Case Note & Summary
The litigation arose from a suit for partition, possession and perpetual injunction instituted by the original plaintiffs, whose predecessor Digambar had died and whose legal representatives came on record. The defendants included Dattatraya (since deceased through legal representatives), his two widows Laxmibai (since deceased) and Chabubai, and his married daughters Indumati (since deceased) and Sunita. During the trial, after the defendants closed their evidence and defendant No.1 had testified on behalf of all defendants, the plaintiffs filed an application at Exhibit 126 under Order XVI Rule 1 read with Rule 21 of the Code of Civil Procedure seeking witness summons to Indumati and Sunita. The trial court rejected the application, prompting the writ petition. By the time of the High Court hearing, Indumati had died, rendering the request to summon her infructuous. The surviving controversy concerned the rejection of the application to call Sunita as the plaintiffs' own witness. The plaintiffs contended that nothing in the Code prohibited a party from calling an adversary as its own witness and placed reliance on Ramdas Dhondibhu Pokharkar v. State Bank of India and Anr. and M/s. Ravalnath Builders v. Mrs. Sebastiano Escolastica Beatriz Nunes Mondonsa. They sought Sunita's testimony to prove that she had got one of the suit properties mutated in her name in Municipal records by furnishing incorrect information about her service and residence, and that the mutation was later cancelled at the plaintiffs' instance. The respondents opposed the application, arguing that the practice of calling the adversary as own witness had been deprecated by the Privy Council, by Paragraph 229 of the Bombay High Court Civil Manual, and by Pirgonda Hongonda v. Vishwanath Ganesh. They emphasized that the defendants had filed a joint written statement and defendant No.1 had already testified. They distinguished Ramdas on the ground that the witness there was an employee of the bank not representing it, and contended that M/s. Ravalnath had not properly distinguished Pirgonda. The respondents also relied on Suresh Sahebrao Tawale v. Uttam Shankar Ghadge in which a similar trial court order was quashed and set aside. The High Court, per Mangesh S. Patil J., considered the submissions and examined the cited decisions. It observed that the suit was for general partition and separate possession and that there was room to doubt whether the facts sought to be established through Sunita's examination were relevant for a just decision. The court noted that unlike Ramdas, Sunita was a co-defendant who had appeared along with other defendants and filed a joint written statement disputing the claim. The court traced the long-standing disapproval of calling the adversary as one's own witness, noting that Pirgonda Hongonda had concluded that a party was not entitled to call its adversary as its own witness. The court found that Ramdas was distinguishable on its peculiar facts, and M/s. Ravalnath merely relied on Ramdas without distinguishing Pirgonda. Consequently, the court held that it had to follow Pirgonda and the later decision in Suresh Sahebrao Tawale. It found no error in the impugned order rejecting the application. The writ petition was dismissed, the rule was discharged, and the pending civil application was disposed of.
Headnote
A) Civil Procedure - Witness Summons - Calling Adversary as Own Witness - Code of Civil Procedure, 1908, Order XVI Rule 1, Rule 21 - The trial court rejected an application by the plaintiffs to summon a co-defendant as their own witness in a partition suit; the High Court upheld the rejection, holding that a party is not entitled to call its adversary as its own witness and that the practice has been deprecated by the Privy Council and High Courts; Held: no error in the impugned order and the petition was dismissed (Paras 11-13). B) Civil Procedure - Relevancy of Evidence - Suit for Partition - Code of Civil Procedure, 1908, Order XVI Rule 1 - The petitioners sought to examine respondent No. 5 to prove that she got a mutation in her name by misrepresenting identity and residence; the court found there was room to doubt whether such facts would be relevant for just decision of a suit for general partition and separate possession; Held: the trial court's view on relevancy was not erroneous (Paras 9-10). C) Precedent - Distinguishing Case Law - Exception of Non-Party Witness - Code of Civil Procedure, 1908, Order XVI Rule 1, Rule 21 - The decisions in Ramdas Dhondibhu Pokharkar and M/s. Ravalnath Builders were distinguished because in Ramdas the witness was an employee of the bank and not a party, called to prove a document; M/s. Ravalnath did not distinguish Pirgonda Hongonda; the court followed Pirgonda Hongonda and Suresh Sahebrao Tawale which deprecated the practice; Held: the order rejecting the application was legal (Paras 10-12).
Issue of Consideration
Whether a party to a suit can summon an opposite party as its own witness under Order XVI Rule 1 and Rule 21 of the Code of Civil Procedure, 1908; whether the trial court committed an error in rejecting the application to call respondent no.5 as a witness to prove alleged misrepresentation in municipal mutation in a partition suit
Final Decision
The Writ Petition was dismissed; the Rule was discharged; the pending Civil Application was disposed of. The High Court upheld the trial court's rejection of the application for witness summons, holding that a party is not entitled to call its adversary as its own witness and that the trial court's order suffered from no error.
Law Points
- A party is not entitled to call its adversary as its own witness
- practice of calling adversary as own witness deprecated by Privy Council and High Courts
- Order XVI Rule 1 and Rule 21 of Code of Civil Procedure 1908 do not permit calling adversary as own witness
- exceptional circumstances of non-party employee to prove document distinguished
- relevancy of evidence in suit for partition assessed
