Judgment:
ORDER
1. The revision petition has been filed against the order dismissing the petition seeking permission to examine the first defendant as a witness on the side of the petitioner who is the plaintiff.
2. The petitioner filed O.S.No.198 of 1999 before the District Munsif, Erode for declaring the right of the plaintiff to take water from the suit wells and to restrain the defendants from interfering with his rights and for other reliefs.
3. The case of the petitioner is that he is entitled to take water from the suit wells. All the parties are related. The respondent herein is the fourth defendant. When the petitioner applied to the P.W.D. and Revenue Department for their permission to lay a pipe-line through me Poramboke lands, he got the consent of the defendants 1, 2, 3, 5 and 6. According to the petitioner, the respondent herein also gave an oral consent. It is also the case of the petitioner that the defendants 1, 2, 5 and 9 have no objection to his taking water from the suit wells. The suit was filed because, the defendants 3 and 4 threatened to break and destroy the pipe-line. The petitioner relied on the sale deed dated 16.11.94 in which the first, defendant is one of the witnesses and the letter addressed to the Executive Engineer, P.W.D, wherein amongst others, the first defendant had given his no objection to the petitioner, taking water from the suit well.
4. The fourth defendant who is the respondent herein filed his written statement denying the oral consent and denying the right of the petitioner to take water. It is also the case of the respondent that the other defendants being related to the petitioner one way or the other, they have colluded and created documents to support the petitioner's case. The third defendant filed his written statement, but remained ex parte. The other defendants have not filed their written statement and do not intend to contest the suit. At this juncture, the petitioner filed 1.A. No. 1151/2000. It was stated therein that none of the defendants except the respondent herein are contesting the suit. Permission was sought to examine D1 as a witness, since he is a party to the sale deed referred to above and marked as Ex.A2 and a no objection letter referred to above marked as Ex.A18. In this petition, the respondent who is the fourth defendant alone was made a party. He filed his counter stating that the petition ought not to be allowed since the first defendant is inimical to the respondent and that the decisions of various courts have also been to the effect that the practice of calling the opposite party as witness is objectionable. Learned Additional District Munsif, Erode considered the authorities cited before him and dismissed the petition. The petitioner has therefore filed this revision.
5. Mr. Murugamanickam, learned counsel for the petitioner submitted that the decisions relied on by the court below will not apply to this case since the first defendant cannot be strictly considered as an opposite party. When the first defendant has no intention of contesting the suit or resisting the suit claim, calling him as a witness will really not amount to abuse of process of law.
6. Mr. M.M.Sundaresh, learned counsel for the respondent submitted that there was no necessity to call the first defendant since the entire suit lingers on whether the fourth defendant i.e., the respondent had given consent or not. He also submitted that the petitioner has approached the court for permission to examine the first defendant with an oblique motive.
7. The provision in the C.P.C. regarding examination of a party as a witness is laid down in Order 16, Rule 21, which reads as follows:
'Where any party to a suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as they are applicable. '
Therefore, the C.P.C. itself does contemplate the situation where a party may be required to give evidence or to produce a document. The word 'requires' itself shows that the said witness is not coming forward voluntarily but has been called upon to give evidence. In this case, the petitioner has clearly stated as follows in his affidavit in support of the petition:
' The other witnesses are also not contesting the suit, except the 4th defendant. All the other witnesses were added in the suit only for the purpose of avoiding the plea of non-joinder of necessary parties and since (hey are also having shares in the suit wells.'
8. Therefore, it is apparent that the contest is only between the petitioner and the Respondent. It is also relevant to note the provisions of Order 18, Rule 2, C.P.C. The parties before the court therefore have a right to adduce evidence on their behalf. In fact, where there are several defendants and some of them support the case of the plaintiff, it has been held that the court cannot shut out their evidence and they are entitled to adduce evidence in their turn as a matter of right. Of course, the procedural formality requires that the order in which the evidence is to be taken is that first, the plaintiff and those defendants who support his case must address the court and call their evidence and then, the other party, i.e. the other defendants should address the court. In this case, the first defendant cannot be strictly called the other party, because he has consented to the right of the plaintiff and it is also the case of the respondent that he alone is challenging the right of the petitioner. The following judgments were referred to. If we examine the judgment relied on in Appavoo Asary v. Sornammal Fernandes', A.I.R. 1933 Mad. 821 the suit was one for payment for work done by the first defendant's deceased husband. In the course of trial, 9 witnesses were examined and thereafter, the plaintiff filed an application under Order 3, Rule 1 for directing the first defendant to appear before the Court. It was held that in that case:
' No Court of law would be justified in ordering a party to appear in Court on an application put in under O. 3, R. I, except for very good reasons. Where one party desires the presence of the opposite party in Court for the purpose of examining him as a witness, the proper procedure to adopt is the one under 0. 16 and not the one under the proviso to 0. 3, R. 1.'
9. The next decision that was relied on is reported in D.S.Kanniah Chetty & Co. v. Pulipati Subba Rao, . This is also strictly not on the point because the ratio in this case is that Order 16, Rule 21 applies only to cases where a party has been called by the other party. The court has no power under it to order travelling expenses of party giving evidence in support of his own case.
10. Then, Union Bank of India, Tirunelveli Junction v. Mufhiah was relied on in which this court held that the application to examine the Chairman of Union Bank of India is per se illegal. The Union Bank of India in that case was a tenant and the proceedings were for fixation of fair rent, therefore, the request to examine the Chairman was held to be abuse of process of law. The learned Judge in this case had referred to several decisions including the commentaries to the Code of Civil Procedure, (Mulla) . In Mulla's commentaries , it has been stated that omitting to call one's own client as a witness in the hope of forcing the opponents to call them as theirs is a vicious practice. It was also stated therein that the court was entitled to draw an inference against a party who though in a position to give evidence, does not go into the Box. Reference was made to Shatrugan Das v. Sham Das wherein it was held thus:
' The practice of calling the defendant as a witness to give evidence on behalf of the plaintiff is condemnable. I such a case the plaintiff must be treated as a person who puts the defendant forward as a witness of tmth. ' Again in Pirgonda V.v Vishwanath, it was held that:
' If a party fails to appear in the wilness box, it should normally not be open to his opponent to compel his presence by the issue of a witness summons.'
In Mallangowda v. Gavisiddangowda A.I.R. 1959 Mad. 194 the Division Bench of the Mysore High court condemned the practice of calling the opposite party as witness as it is not in the interest of justice. All these decisions were relied on by the learned Judge in the above decision to come to the conclusion that the order permitting the landlord to examine the Chairman of Union Bank of India which is the tenant as illegal.
11. In Kaliaperumal v. Pankajavalli and 2 others, 1999 (1) L.W. 660 the case before the court was a suit for partition. The petitioner was the plaintiff and the second defendant claimed that the suit titles were given to her on lease by the first defendant. An application was filed for permission to examine the second defendant. This court held that he was not entitled to do so since the second defendant is the contesting respondent and the petitioner wants to examine the opposite party as their witness.
12. If there was a total bar on the right of a party to summon another party to give evidence as a witness, Order 16, Rule 21 will not find a place in the code. The inclusion of this provision itself shows that there may be situations where a party may be called upon by another to give evidence as the latter's witness. In fact, in Appavoo Asary v. Sornammal Fernandes A.I.R. 1933 Mad. 821, the learned Judge held as seen from the passage extracted above that when one party desires the presence of other party, the proper procedure is under Order 16. Therefore, if there are very good reasons, the court may exercise its discretion in favour of the party seeking permission. The Case laws with regard to Order 18, Rule 2 are to the effect that even the defendants who support the case of the plaintiff are entitled to give evidence and it is in fact their right and they cannot be shut out. In this case, the first defendant is not the contesting defendant and from the averments in the affidavit, it is seen that he has been made a party only so that the suit would not be dismissed for non-joinder. The petitioner relies on a document in which the first defendant is a signatory recognizing the right which is claimed by the petitioner in the suit. This is also not a case where a party who avoids the witness box calls upon the other side to give evidence. Evidence has been adduced on the side of the petitioner and documents have also been marked. The petitioner wants to elicit evidence with regard to two of the exhibits to which the first defendant is a party. The reasons that prevailed in the minds of the Judges for condemning the practice of summoning the other side witness do not exist in this case. The first defendant is not strictly an opposite party and this is also recognized by the respondent herein whose pleading is that the interest of the petitioner and the other defendants are common. In these circumstances, I see no reason why this application under Order 16, Rule 21 should not be allowed. Of course, if the first defendant is examined on the side of the petitioner, the petitioner will be bound by the evidence elicited from the said witness. The order of the court below is therefore set aside. C.R.P. is allowed. No costs.