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2002 DIGILAW 1246 (MAD)

Varadharajan v. Saravanan

2002-10-11

K.GNANAPRAKASAM

body2002
Judgment :- The defendant in O.S. No.4292 of 1996 before the VII Assistant Judge, City Civil Court, Chennai is the Revision Petitioner herein. 2. The petitioner/defendant has filed an application in I.A. No.6580 of 2000 under Order 18 Rule 16 and Section 151 C.P.C. to take out supheona to R. Yogalakshmi and Bharanitharan, who are the original promisees of the suit promissory note to appear before the Court and to give evidence and the said application was dismissed by order dated 7.6.2000. Aggrieved by the same, the defendant has preferred this Civil Revision Petition. 3. It is seen that the suit has been filed on the basis of assigned promissory note in favour of the plaintiff. The plaintiff has been examined as P.W.1 and one of the witnesses to the promissory note has also been examined as P.W.2. It is the case of the defendant that he does not know the original promisees under the promissory note. But at the same time he states that he knows one Bakthavatchala Naidu, who had secured his signature in blank stamp papers at his office, but no consideration was passed. As such, the signature of the defendant in the suit promissory note is admitted. But, however, he would dispute that the plaintiff is a not holder in due course of the promissory note. 4. It has been rightly held by the trial Court that it is the duty of the plaintiff to prove that he is the holder in due course and it is unnecessary for the defendant to summon the original promisees as witnesses on his side. 5.Order 16 Rule 21 C.P.C. States "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. 6. Though there is nothing in Order 16 Rule 21 C.P.C. to prevent the party from examining his opponent as a witness in the case, such practice is not allowed. 6. Though there is nothing in Order 16 Rule 21 C.P.C. to prevent the party from examining his opponent as a witness in the case, such practice is not allowed. In this context, it will be useful to refer Order 16 Rule 14 C.P.C. Which empowers the Court to summon the witnesses even strangers to the suit which states as under: "Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the court at any time thinks it necessary to examine any person, including a party to the suit, and not called as a witness by a party to the suit, the Court may of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be appointed, and may examine him as a witness or require him to produce such document". 7. Even in this rule, the power of the Court to examine the witnesses on his own motion, is discretionary. Ordinarily it is for the party to summon the witnesses necessary for his case and when the party has done everything in that regard, it is the duty of the Court to enforce their attendance. Only when it appears to the Court that the evidence of a particular witness is necessary for the proper adjudication of the suit, then only the Court may secure suo motu the attendance of such witness. This discretionary power under this Rule should not be used to help a party to tide over a real difficulty in examining that witnesses. When neither side has summoned the material witness to give evidence, the Court is justified in refusing to call him as a Court witness after closure of evidence. 8. In fact, Rule 14 prior to amendment by the Amendment Act 1976, Court had power to summon as witnesses any person other than a party to the suit who had not been called as a witness by any party either to give evidence or to produce document. The Rule did not confer any express power on the Court to summon a party to the suit as a witness. But after the Amendment, 1976, the Court has been given express power to summon a party to the suit. The Rule did not confer any express power on the Court to summon a party to the suit as a witness. But after the Amendment, 1976, the Court has been given express power to summon a party to the suit. Even if a party voluntarily appears in the witness-box to give evidence in his own favour and deliberately keeps himself away after examination-in-chief and before cross examination, the Court cannot exercise its power under the amended Rule also. 9. But, in the case of 'LAL KUNWAR VS CHIRANJI LAL ( 1909-32 Allahabad 104), Their Lordships of the Privy Council severely condemned the practice of a party not examining himself as his witness and forcing the opposite party to summon him, thereby hoping to obtain an opportunity of being cross-examined by his own counsel. 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". 10. In MAHUNT SHATRUGAN DAS VS BAWA SHAM DASS AND OTHERS ( 1938 Privy Council 59), the plaintiff wanted to examine the defendant as a witness and it was held as follows: "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" 11. Even in the proceedings under Section 145 Cr.P.C. the practice of a party causing his opponent to be summoned as a witness has been disapproved.( EMBRAHIM KUNJU MUHAMMED KUNJU VS SHAHABUDEEN AND OTHERS- 1969 K.L.T.170). But in the extra-ordinary circumstances, the Magistrate acting under Section 145 Cr.P.C. may summon a witness who is not a party to the proceedings. Under the first proviso to sub-section 4 of Section 145 Cr.P.C, the Magistrate may, if he thinks fit, summon and examine any person whose affidavit has already been filed under Sub section (1). If a party applies under Section 9, the Magistrate may call even the witnesses who had not filed affidavits, but the Magistrate must always bear in mind that the proceeding, as far as practicable, must be concluded within two months of the appearance of the parties. If a party applies under Section 9, the Magistrate may call even the witnesses who had not filed affidavits, but the Magistrate must always bear in mind that the proceeding, as far as practicable, must be concluded within two months of the appearance of the parties. Under this sub section, the Magistrate may also direct any person to produce any document or thing and that could be done only in appropriate cases where the Magistrate will have wide power. 12. From the above, it could be seen that the power to examine any person including the party to the suit was given to the Court under Order 16 Rule 14 C.P.C. And such power is not given to a party to the suit under Order 16 Rule 21 C.P.C. Therefore the Courts have been depricating and disallowing the practice of a party calling his adversary as a witness on his side. In the said view of the matter, the petitioner/defendant is not entitled to summon the original promisees as witnesses on his side and therefore, the order passed by the trial Court, does not suffer from any infirmity which calls for any interference by this Court. The Civil Revision Petition is dismissed. No costs. Consequently, C.M.P.No.8721/2000 and V.C.M.P.No.4668/2002 are closed. 13. As the suit is of the year 1996, the trial Court is directed to dispose of the matter as expeditiously as possible.