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In the High Court of Bombay at Goa
F.M. REIS, J.
M/s Ravalnath Builders
Versus
Mrs. Sebastiana Escolastica Beatriz Nunes Mendonsa @ Beatriz Mendonca
WRIT PETITION NO. 403 OF 2012
Decided on : 18-06-2012
Civil Procedure Code, 1908 - Order XVI, Rule 21 - Summoning opposite party - There is no bar for a party to call his opponent as a witness in suit.
Constitution of India - Articles 226 and 227 - Writ petition - Challenging order dated 15.2.2011 of Civil Judge (S.D.) - An application filed by petitioner to examine opposite party/respondent in suit came to be rejected - Contention, that after amendment of CPC in 1996, no bar in law to call opposite party as a witness in suit and relied upon judgment, 2009 (2) Bom CR 915.
Held - Civil Judge erred in rejecting application of petitioner - Not justified in holding that practice of calling opponent as his own witness is to be condemned - There is no bar for a party to call his opponent as a witness in suit - Impugned order quashed and set aside - Application filed by petitioner to examine respondent as his witness allowed - Petition disposed of.
There is no bar for a party to call his opponent as a witness in the suit. As such, the Judge was not justified to refuse the application filed by the petitioner on the sole ground that such practice is to be condemned. As such the Judge fell in error in rejecting the application of the petitioner.
Considering the contention of the senior counsel for the respondent, as the fact that the respondent is of old age and has a fragile health is not disputed, a Commissioner is to be appointed to record the evidence of the said witness. The fees of the said Commissioner shall be borne by the petitioner. The Commissioner shall accordingly proceed to record the evidence of the respondent, in accordance with law.
Heard Shri A. R. Kantak, learned Counsel appearing for the petitioner and Shri M. B. Da Costa, learned Senior Counsel appearing for the respondent.
2. Rule. Heard forthwith by the consent of the learned Counsels.
3. Shri J. A. Lobo, learned Counsel waives service on behalf of the respondent.
4. After hearing the matter for some time, the following order is passed by consent. It is submitted by Shri Kantak, learned counsel appearing for the petitioner that Shri Ramani, who was appointed as a Commissioner has disclosed his inability to go on with the commission.
ORDER
(i) Shri Sudin Usgaonkar, Advocate present in Court is appointed as a Commissioner to record the evidence of the respondent at her residence.
(ii) The Commissioner's fees shall be borne by the petitioner.
(iii) Before proceeding with the examination of the respondent, the Head of Department of E.N.T., Goa Medical College, Dr. C. P. Das shall remain present before the recording of the said evidence and in case of his inability any senior E.N.T. doctor from the Department designated by him shall remain present at the residence of the respondent and certify as to whether the respondent has disability to hear and also opine whether she is able to hear with the help of the hearing aid/ear phone. The expenses of the said doctor shall be borne by the petitioner.
(iv) In case such doctor certifies her capability to do so, the Commissioner shall proceed to record the evidence of the said respondent in accordance with law.
(v) By consent, the date for recording of such evidence is fixed on 07.07.2012 at 10.00 a.m. or any other date as per the convenience of the Commissioner and the said doctor.
(vi) The impugned order dated 09.05.2012 is modified accordingly.
(vii) Rule is disposed of in above terms.
(viii) The petition stands disposed of accordingly.
(ix) Parties as well as the Commissioner and the said doctor shall act on the authenticated copy of this order.
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