ORDER : 1. This petition is filed under Article 226 and 227 of the Constitution of India challenging the order passed below Exhibit- 284 dated 01.01.2022 passed by 9th Additional Senior Civil Judge, Gandhinagar, in Special Civil Suit No. 136 of 2008, whereby the application Exhibit-284 praying for a direction by the Court to defendant No. 3 for the purpose of cross-examining him on a particular day by issuing summons, came to be rejected. Since controversy involved in this case is in a narrow compass and on a particular issue whether any party to the suit can request the Court to direct the other party to offer himself for the purpose of cross-examining him or not detailed discussion of a case before the lower Court as prayed for in the suit and other details are not necessary to be narrated in this decision. 2. Heard Mr. Rasesh S. Sanjanwala, Senior Advocate learned Counsel, assisted by Mr. Nikunt K. Raval, learned advocate for the petitioner. 2.1 He has submitted that as provided under Order X Rule 2, Order XV Rule 6 and Order XVI Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”), any party to the suit can request the Court to call other party for the purpose of cross-examination by the party calling him. 2.2 He has further submitted that party to a proceeding can always call other party for the purpose of examination. Drawing attention of the Court to the provisions made under Rule 1 of Order XVI of “the Code”, he has submitted that there is no prohibition therein that the party to a suit cannot be called as a witness for the purpose of cross-examining him by the other party. 2.3 He has further submitted that, in the suit, defendant No. 2 has examined himself and his examination is over, including the cross-examination. The defendant Nos. 1 and 3 have not given an examination-in-chief on oath. 2.4 He has further submitted that vide Exhibits-228 and 230 for the purpose of cross-examination of defendant Nos. 2.3 He has further submitted that, in the suit, defendant No. 2 has examined himself and his examination is over, including the cross-examination. The defendant Nos. 1 and 3 have not given an examination-in-chief on oath. 2.4 He has further submitted that vide Exhibits-228 and 230 for the purpose of cross-examination of defendant Nos. 1 and 3, an application was given which was rejected by the Court and against that order, Special Civil Application No. 9866 of 2018 came to be filed before this Court, wherein a statement was made on behalf of respondents – defendants that the examination-in-chief on oath filed by the defendant No. 2 would be considered as evidence on his behalf alone and it would not be considered as evidence tendered by defendant Nos. 1 and 3. Therefore, the said petition came to be disposed of. 2.5 It is further submitted that defendant No. 3 is also a competent witness to be examined and as the plaintiff had a financial transaction and agreement with him, considering the pleadings, he is required to be examined before the Court. Though the prayer made in the application Exhibit-284 is requesting the Court to direct the defendant No. 3 to offer himself for the purpose of cross-examination, it is only for the purpose of examining him being a party to the proceedings. 2.6 In support of his submissions, he has relied on a decision in the case of Syed Yasin v. Syed Shaha Mohd. Hussei, reported in AIR 1967 Mysore 37 to submit that there is no provision in “the Code” or in the Evidence Act, which prohibits a party from calling any person and examining him as “his” witness. Therefore, the Court below was bound to summon the plaintiff as a witness on behalf of the petitioner in the said case. After referring the order of Privy Council, which prohibits summoning of opposite side for examining on their behalf, ultimately Court permitted other party to the suit to be examined as witness on behalf of the calling party. 2.7 Reliance was placed on another decision in the case of Sri Awadh Kishore Singh and another v. Sri Brij Bihari Singh and others, reported in AIR 1993 Patna 122, again for the same principle that any party to the proceedings may call for other party as a witness on his behalf. 2.7 Reliance was placed on another decision in the case of Sri Awadh Kishore Singh and another v. Sri Brij Bihari Singh and others, reported in AIR 1993 Patna 122, again for the same principle that any party to the proceedings may call for other party as a witness on his behalf. Referring to para 16 therein, it is submitted that no party is debarred from examining its adversary as a witness on his behalf. It is further submitted that a plaintiff can examine any witness he so likes, the witness may be a stranger or maybe a man of his own party or party himself or maybe a defendant or his man. Therefore, according to his submission, if a plaintiff wants to examine a defendant as a witness on his behalf, he cannot be precluded from examining him on the ground that the said defendant has neither appeared in the suit nor upon appearance filed written statements, nor prayer for filing written statement has been rejected. 2.8 On the aforesaid submissions and the precedents relied on by him, he requested this Court that this petition be admitted and allowed. 3. As against that, Mr. K.V. Shelat, learned advocate for the respondents – defendants, submitted that invoking provisions of Order XVI Rule 1 of “the Code” is thoroughly misconceived. 3.1 He has further submitted that defendant No. 3 is contesting defendant and not a supporting defendant so as to examining him as plaintiff’s witness. He has further submitted that if he doesn't step in the witness-box, the consequence in accordance with law will follow. 3.2 He has further submitted that since he has not given any examination-in-chief on oath, there is no question of calling him for the purpose of cross-examination, as claimed by the petitioner – plaintiff. 3.3 He has further submitted that the petitioner – plaintiff does not want defendant No. 3 to be examined as his own witness because he cannot cross-examine him if he examines him as his own witness. 3.4 Drawing attention of the Court to the impugned order, it is submitted that evidence on both the sides is already over, final arguments are also over and thereafter, this application is filed, which is nothing but an attempt by the petitioner – plaintiff to delay the proceedings. 3.4 Drawing attention of the Court to the impugned order, it is submitted that evidence on both the sides is already over, final arguments are also over and thereafter, this application is filed, which is nothing but an attempt by the petitioner – plaintiff to delay the proceedings. Drawing attention of the Court to Sections 137 and 138 of the Indian Evidence Act, he has submitted that without a witness being examined in chief, there is no question of cross-examining him. 3.5 Mr. K.V. Shelat, learned advocate for the respondents – defendants, relied on a decision in the case of Pirgonda Hongonda v. Vishwanath Ganesh and others, reported in AIR 1956 Bombay 251, submitted that as observed in it, the Privy Council has condemned the practice of calling the party’s opponent as witness, which is highly objectionable. Such a practice ought never to be permitted in the result to embarrass judicial investigation as it is sometimes allowed to be done. It is further held in that decision that 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 party fails to appear in the witness-box, it should not be normally open to his opponent to compel his presence by the issue of witness summons. According to his submission, the said decision maybe on the facts and law, as stated hereinabove is by Bombay High Court prior to the bifurcation of the State and High Court, and therefore, it is a binding precedent. 3.6 Referring to another decision in the case of The Managing Director M/s V.V.D. & Sons Pvt. Ltd. v. Miss Kajal Agarwal, reported in 2017 SCC OnLine Mad 12749, more particularly, para 9, 10 and 11 thereof, for a proposition that Rule XVI does not refer to evidence given by a party to the suit on own behalf as a witness. The words used in the Rule are:- “Where any party to a suit is required to give evidence”, denote not voluntary act of giving evidence by a party in its own favor but required to do so by the other side or the Court. The words used in the Rule are:- “Where any party to a suit is required to give evidence”, denote not voluntary act of giving evidence by a party in its own favor but required to do so by the other side or the Court. This rule makes the provisions of “the Code” as to the witness, applicable as far as possible, to parties who are required to give evidence or produce documents. In the said case, it is held as submitted by the learned advocate for the respondents, that this rule clearly indicates that one party to the suit can examine the other party as his witness or require him to produce documents. Instead of there being any prohibition in “the Code” as regards the examination of one party to the suit by the other, this Rule clearly enables one party to the suit to require the other party to give evidence. 3.7 In the said decision also, a decision of the Bombay High Court as also the Privy Council have been relied upon and ultimately, Court had held that parties sought to be summoned as witness by other side were the real opponents, and therefore, compelling such parties to give evidence on behalf of the other party, is not desirable judicially, which view “I also endorse”. However, if the party sought to be summoned are not real opponents, then there maybe a relaxation for very good reasons, as submitted by the learned advocate for the respondents, saying that he is not the supporting opponent so as to call him as a witness to the plaintiff. 3.8 Ultimately, it is submitted that since the Court has already exercised the discretion and there are no grounds made out to interfere with such discretion, this petition filed under Article 227 of the Constitution of India be rejected. 4. Having heard learned advocates for the appearing parties as also going through the impugned order and the documents annexed with it, it appears that the attempt by way of application Exhibit-284, order passed below it and challenging the same before this Court is nothing but to delay the decision in the suit filed by the petitioner – plaintiff himself. 4. Having heard learned advocates for the appearing parties as also going through the impugned order and the documents annexed with it, it appears that the attempt by way of application Exhibit-284, order passed below it and challenging the same before this Court is nothing but to delay the decision in the suit filed by the petitioner – plaintiff himself. Even if he has to gain anything out of it or not, it is immaterial, but the fact remains that he cannot prolong the case, which has come to an end by such, if I may say so, frivolous application. 4.1 As coming out from the written arguments submitted by the learned advocate for the petitioner, Exhibits-228 and 230 were filed by the petitioner – plaintiff requesting to issue notice to defendant Nos. 1 & 3 as the petitioner – plaintiff wanted to cross-examine them vide application Exhibit-228 and vide application Exhibit-230, very same prayer was made on 26.02.2018 to keep defendant Nos. 1 and 3 present for the purpose of cross-examination by the plaintiff. However, vide common order dated 28.02.2018, said applications came to be rejected by the Court concerned. Not only that, against the very said common order, for a prayer which is made in this petition, which was rejected by the trial Court, the petitioner – plaintiff have challenged that order by way of Special Civil Application No. 9866 of 2018, which ultimately came to be withdrawn, maybe on the statement of the defendants that the examination-in-chief of respondent No. 2 would be restricted to defendant No. 2 only and shall not be treated as that of the defendant Nos. 1 and 3. However, fact remains that for a very same prayer calling defendant Nos. 1 and 3 both for the purpose of cross-examination, that too, by the plaintiff himself, came to be rejected and that order has attained finality, as challenge thereto was also withdrawn by the petitioner – plaintiff, petitioner – plaintiff could not have filed this application Exhibit-284, now restricting his prayer to call defendant No. 3 alone for the purpose of cross-examination by the plaintiff. 4.2 The precedents relied on by the learned advocate for the petitioner and the principle of law enunciated therein, there cannot be any quarrel. 4.2 The precedents relied on by the learned advocate for the petitioner and the principle of law enunciated therein, there cannot be any quarrel. However, if those decisions are examined closely, they are to the effect that adversary can be called as a witness on behalf of the other party as his witness, to be examined. However, there is no proposition of law enunciated therein, permitting calling of other party to the suit only for the purpose of cross-examination. As held by the Privy Council earlier and relied on by the Bombay High Court in the case of Pirgonda (supra) and Managing Director M/s V.V.D. (supra), the practice of calling defendant by plaintiff as his witness is condemnable. Here, it is required to be condemned twice, as having failed in his earlier attempts by way of application Exhibits-228 and 230 for the very same prayer, which was also again challenged before this Court and ultimately withdrawn, petitioner – plaintiff could not have filed application Exhibit-284 for the very same purpose. Not only that, having once filed it and got it rejected, he could not have challenged the same before this Court again. The conduct of the petitioner – plaintiff appears to be only delaying the trial Court. Though he may not gain anything out of delaying it but the fact remains that it is a burden on the Court where recording of evidence on both the sides is also over and even arguments are over, practice of filing such applications again, when earlier such applications came to be rejected and that order became final, such practice is required to be viewed very seriously. 5. In view of what is stated hereinabove, not only this petition is not maintainable, having similar prayer once rejected by the trial Court and confirmed by this Court by way of withdrawal of a petition, on merit also, I see no reason to entertain this petition under Article 227 of the Constitution of India, and therefore, it is hereby rejected with a cost of Rs. 25,000/- to be paid to the respondents – defendants. Hence, this petition is rejected. Interim-relief, granted earlier, stands vacated.