Case Note & Summary
The petitioner, M/s. Ravalnath Builders, a partnership firm, filed a writ petition challenging an order dated 15.02.2011 passed by the learned Civil Judge, Senior Division at Panaji, which rejected their application to examine the respondent, Mrs. Sebastiano Escolastica Beatriz Nunes Mendonsa, as a witness in the suit. The petitioner sought to examine the respondent as their last witness. The trial court relied on the judgment in Prigonda Hongonda vs. Vishwanath Ganesh (AIR 1956 Bom. 251) to hold that the practice of calling the opponent as one's own witness is to be condemned. The petitioner argued that after the 1996 amendment to the Code of Civil Procedure, 1908, there is no such bar, citing Chandrabhan R. Singh vs. Prabhakar R. Desai (2009(2) Bom. C.R. 915). The respondent opposed, contending that the petitioner delayed the suit and that the respondent was of old age and in poor health. The High Court, per Justice F. M. Reis, found that the trial court had not properly considered the submissions and had rejected the application solely on the ground that calling the opponent as a witness is to be condemned. The High Court referred to Ramdas Dhondibhu Pokharkar vs. State Bank of India (2003 (1) ALL M.R. 76), which held that Order XVI Rule 21 CPC provides that a party to a suit required to give evidence is subject to the provisions as to witnesses. The court also noted that the earlier view in Prigonda Hongonda has been overruled by subsequent decisions. The High Court allowed the petition, set aside the impugned order, and directed the trial court to permit the petitioner to examine the respondent as a witness, subject to the respondent's right to raise objections regarding her health or other grounds.
Headnote
A) Civil Procedure - Examination of Party as Witness - Order XVI Rule 21 CPC - The court considered whether a party can be called by the opposite party to give evidence. The High Court held that after the 1996 amendment to the CPC, there is no bar in law to call the adversary as a witness. The earlier view in Prigonda Hongonda vs. Vishwanath Ganesh (AIR 1956 Bom. 251) that such practice is to be condemned is no longer good law. The impugned order rejecting the application was set aside. (Paras 4-9)
Issue of Consideration
Whether a party to a suit can be compelled to be examined as a witness by the opposite party under Order XVI Rule 21 of the Code of Civil Procedure, 1908.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 15.02.2011, and directed the trial court to permit the petitioner to examine the respondent as a witness, subject to the respondent's right to raise objections regarding her health or other grounds.
Law Points
- Order XVI Rule 21 CPC allows a party to be examined as a witness
- no bar to calling opponent as witness after 1996 amendment
- practice of calling opponent as witness not to be condemned
