contesting
defendaNt IN A SUIT as plaintiff witness: permissibility
Generally
in a suit plaintiff sets out his case, conversely, the defence is set out by
defendants. Both of the contesting parties shall rely upon their documents and
witness. Therefore, it follows that the plaintiff shall not rely upon a
defendant or defendants as witness and vice versa. No doubt, there may be
official defendants who may not have a direct lis in a matter and as such not
contesting, but as they may have to prove some official record and may have to
testify, therefore, the situation of such defendant shall be different. Thus,
what follows is that whether a contesting adverse party can stand as a witness
of other party. In other words, whether a plaintiff can appear as defendant
witness and still further whether a contesting defendant can appear as a
plaintiff witness. There may be another situation, such as a defendant is
already proceeded ex-parte, whether such a defendant can be a plaintiff
witness? Still further, if the defendant does not appear after service of
summons even once or of the defendant appears and files written statement, and
thereafter a defendant is proceeded ex-parte. Whether such a defendant who is
already proceeded ex-parte can appear as a plaintiff witness, if he opted to do
so, is a moot point. It may appear ex
facie why should a plaintiff be entitled to examine a defendant as his own
witness or vice versa. The court dockets are full of such quagmire consuming a lot of judicial time and relegating interest
of a party to the lis to peril. . Therefore, it is endeavoured herein to
iterate, reiterate and reaffirm the legal position. Thus, the prescriptions of
Code of Civil Procedure and judicial precedents in this regard are required to
be pondered over for conclusion.
Order
XVI of Code of Civil Procedure relates to summoning of witnesses. Therefore
before going further, it may be apt to reproduce the said Order and rules
thereunder:
Order 16 CPC
1. List
of witnesses and summons to witnesses
(1) On or before such date as the Court may appoint, and not later than fifteen
days after the date on which the issues are settled, the parties shall present
in Court a list of witnesses whom they propose to call either to give evidence
or to produce documents and obtain summonses to such person for their
attendance in Court.
(2) A party desirous of obtaining
any summons for the attendance of any person shall file in Court an application
stating therein the purpose for which the witness is proposed to be summoned.
(3) The Court may, for reasons to
be recorded, permit a party to call, whether by summoning through Court or
otherwise, any witness, other than those whose names appear in the list
referred to in sub-rule (1), if such part shows sufficient cause for the
omission to mention the name of such witness in the said list.
(4) Subject to the provisions of
sub-rule (2), summonses referred to in this rule may be obtained by the parties
on an application to the Court or to such officer as may be appointed by the
Court in this behalf within five days of presenting the list of witnesses under
sub-rule (1)].]
1A. Production of witnesses
without summons:
Subject to provisions of Sub-Rule (3),
any party to the suit may, without applying for summons under Rule (1), bring
any witness to give evidence or to produce documents.
Thus, the defendant or any one of
the defendant may be listed in the List of Witness filed by the plaintiff and
vice versa. There may also be a situation, where from a court permission is
sought for examining defendant as plaintiff witness without earlier featuring
the name of a defendant as plaintiff witness.
RELIANCE:
The
Supreme Court in Vidyadhar Vs Manikrao & Anr AIR 1999 SC 1441 has held as under
in para 27:
27. In order to prove
his case, the plaintiff has examined defendant no.2 as a witness who admitted
to have executed the sale deed in favour of the plaintiff and further admitted
to have received entire amount of sale consideration. The high court has
adversely commented upon the production of defendant no.2 as a witness by
saying as under:
“Next witness
examined by the plaintiff was defendant no.2. The plaintiff, while examining
the witness, has not incorporated the name of the witness in the list of
witness nor any application was made for the examination of defendant no.2. The
willingness of defendant no.2 was also not placed on record, to appear as a
witness for the plaintiff”.
28.
This is wholly erroneous view.
The
Supreme Court had also referred to Rule 1 A which allows production of
witnesses without summons. The said provisions are as under:
In
para no.31 of the Vidyadhar (Supra) the
Supreme Court has thus held:
31.
These two Rules read together clearly indicate that it is open to a party to
summon the witness to the Court or may without applying for summons , bring the
witnesses to give evidence or to produce documents. Sub-Rule (3) of Rule 1
provides that although the name of a witness may not find place in the list of
witness filed by a party in the Court, it may allow the party to produce a
witness though he may not have been summoned through the Court. Rule 1 A which
was introduced by the CPC (Amendment) Act 1976 w.e.f 1.2.1977 has placed the
matter beyond doubt by providing in clear and specific terms that any party to
the suit may bring any witness to give evidence or to produce documents…”
The
Supreme Court has further held in para 32 that:
32. In view of the above, even
though, the name of defendant no.2 was not mentioned in the list of witnesses
furnished by the plaintiff, he was properly examined as a witness and his
testimony was not open to any criticism on the ground that he was produced as a
witness without being summoned through the court as without his name being
mentioned in the list of witnesses.
What
thus follows in clear term is that, even if the name of the defendant who is to
be examined as a plaintiff witness is not named in the list of witness and no
permission or leave of the court is sought in this regard, still further, even
if willingness of the witness is also not disclosed, then too, plaintiff could
not be precluded from examining a defendant as its own witness, merely on the
premise that the defendant by implication is opposite party. The hon’ble
Supreme Court has held that as contrary to the provisions of Order 16 Rule 1-4
of Code of Civil Procedure.
The
Delhi High Court in a matter
captioned as Atul Kumar Singh Vs Nitish Kr & Ors 265
(2019) DLT 161 has summed in para 30
1.
Order4 XVI of the Code, which
deals with the summoning of the witness does not bar one party from applying
for the examination of other as his witness.
2.
..
3.
The Rule is if the grounds are
made out for summoning of witness, he will be called not if the demand is
belated, vexatious or frivolous
7.
Strong evidence needs to be
adduced by the other party opposing a application for summoning of witness to show
that it is not bona fide and granting of such application shall be permitting
an abuse of the process of the Court.
8.
The Summoning or examination of
an opposite party of a suit must be allowed by the Court only in the rarest of
rare cases when it is unavoidable in the interest of justice”
The
Madras High Court in a matter
reported as V.K Periasamy Vs F Rajan AIR 2001 Mad 410 has held on
similar line in paragraph 8:
8.
Therefore, it is apparent that the contest is only between the petitioner and
the respondent. It is also relevant to note the provisions of Order 18 , Rule
2, C.P.C. The parties before the Court therefore have a right to adduce
evidence on their behalf. In fact, when there are several defendants and some
of them support the case of the plaintiff, it has been held that Court cannot
shut out their evidence and they are entitled to adduce evidence in their turn
as a matter of right. Of course, the procedural formality requires that the
order in which the evidence is to be taken is that first, the plaintiff and those
defendants who support his case must address the Court and call their evidence
and then other party i.e the other defendants should address the Court. In this
case, the first defendant cannot be strictly called the other party, because he
has consented to the rights of the plaintiff and it is also the case of the
respondent that he alone is challenging the right of the petitioner….”
Further
in para 21 in V.K Periasamy (Supra)
in paragraph 12 it is held that:
12.
If there was a total bar on the right of a party to summon another party to
give evidence as a witness, Order 16 Rule 21 will not find a place in the
Code.. The inclusion of this provision itself shows that there may be situation
where a party may be called upon by another to give evidence as the latter’s
witness…”.
The
Karnataka High Court in M.C Anand & Anr Vs M.C Chikanne &
Anr AIR 2001 kant 139 has held that:
8.
So, no doubt, this rule indicates that a party to the suit may be required and
a party may be entitled to required any other party to the suit to give
evidence, or to produce the documents and the Court below appears to have
proceeded on mistaken notion that a party to the suit is not entitled subject
to the power and permission of the Court to summon or to examine the opposite
party.. The expression “any other party thereto” is indicative of the party to the
suit or to say party other than summoning the party which may include the opposite
party. In other words, the plaintiff may summon the defendant as a witness and
require him, to produce the documents. Similarly, the defendant may summon the
plaintiff as held by this court in Syed Yasin case....”
The Patna High Court in Sri Awadh Kishor Singh
& Anr vs Sri Brij Bihari Singh & Ors AIR 1993 Pat 122 has held that
plaintiff can examine one of the defendant as witness in following words:
16.
Now, I proceed to consider the merit of the impugned order. By the impugned
order, the plaintiffs have been debarred from examining defendant No.2 as a
witness on their behalf, as no order was passed by the trial court for acceptance
of written statement filed by this defendant. No provision could be brought to
our notice on behalf of any of the parties to show that a party is debarred
from examining its adversary as a witness on his behalf. A plaintiff can
examine any witness he so likes-the witness may be a stranger, may be a man of
his own party or party himself or may be defendant or his man. Therefore, 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 statement nor prayer for
filing written statement is rejected…”
The
Kerala High Court In a
matter reported as Kumara Pillai vs Thomas AIR 1961 Ker 287 the aspect
of examining a defendant who may be ex-parte is dealt with. It is held that:
The decision of Wallaee, J., was followed by Staples, A, J. C., in
AIR 1931 Nag. 122. The learned Judicial Commissioner has pointed out the
remedies open to a party who failed to appear at the first hearing and against
whom an order declaring him ex parte has been passed. The following passage
from his judgment may be extracted:
"........ ....Order 9, Rule 6, is not
meant to be a penal clause but is only meant to prevent undue delay. If the
defendant chooses not to appear after he has been served, the court may proceed
in his absence, but if he subsequently appears he ought not to be debarred from
taking any further Part in the proceedings even if he can show no good cause
for his absence: all that the Code says in Order 9, Rule 7, is that, if he does
show good cause, the ex parte order may be set aside and the defendant heard in
answer to the suit, as if he had appeared on the date fixed. That means that
the case is put back to the stage at which it had arrived when the defendant
first failed to appear; and the defendant
suffers no loss or disadvantage through his non-appearance except
perhaps an order for costs. If however the defendant fails to show good cause,
he cannot claim any rehearing, and what has already taken place in his absence
must stand. As regards future proceedings however he should not he debarred
from appearing and contesting the suit.
The case of an ex parte decree is of course different, because
there the suit has been heard and has been finally decided. It would be
inequitable then to reopen the matter unless the defendant can show good cause
for his non-appearance. Where however a case is still sub judice, the defendant
should not, I think, be further prejudiced by his absence than by the fact that
all proceedings that took place in his absence will stand and he should be
allowed to take part in future proceedings and to defend the case. An ex parte
order does not in itself mean that the defendant shall be debarred for ever
from taking all Part in the trial: all it means is that the trial shall proceed
in his absence and that anything that takes place in his absence shall hold
good.
CONCLUSION
It
has been observed that objections are raised before trial courts as regards the
feasibility of examining the opposite party as witness on the premise that it
is a mandate of law that any opposite party shall not stand against his own
case. The valuable time of Courts and the party who is seeking expeditious
judgment /decree are thus lost owing to such objections. It is clearly
demonstrated above that not only the opposite party can be summoned as a
witness, but even without summon, he can be examined, if that may be necessary
for proving the case of a plaintiff or the opposite party. It is to be
reiterated that provisions of Order 16 Rule 1 (1), (2) (3) & (4) and Rule
1A of Code of Civil Procedure, clearly stipulates that a party to the lis is
entitled to examine any witness and no fetter could be attached thereto. The
Rule 1 A further makes it abundantly clear that even without applying for
summons the opposite party can be examined as a witness. What also may be
apparent from the aforesaid discussion that even if a defendant is proceeded
ex-parte and thereby, he may be precluded from participating in the said
proceeding, then too, there is no bar in the said defendant appearing as
plaintiff witness. The inability to join proceeding as a defendant is one thing
and appearing in the capacity of plaintiff’s witness is different and
therefore, there can be no embargo on the defendant in appearing as plaintiff’s
witness, even though, he is proceeded ex-parte. Moreover, it is to be borne in
mind that any ex-parte proceedings can always be set aside, if reasonable cause
could be shown in that regard and therefore, if a party is proceeded ex-parte
that in itself shall not operate as a bar to the party either for seeking
setting aside of that order or for appearing as plaintiff’s witness as
elucidated above. The judgments of hon’ble Supreme Court and various high
courts referred to and the ratio specified in italics shall demonstrate that.
--------
Anil
K Khaware
Founder
& Senior Associate
Societylawandjustice.com
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