1. Heard.

Rule. Rule made returnable, heard finally with the consent of Counsel for parties.

2. Learned Counsel appearing for the petitioner submits that, by way of impugned order the original defendant no.4 is summoned / called as witness of the plaintiff. It is submitted that there is no any enabling provision to call the defendant as a witness of the plaintiff. Learned Counsel appearing for the petitioner invited my attention to the exposition of Lahore High Court in the case of BiramDas v. Mangal Singh and others (A.I.R. 1929 Lahore 868 (2) wherein the said Court has taken a view that, the practice allowing parties to examine each other as witnesses on its own behalf is objectionable. Learned Counsel further invited my attention to the reported judgment of Privy Council, in the case of MahuntShatrugan Das vs. Bawa Sham Das and others ( A.I.R.1938 Privy Council 59) and also the judgment of High Court of Jammu and Kashmir in the case of GandaMal v. Bhulloo Ram (A.I.R. (38) 1951 Jammu & Kashmir 5), reported judgment of the Mysore High Court in the case of Mallangowdaand others vs. Gavisiddangowda and another ( AIR 1959 MYSORE 194 ( V 46 C 80), and further the judgment of this Court in the case of RamdasDhondibhu Pokharkar vs. State Bank of India and another ( 2003(1) ALL MR 76), and PirgondaHongonda v. Vishwanath Ganesh and others ( AIR 1956 Bombay 251 ( V 43 C 104 April) to contend that the practice of calling defendant by plaintiff as witness is condemnable. Learned Counsel for the petitioner further submits that, there are no any specific reasons assigned by the trial Court for calling defendant no.4 as a witness of the plaintiff. It is submitted that the evidence of the plaintiff and also the defendants is closed. Evidence Close Purshis are filed by the plaintiff as well as the defendants and, therefore, at that stage, it was not necessary for the trial Court to call the defendant no.4 as a witness of the plaintiff. It is always open to the Court to draw adverse inference if the defendant does not step in the witness box in pursuance to filing of written statement. Therefore, Counsel for the petitioner submits that the petition may be allowed.

3. On the other hand, learned Counsel appearing for all the respondents has tendered across the Bar affidavit in reply. Relying upon averments in the affidavit in reply, Counsel for the respondents submits that, though defendant no.4 has filed the written statement, he did not enter in the witness box to depose.Therefore, an application was filed for calling defendant no.4 as witness of the plaintiff. Accordingly, application filed by the respondents was allowed and the defendant no.4 was called as a witness of the plaintiff. Learned Counsel for the respondents pressed into service the judgment of the Patna High Court in the case of Sri Awadh Kishore Singh and another vs. Sri Brij Bihari Singh and others ( AIR 1993 PATNA 122) and judgment of this Court in the case of Ramdas Dhondibhu Pokharkar (supra), and more particularly paragraph no.5 of the said judgment. Therefore, relying upon the averments in the affidavit in reply and the afore mentioned two expositions of Patna High Court and of this Court, Counsel appearing for the respondents submits that the writ petition is devoid of any merits and same may be dismissed.

4. I have given due consideration to the rival submissions. Upon careful perusal of the impugned order, it appears that, the trial Court has not given detailed and cogent reasons why the defendant no.4 is required to be summoned as a witness of the plaintiff. It is not in dispute that the evidence of the plaintiff and, so also that of the defendants, is closed, and they have filed evidence close Purshis.

5. As rightly contended by the Counsel for the petitioner the Privy Council, in the case of MahuntShatrugan Das (supra), has held that the practice of calling the defendant, as a witness to give evidence on behalf of the plaintiff, is condemnable. In such a c