
4. Mr. P.V. Ramdas, learned Senior Counsel arguing for the petitioner contended that the report of the Commissioner was no proof of illness and incapability of the defendant No. 2 to depose inasmuch as the Advocate Commissioner returned the writ because within the extended period of the writ till 31.8.1999 adjournment was prayed for on behalf of defendant No. 2 till 29.9.1999. Referring to the case of Sardar Gurbakhsh Singh v. Gurdial Singh and Anr., AIR 1927 Privy Council 230 and Mahunt Satrughana Das v. Bawa Sham Das and Ors., AIR 1938 Privy Council 59, he argued that such ratio was propounded on distinguishable facts and circumstances. According to him the ratio in the case of Gurbakhsh Singh (supra) lends support to the steps taken by the plaintiff in this case. He argued that in the cases of Syed Yasin v. Syed Shaha Mohd. Hussain, AIR 1967 Mysore 37 and Sri Awadh Kishore Singh and Anr. v. Sri Brij Bihari Singh and Ors., AIR 1993 Patna 122, Hon'ble Courts have found no illegality in the matter of plaintiff applying for examining defendant as a witness on his behalf. Accordingly, learned counsel for the petitioner argued that the impugned order be set aside and plaintiff be permitted to examine defendant No. 2 so as to prevent the mischief played by the other defendants by withholding examination of the defendant No. 2 as a witness in the suit.
Learned counsel for the defendants/opposite parties on the other hand supports the impugned order, the observation made by the Privy Council in the above noted decisions and also relied on the case of Pirgonda Hongonda v. Vishwanath Ganesh and Ors., AIR 1956 Bombay 251.
5. Hearing of this civil revision having concluded prior to coming into force of the Act 46 of 1999 which amended Section 115 of the Code, therefore, the question of maintainability of the civil revision as per the amended provision was neither raised nor considered.
6. In the case of Gurbakhsh Singh (supra) keeping in view the facts involved in that case, Privy Council depricated the practice of calling the opponent party as a witness in the following circumstances :
'It sometimes takes the form of a manoeuvre under which counsel does not call his own client, who is an essential witness, but endeavours to force the other party to call him, and so suffer the discomfiture of having him treated as his, the other party's, own witness.'
In the case of Mahunt Shatrugan Das (supra) Privy Council depricated the practice of the plaintiff withholding himself from, the witness box and calling the defendant to be his witness.
7. It, therefore, appears that under the given facts and circumstances Privy Council depricated a sharp practice of acting unethically by a counsel in the matter of tendering evidence by withholding his own party but calling adverse party as a witness from his side. It be noted here that in the present case such is not the situation inasmuch as the plaintiff examined himself and all his witnesses and closed his case expecting the defendant No. 2 to appear and depose when he (plaintiff) would be able to confront his claim of no previous partition. The fact situation in the record indicates that defendant No. 2 has been withheld from the witness box and persons acting as power of attorney are appearing to represent the defendant No. 2. Therefore, plaintiff's effort to get a statement from defendant No. 2 relating to the claim of previous partition cannot be regarded as unethical under the aforesaid circumstance. In the other cited cases, as noted above, except the Bombay case, High Courts have allowed adverse party to be examined as a witness under suitable circumstances. The Division Bench decision of the Patna High Court (case of Sri Awadh Kishore Singh and another) has clearly laid down the principle that there is no legal bar in allowing an application under Order 16 Rule 21.
In the case of Pirgonda Hongonda (supra) the Bombay High Court keeping in view a circular issued by that High Court preventing a party to call his adverse party as a witness and the fact situation that without any justifiable cause plaintiff applied for summoning the defendant to appear as his witness, rejected the application under Order 16 Rule 21 of the Code. Fact and circumstances in that case are distinguishable so as to not to apply that ratio to the present case.
8. If a decision is cited and referred to then it is appropriate for a Court either to apply the ratio or to indicate the reason for not following the same, in the present case, learned Civil Judge after referring to the case of Sri Awadh Kishore Singh (supra) and without examining relevancy of the ratio in the above noted two decisions of the Privy Council declined to follow the ratio of the Patna High Court. The concerned Judicial Officer is cautioned not to depart from the manner in which precedents are to be accepted and followed.
9. It appears that commission was appointed to examine defendant No. 2 as a witness. On 24.8.1999 the Advocate Commissioner found the defendant No. 2 to be sick and not capable of giving any answer. On the second instance i.e. on 29.8.1999, as reported by the Commissioner, when he reached to the house of defendant No. 2, he found the defendant No. 2 still to be sick and counsel for defendant No. 2 requested to adjourn the matter till 29.9.1999. In view of such report of the Advocate Commissioner, learned Civil Judge (Sr. Division) should have passed appropriate order relating to fixing another date for examination of defendant No. 2 as a witness by the Advocate Commissioner. When the plaintiff is confident that evidence of defendant No. 2 will be clinching on the vital issue of partition, it is observed that if the defendant No. 2 would volunteer to be examined on his own behalf either appearing in Court or through Advocate Commissioner at his own cost then that application be afresh considered and allowed. If no such application shall be moved by defendant No. 2, within a period of three weeks from the date of this order, then learned Civil Judge (Sr. Division) shall treat the application under Order 16, Rule 21 filed by the plaintiff allowed and shall direct for examination of defendant No. 2 as a witness for the plaintiff. If the defendant No. 2, in that case, will plead about his physical incapability to come to the Court then plaintiff shall bear the cost of the Commissioner who shall go and record the evidence. Just to avoid any pretext on the part of the power of attorney of defendant No. 2 or the other interested persons so as to get the defendant No. 2 not examined as a witness trial court shall permit a Doctor to accompany the Commissioner at the cost of the party on whose application the Commissioner shall go. Such Doctor should be selected by the Court without being influenced by either of the parties. In the event, the plaintiff is compelled to take such a recourse, then he may be permitted to put leading questions to defendant No. 2, if necessary. The Doctor shall be directed by the Court to examine the defendant No. 2 and to give a separate report in a sealed cover relating to his (defendant No. 2's) capacity to depose and that may be considered at the time of assessment of evidence for drawing adverse inference, if any, keeping in view the circumstances,
10. For the reasons indicated above, the impugned order is set aside and the civil revision is allowed with the foregoing observations and directions.