IMPORTANT POINT
A party cannot be compelled to testify against their own interests, and the court must exercise discretion in allowing the summoning of witnesses, particularly when there is a conflict of interest.

ORDER :

(Mummineni Sudheer Kumar, J.)

(Prayer: Petition filed under Article 227 of the Constitution of India to set aside the order dated 23.09.2019 in I.A.No.2 of 2019 in O.S.No.40 of 2016 on the file of the Court of the Subordinate Judge, Aruppukkottai.)

This civil revision petition is directed against an order dated 23rd September, 2019 passed in I.A.No.2 of 2019 in O.S.No.40 of 2016 passed by the Court of the Subordinate Judge, Aruppukottai.

2. The said application was filed by the respondents/defendants under Order XVI Rule 1(3) and Rule 21 read with Section 151 of the Civil Procedure Code to summon the 1st petitioner/plaintiff as D.W.2. The said application was allowed by the learned trial Court on the ground that this Court in the case of V.K.Periasamy alias Perianna Gounder vs. D.Rajan, AIR 2001 Mad 410 = (2001) 2 M.L.J. 235, held that there is no bar to examine the opposite side as a witness under the Civil Procedure Code. Except the said reason, there is no other reason assigned by the learned trial Court, while passing the order under revision. The basic facts that made the respondents herein to file the application in question were also not considered by the learned trial Court. Merely because there is no bar for filing such an application can never be a reason for allowing the said application calling upon the opposite party to give evidence on behalf of the other party. On this ground alone, the order under revision is liable to be set aside.

3. Learned counsel for the petitioners strenuously contended that Petitioner No.1 herein, who is Plaintiff No.1 has not chosen to enter the witness box and on behalf of her, Plaintiff No.2 was already examined as P.W.1. In case, if Petitioner No.1 herein is to be examined as D.W.2 on behalf of the respondents herein, learned counsel for the plaintiffs will be constrained to cross examine his own party, which is not the procedure that is contemplated under the provisions of the Civil Procedure Code. He also further contended that the provisions under Order XVI Rule 1 and Rule 21 of the Civil Procedure Code are only to enable the Court to examine any party, if the Court feels the same is necessary and it is not open for either parties to file application to summon the opposite party as their witness.

4. In support of his contentions, he also relied upon decisions in the cases of Varadharajan vs. Saravanan, 2003-2-L.W.731; Minor Arumugam alias Logesh represented by next friend and natural guardian mother, Samppornam vs. State Bank of India, (2005) 4 M.L.J. 239; and B.Rajeswari and another vs. B.Vinayagam and 2 Others, 2010 (1) MWN (Civil) 403.

5. On the other hand, learned counsel appearing for the respondents contended that the suit was filed for partition and Petitioner No. 1 herein did not choose to enter witness box. As the respondents herein intended to rely upon a registered settlement deed executed by their mother for which the petitioners herein are the attesting witnesses and in order to confront them with their signatures, the examination of P.W.1 is very much necessary. He also further contended that the order under revision is perfectly valid and the same is permissible in the light of the order passed by this Court in the case of V.K.Periasamy alias Perianna Gounder vs. D.Rajan, [AIR 2001 Mad 410 = (2001) 2 M.L.J. 235].

6. This Court has carefully considered the submissions made on either side and also perused the entire material on record.

7. The petitioners herein filed O.S.No.40 of 2016 seeking partition of the suit schedule properties. The petitioners herein are the daughters and respondents are the sons of Sundaramoorthy and Mookkammal. The suit schedule property is the property, which was purchased by their mother under a registered sale deed dated 29.11.1985. According to the petitioners, the dispute is with regard to the said property. The petitioners are claiming partition of the same. Whereas the respondents herein claim that the said property was settled in