BADAR DURREZ AHMED, J(ORAL)

1. This application has been filed by the plaintiff for summoning of three witnesses who have been listed as PW-II, PW-III and PW-IV. PW-II (Mr Mike Ashley) is the sole shareholder of the defendant No.1 (M/s Sportsworld International Limited). PW-III (Mr Justin Barnes) is the defendant No.2 and PW- IV (Mr Peter Barnes) is the defendant No.4. It is an admitted position between the parties that PW-III, Mr Justin Barnes and PW-IV Mr Peter Barnes are both partners of defendant No.6. Mr Justin Barnes is also the CEO and owner of defendant No.3.

2. The controversy between the parties is that the plaintiff, who is an advocate, was engaged for services to be rendered to defendant No.1. The case of the plaintiff is that his dues on account of professional fees have not been cleared by the defendants. Apart from this, the plaintiff has also claimed damages from the defendants. The case of the defendants is that the defendant No.6, which is an international firm of trade mark attorneys and had been looking after the interests of Defendant No.1, had dealt with the plaintiff for the purposes of filing oppositions in respect of certain trade mark applications in India. The said oppositions were to be filed by the plaintiff in respect of the trade marks of the defendant No.1. It is also pertinent to note that initially the plaintiffs services had been engaged on behalf of Dunlop Slazenger Group Limited. The latter company was acquired by the defendant No.1 in 2001. Mr Mike Ashley, who is sought to be summoned as one of the witnesses, is the sole shareholder of the said defendant No.1 company. It is pointed out by counsel appearing on both sides that initially, the plaintiff had been engaged by the Dunlop Slazenger Group Limited. Subsequently, on the acquisition by the defendant No.1, the plaintiff was dealt with, on behalf of the defendant No.1, by defendant No.6. The arrangement was terminated by the defendant No.6 sometime in June, 2006 and another firm of lawyers was appointed to represent the interests of the defendant No.1. The said termination and appointment of the fresh set of attorneys was done by defendant No.6 acting for on behalf of the defendant No.1.

3. These are the background facts. Mr Amitabha Sen, who is the plaintiff and has appeared in person, submits that there is no bar to calling any person as a witness so as to bring out the truth in the case. He referred to various decisions. The first decision referred to by him was the case of Sardar Gurbakhsh Singh v. Gurdial Singh and another: AIR 1927 Privy Council 230. This case was referred to by him to highlight the fact that some times a party adopts a manoeuvre whereby the party does not call essential witnesses but endeavours to force the other party to call them and so suffer the discomfiture of having them treated as their witnesses. He submitted that in this decision, the Privy Council has deprecated such a practice. He submitted that the defendants were adopting such a procedure and manoeuvre by not calling Mr Mike Ashley and Peter Barnes as their witnesses. Insofar as Mr Justin Barnes is concerned, he has been cited as a witness on behalf of the defendants and, therefore, this application insofar as Mr Justin Barnes is concerned, does not survive. The plaintiff would have the right to cross-examine the said witness.

4. The next decision referred to by Dr Sen was Salem Advocate Bar Association, T.N. v. Union of India: (2003) 1 Supreme Court Cases 49. The following passage was referred to. “17. In Order 18, Rule 4 has been substituted and sub-rule (1) provides that in every case examination-in-chief of the witnesses shall be on affidavits and copies thereof shall be supplied to the opposite parties by the party who calls them for evidence. It was contended by Mr Vaidyanathan that it may not be possible for the party calling the witness to compel the witness to file an affidavit. It often happens that the witness may not be under the co