JUDGMENT

1. Leave granted.

2. Whether the respondents (defendant Nos.5 and 6 in the suit filed by the appellants), could cite the advocate representing the appellants as a witness in the list filed under Order XVI Rule 1 (1) and (2) read with Section 151 of the Code of Civil Procedure (CPC) without giving an iota of indication about the purpose of summoning him in future is the question which arises for consideration in this appeal filed against order dated 24.02.2010 passed by the learned Single Judge of the Karnataka High Court whereby he set aside the order passed by the trial Court partly dismissing the application of the respondents.

3. Appellant Nos.1 to 3 and one Parvathy filed suit, which came to be registered as O.S. No.75 of 1996, for partition and separate possession of 1/6th share each in the suit property and also for grant of a declaration that sale deed dated 10.7.1997 executed by defendant Nos.2 to 4, who were, later on, transposed as plaintiff Nos.5 to 7 (appellant Nos.4 to 6 herein), was not binding on them. Defendant Nos.5 to 7 (including respondent Nos.1 and 2 herein) filed written statement on 19.2.1998. Respondent Nos.1 and 2 filed additional written statement on 9.8.2002. After two years and seven months, they filed an application dated 11.3.2005 under Order XVI Rule 1 (1) and (2) read with Section 151 C.P.C. supported by an affidavit of respondent No.1 for permission to file the list of witnesses, which included the name of Shri N. Ravindranath Kamath, Advocate, who was representing the appellants in the suit from the very beginning.

4. The trial Court partly allowed the application of respondent Nos.1 and 2 and granted leave to them to file the list of witnesses but rejected their prayer for permission to cite Shri N. Ravindranath Kamath as witness No.1. The reasons assigned by the trial Court for partially declining the prayer of respondent Nos.1 and 2 are extracted below:

'......................While citing advocate of the opposite party as a witness, the defendants 3 and 4 ought to have given reason for what purpose they are citing him as a witness and examining him in their favour. Once the advocate for the opposite party is cited as a witness in the list, the opposite party losses precious service of his advocate. In that circumstances, the party will suffer. Under the circumstances, so as to know for what purpose the defendant no.2 and 3 are citing and examining the N.R. Kamath advocate for the plaintiff in their favour have to assign reason. The Court has to very cautious and careful while considering such an aspect of the matter of examining and citing the advocate for the opposite party in their favour. The Court has to determine as to whether the evidence of said advocate is material for the decision of the case or not? Unless defendant no.2 and 3 assigned reason in the application or in the affidavit as to why they are citing the advocate for the opposite party and examining in their favour, the application filed by defendant no.2 and 3 is not maintainable and the said application is not sustainable under law. In the above said Judgment, in para 2, it is clearly held that, 'but appellants then filed a petition seeking permission to cite the advocate of the respondents as a witness'. But herein this case, the defendant no.2 and 3 are not seeking permission to cite the advocate for the plaintiff as a witness. Defendant no.2 and 3 not only have to seek permission of this Court to cite the advocate for the Plaintiff as a witness, but also he has to give good reasons for what purpose he is citing him as a witness and examining in his favour. Without assigning any reasons and without seeking permission to cite the advocate for the Plaintiff as a witness in the witness list, application to that extent is not tenable and same is liable to be dismissed to that extent.'

5. The respondents challenged the order of the trial Court by filing a petition under Articles 226 and 227 of the Constitution insofar as