ORDER : Petitioner being the plaintiff in an injunctive suit in O.S.No.1963/2002 is knocking at the doors of Writ Court for assailing the order dated 15.10.2019, a copy whereof is at Annexure-K whereby, the learned XXXI Addl. City Civil Judge (CCH14) Bangalore, having favoured respondent’s applications in I.A.Nos.58 & 59 has summoned him to enter the witness box for cross examination by the defendant. 2. After service of notice, the respondent having entered appearance through his counsel makes submission in justification of the impugned order and opposes the Writ Petition. 3. Having heard the learned counsel for the parties and having perused the petition papers, this Court frames the following two questions of law for consideration: (i) Whether a person who has not deposed in examination-in-chief be summoned for cross examination? (ii) Whether is it open to the defendant to summon the plaintiff for deposing as his witness? The answer to these questions has to be in the negative for the reasons stated hereunder: (a) admittedly, the petitioner – plaintiff till date has not entered the witness box and deposed by way of examination in chief or by filing the affidavit evidence, in lieu of formal examination in chief; in the absence of examination in chief, a person cannot be straightway subjected to cross examination subject to all just exceptions into which case of the petitioner does not fit; Mr. Rupert Cross, an Oxford Professor of law, in his treatise “EVIDENCE” III Edition, London – BUTTERWORKS, at Page – 212, states as under: “All witnesses are liable to be crossexamined except one who is called by the judge, one who is called for the sole purpose of producing a document and one who is not examinedinchief because he had been called by mistake. A witness who does not come within these excepted categories is probably liable to be crossexamined, not merely by the opponent of the party calling him, but also by all other parties. A witness who does not come within these excepted categories is probably liable to be crossexamined, not merely by the opponent of the party calling him, but also by all other parties. All parties probably have the right to crossexamine witnesses not called by them, whether or not the witness is himself a party, and whether or not the witness has given evidence against the party seeking to crossexamine him; … (b) Sarkar’s “Law of Evidence” 18th Edition, Lexis Nexis at page 138 states as under: “When Witness may not be Cross Examined- (1) A witness summoned merely to produce a document (post s.139); (2) a witness sworn by mistake (ante and post s.139); or (3) a witness whose examination has been stopped by the judge before any material question has been put (Creevy v. carr. 7 C & P 64) is not liable to cross-examination. (4) A witness giving replies in answer to questions by the court can only be cross – examined with leave (s.165 post). (5) A witness who has given no evidence in chief, may not be crossexamined as to credit (Bracegirdle v. Bailey, 1 F & F 536). (6) Under s.138 of the Indian Evidence Act, cross-examination follows chief-examination, but not without chief-examination. It there is no chief-examination, there is no cross-examination. Application for cross-examination of the plaintiff even when the plaintiff has not been examined in chief was rejected as not maintainable”. (6) Under s.138 of the Indian Evidence Act, cross-examination follows chief-examination, but not without chief-examination. It there is no chief-examination, there is no cross-examination. Application for cross-examination of the plaintiff even when the plaintiff has not been examined in chief was rejected as not maintainable”. (c) the subject applications have been filed for summoning the petitioner – plaintiff for the purpose of cross examination on the ground that his attorney had deposed from the side of plaintiff and that he is now dead; no provision of Evidence Act, 1872 nor any standard books on Evidence are cited in support of the proposition that where the attorney of a party to the suit having deposed in cross examination is dead, the said party can be straightway subjected to cross-examination by the other party; perhaps, the contention of the petitioner is abhorrent to the very idea of cross-examination; in other words, there cannot be a cross-examination of a person because his attorney / agent having been examined in chief is not available for cross-examination because of death, disease or otherwise; (d) the contention of the learned counsel for the respondent that his subject applications can be construed as the ones for summoning the plaintiff to depose as defendant’s witness is untenable; the Privy Council in MAHUNT SHATRUJAN DAS VS. BEWA SHAM DAS, AIR 1938 PRIVY COUNCIL 59, observed that the practice of calling the defendant as a witness to give evidence on behalf of the plaintiff is condemnable; no special circumstances are pointed out as to why this judicial opinion emanating from enormous wisdom should not be respected and followed. 4. In the above circumstances, this writ petition succeeds; a Writ of Certiorari issues quashing the impugned order and respondent’s subject applications are dismissed. No costs.