Jayaseelan vs Arulrajan, The District Collector and C. Narayanan

T.V. Masilamani, J.—The revision petitioner/plaintiff filed an application before the trial Court under Order 16 Rule 1 and Section 151 of

the CPC to summon the third respondent/third defendant as his witness and to give evidence in the pending suit. After hearing both sides, the

learned District Munsif dismissed the application holding that in view of settled position of law that the practice of a party causing his opponent to

be summoned as a witness has to be disapproved. Hence the revision petition.

Heard the learned counsel for the petitioner, Mr. N. Nithianandam and Mr. M. Sathyanarayanan, learned counsel for the third respondent.

Learned counsel for the petitioner has drawn my attention to the provisions under Order 16 Rule 21 of the CPC and cited the decision AIR

1967 Mys 37 (Syed Yasin vs. Saha Muhamad Hussain) in support of his contention that, to meet the ends of justice, it is necessary to summon the

third respondent as a witness of the revision petitioner so as to prove his claim for damages on the ground of malicious prosecution.

But, on the contrary, learned counsel for the respondent has contended that even though there is no specific bar to summon the third defendant

in the suit as a witness on the side of the plaintiff, the judicial precedents laid down in AIR 1938 59 (Privy Council) and Kaliaperumal Vs.

Pankajavalli and Others, are against such practice.

In this context, it is sufficient to quote the ratio laid down in Kaliaperumal Vs. Pankajavalli and Others, as under to dispose of the revision

petition.

Plaintiff wants the opposite party to be examined as their witness. According to the Court, such a practice has been deprecated by all Courts. In

view of the settled legal position, the Court does not think that the petitioner can compel the second defendant to be examined as witness for him.

In view of such settled legal principle and also having regard to the observation made by the Karnataka High Court in the decision cited by the

learned counsel for the petitioner himself viz., 1967 Mysore 37 supra, the revision petitioner can at best urge the trial Court to take adverse

inference against the third respondent who has refrained from examining himself as witness in support of his own case before the trial Court.

Therefore, I am of the view that with a direction to the revision petitioner to adopt the course as adumbrated in the decision referred to above, the

revision petition can be disposed of.

Accordingly, the revision petition is disposed of with the direction that the revision petitioner can at best urge the trial Court to take adverse

inference against the third respondent for his non-appearance and examination as a witness in support of his stand taken before the trial Court.

However, there is no order as to costs. The Trial Court is directed to afford an opportunity to the revision petitioner as well as the respondents to

mark necessary documents to the above limited extent only and dispose of the suit at an early date.