Madras High Court
Union Bank Of India vs Muthiah on 17 December, 1998
Equivalent citations: (1999)1MLJ679
ORDER S.S. Subramani, J.
1. The tenant, who is the respondent in R.C.O.P.No. 73 of 1977 on the file of Rent Controller/District Munsif, Tirunelveli, is the revision petitioner. The revision is filed under Article 227 of Constitution of India.
2. The facts are very simple. The landlord filed the rent control petitioner fixation of fair rent. In that proceedings, he wanted the Chairman of the Union Bank of India to be examined. The Union Bank of India is the tenant, who is the revision petitioner herein.
3. In his application, landlord only said that it is just and necessary to reopen the case for the purpose of examining one more witness, i. e., The Chairman of Union Bank of India, Bombay on his side to decide the issue rightly.
4. The same was seriously opposed by the tenant by filing a counter. It was stated in the counter that the request to examine the Chairman of Union Bank of India as witness on behalf of landlord i.e., opposite party is nothing but abuse of process of court and therefore, it prayed for dismissal of the said application.
5. By the impugned order, lower court allowed the application, which is now challenged in this revision petition.
6. When the matter came up for admission, I ordered notice of motion and further proceedings was stayed. After entering appearance, landlord was also heard.
7. According to me, the procedure, adopted by the lower court is per se illegal. It has been repeatedly held by various courts that the practice of summoning opposite party as witness have to be deprecated, and the same will result to embarass the judicial investigation.
8. Mulla on his Commentaries to Code of Civil Procedure, 15th Edition, has stated thus, Duty of suitors to give evidence on their own behalf In Lal Kunwar v. Chirajji Lal (m), their Lordships of the Privy Council severely condemned the practice followed in some parts of India of advocate omitting to call their own client as a witness in the hope of forcing their opponents to call him as their witness in order that they themselves may have the opportunity of cross-examining their own client when called by the other side. Referring to this practice, their Lordships said it is a vicious practice, unworthy of a high-toned or reputable system of advocacy. It must embarrass and perplex judicial investigation, and, it is to be feared, too often enables fraud,' falsehood, or chicane to baffle justice.
Likewise, the practice of calling the opposite side as one's own witness has been disapproved. If a party, who is in a position to give evidence, does not go into the box, the court is free to draw an inference against him.
9. As early as in Shatrugan Das v. Sham Das A.I.R. 1938 P.C, 59 : 172 I.C. 633, it is held thus:
The practice of calling the defendant as a witness to give evidence on behalf of the plaintiff is condemnable. In such a case the plaintiff must be treated as a person who puts the defendant forward as a witness of truth.
10. In Pirgonda v. Vishwanath , Justice Gajendragadkar (as he then was) held thus, Mr. Datar has also relied upon circular No. 161 of the circulars issued by this Court in the civil Manual. This circular has invited the attention of the subordinate Judges to the observations of the Privy Council in Kishori Lal v. Chwni Lal 31 All 116 at 122(PC)(A). Their Lordships of the Privy Council have referred to the practice which sometimes seemed to obtain in some of the Courts in India of calling the party's opponent as a witness and they have observed that this practice is highly objectionable. 'Such practice', said their Lordships 'ought never to be permitted in the result to embarrass judicial investigation as it is sometimes allowed to be done.
Normally a party to the suit is expected to step into the witness box in support 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.
11. In Mallangowda v. Gavisiddangowda A.I.R. 1959 Mys. 194, the Division Bench of Mysore High Court held thus, the practice of calling the opposite party as witness should not be countenanced as it is not in the interest of Justice.
12. Kerala High Court also had an occasion to consider the same position, which is reported in Muhammad Kunju v. Shahabudeen 1969 K.LT. 170, Justice Raghavan (as he then was) held thus, The practice of a party causing his opponent to be summoned as a witness has to be disapproved. As a matter of right a party cannot have the opposite party examined as a witness.
13. In Gandamal v. Bhulloo Ram at para 12 of the judgment, their Lordships held thus, It is a bad practice that when parties are in a position to give personal evidence they should refrain from entering the witness box. If such, evidence is withheld without sufficient cause, the court is not only entitled to but is bound to draw an adverse inference against the party who has thus withheld evidence. It is a still more objectionable practice to cite opposite side as one's own witness. This places the examination and cross-examination of such a witness in wrong hands, necessitates the criticism of the evidence by the side which has called it and this embarrasses fair trial and causes obstruction of justice.
14. In Sadh v. Panu , in paragraph 12 of the judgment, their Lordships reiterated the same principle.
15. From these settled legal position, it is clear that the impugned order cannot be sustained and the lower court exceeded its jurisdiction in allowing the application.
16. The impugned order is therefore set aside and the civil Revision petition is allowed. No costs. Consequently C.M.P.No. 16014 of 1998 is closed.