The main legal point established in the judgment is the applicability of Order XVI of the Civil Procedure Code, the discretion of the court to permit a party to call a witness, and the inherent power of the court to call any witness at any stage.

A.S. OKA, J.

1. Heard the learned counsel appearing for the appellant and the learned counsel for the respondent Nos.1 to 3 as well as the learned counsel for the respondent No.5. Other respondents are not necessary parties for deciding the controversy which arises in this Appeal. By the order dated 10th September 2018, the parties were put to notice that the Appeal will be taken up for final disposal at admission stage.

2. By this Appeal, the appellant who is the first defendant has impugned the order dated 19th April 2018 passed by the learned Single Judge. The respondent Nos.1 to 3 are the original plaintiffs. For the sake of convenience, we are referring the parties as plaintiffs and defendants. The impugned order has been passed on Judge's Order taken by the appellant-first defendant. The prayer in the Judge's Order was to issue a direction to the learned Prothonotary and Senior Master to issue witness summons (a letter of request) to one Ms. Manjit Ananandani who is a resident of USA. There is an affidavit in support filed by the first defendant in support of the Judge's Order setting out the reasons as to why it is necessary to issue a witness summons/a letter of request to the said witness. By the impugned order, the learned Single Judge dismissed the Judge's Order. The reasons recorded by the learned Single Judge for dismissing the Judge's Order are mainly in paragraphs 3 to 5 which read thus :

“3. The present Judge's order is by Defendant No.1A, and in my view it is not only thoroughly misconceived but a practice of Advocates that has been deprecated time and again, of one party calling as his own a witness of the opposite party.

4. The Judge's Order seeks the issue of a letter of request to Manjit and for directions for her cross-examination by video conferencing. Even if I was inclined to pass an unguarded order for cross examination by video-conferencing, which I am not and never have been, for I believe that sufficient safeguards and protocols must be put in place to avoid future controversies and a possible disruption of the integrity of the trial, this concept that just because one party has not led evidence of a named witness, therefore it is open to the opposite party to call that very person is entirely incorrect and erroneous. It is a practice that has been deprecated by courts over and over again. If the Plaintiffs listed Manjit as a witness and then did not call her, it is always open to the Defendant No.1A or any of the Defendants to submit that the best evidence was not led, was kept from the Court and that an adverse inference must follow. This is, however, no justification for calling the witness of opposite party whose evidence was not taken. This way lies only complication. I have very little doubt that the moment such an order is passed an application will be made, also incorrectly and without basis in law, that Manjit must technically be declared hostile and, therefore, permission must be granted to the Defendant No.1A to cross-examine the very witness to whom the Defendant No.1A herself sought to issue a letter of request. This is also an incorrect practice.

5. In my view, this entire practice is untenable and misconceived.”

(underline supplied)

3. In paragraph 2, the learned Single Judge noted that during course of the cross examination of the first plaintiff, he stated that he would be leading evidence of the said witness who happens to be his sister. The learned Judge also noted that the name of the same witness appears in the list of witnesses furnished by the plaintiffs but the plaintiffs did not call her as a witness.

4. The submission of the learned counsel for the first defendant in support of the Appeal is based on two decisions of the learned Single Judges of this Court in the case of Ravalnath Builders Vs. Sebastiano Escolastica Beatriz Nunes Mendosa, 2012 (2) Bom.Cases Reporter 403 and Chandrabhan R. Singh Vs. Prabhakar R. Desai, 2009 (2) Bom.C.R. 915.

5. His submission is that after