The main legal point established in the judgment is that the Code of Civil Procedure, 1908 does not permit calling the other party to the suit only for the purpose of cross-examination and condemns the practice of calling the defendant by the plaintiff as his witness.

ORDER :

1. This petition is filed under Article 226 and 227 of the Constitution of India challenging the order passed below Exhibit- 284 dated 01.01.2022 passed by 9th Additional Senior Civil Judge, Gandhinagar, in Special Civil Suit No. 136 of 2008, whereby the application Exhibit-284 praying for a direction by the Court to defendant No. 3 for the purpose of cross-examining him on a particular day by issuing summons, came to be rejected. Since controversy involved in this case is in a narrow compass and on a particular issue whether any party to the suit can request the Court to direct the other party to offer himself for the purpose of cross-examining him or not detailed discussion of a case before the lower Court as prayed for in the suit and other details are not necessary to be narrated in this decision.

2. Heard Mr. Rasesh S. Sanjanwala, Senior Advocate learned Counsel, assisted by Mr. Nikunt K. Raval, learned advocate for the petitioner.

2.1 He has submitted that as provided under Order X Rule 2, Order XV Rule 6 and Order XVI Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”), any party to the suit can request the Court to call other party for the purpose of cross-examination by the party calling him.

2.2 He has further submitted that party to a proceeding can always call other party for the purpose of examination. Drawing attention of the Court to the provisions made under Rule 1 of Order XVI of “the Code”, he has submitted that there is no prohibition therein that the party to a suit cannot be called as a witness for the purpose of cross-examining him by the other party.

2.3 He has further submitted that, in the suit, defendant No. 2 has examined himself and his examination is over, including the cross-examination. The defendant Nos. 1 and 3 have not given an examination-in-chief on oath.

2.4 He has further submitted that vide Exhibits-228 and 230 for the purpose of cross-examination of defendant Nos. 1 and 3, an application was given which was rejected by the Court and against that order, Special Civil Application No. 9866 of 2018 came to be filed before this Court, wherein a statement was made on behalf of respondents – defendants that the examination-in-chief on oath filed by the defendant No. 2 would be considered as evidence on his behalf alone and it would not be considered as evidence tendered by defendant Nos. 1 and 3. Therefore, the said petition came to be disposed of.

2.5 It is further submitted that defendant No. 3 is also a competent witness to be examined and as the plaintiff had a financial transaction and agreement with him, considering the pleadings, he is required to be examined before the Court. Though the prayer made in the application Exhibit-284 is requesting the Court to direct the defendant No. 3 to offer himself for the purpose of cross-examination, it is only for the purpose of examining him being a party to the proceedings.

2.6 In support of his submissions, he has relied on a decision in the case of Syed Yasin v. Syed Shaha Mohd. Hussei, reported in AIR 1967 Mysore 37 to submit that there is no provision in “the Code” or in the Evidence Act, which prohibits a party from calling any person and examining him as “his” witness. Therefore, the Court below was bound to summon the plaintiff as a witness on behalf of the petitioner in the said case. After referring the order of Privy Council, which prohibits summoning of opposite side for examining on their behalf, ultimately Court permitted other party to the suit to be examined as witness on behalf of the calling party.

2.7 Reliance was placed on another decision in the case of Sri Awadh Kishore Singh and another v. Sri Brij Bihari Singh and others, reported in AIR 1993 Patna 122, again for the same principle that any party to the proceedings may call for other party as a witness on his behalf.

Referring to para 16 therein, it is submitted that no party is debarred from examining its adversary as a witness on his b