Examination of adverse party as witness can be allowed based on specific circumstances and legal principles, despite condemnation by Privy Council.

P. K. TRIPATHY, J.

( 1 ) PLAINTIFF in title Suit No. 41 of 1998 of the Court of Civil Judge (Sr. Division), Parlakhemundi has preferred this Civil Revision under S. 115 of the Code of Civil Procedure, 1908 (in short 'the Code') as against the order passed on 21-9-1999 by the trial Court. It appears from that order that plaintiff's application under Order 16, Rule 21 of the Code to summon the defendant No. 2 to depose in the case as a witness on behalf of the plaintiff was rejected on the ground that such a practice has been condemned by the Privy Council as per the commentaries in the Indian Evidence Act by Sarkar 13th Edn. page 1395 and 1396.

( 2 ) IT was stated at the bar that plaintiff has brought the suit for partition against his two surviving brothers and the legal representatives of one deceased brother. Along with the relief of partition plaintiff has also claimed for other reliefs, with respect to the suit properties. Defendant No. 2 filed a written statement inter alia advancing plea of previous partition. In course of hearing of the suit plaintiff tendered his evidence both oral and documentary and closed his case. In course of adducing of evidence by the defendants defendant No. 2 did not appear as a witness. Since the defendant No. 2, as believed by the plaintiff, is to depose about the truth on the issue of partition, therefore, he filed the application under Order 16, Rule 21 of the Code seeking issue of summons to defendant No. 2 to appear as a witness and to permit him (plaintiff) to examine that witness. The defendants opposite party members opposed to that prayer inter alia stating about the physical incapability of the defendant No. 2 to appear and depose.

( 3 ) LEARNED Civil Judge (Sr. Division) took note of the report submitted on 30-8-1999 by the Advocate Commission who had been deputed to record the evidence of defendant No. 2 on behalf of the defendants. Besides that learned civil Judge (Sr. Division) also referred to the commentaries on Evidence Act by Sarkar and the provision in Order 16, Rule 21 of the Code besides the decision reported in AIR 1993 Patna 122, (Awadh Kishore Singh v. Brij Bihari Singh) and notwithstanding the ratio of the Division Bench decision of Patna High Court in favour of examination of a party as a witness for the opponent in such manner, learned Civil Judge (Sr. Division) rejected the application on the ground of physical condition of defendant No. 2 and condemnability of the practice in calling the adverse party as a witness.

( 4 ) MR. P. V. Ramdas, learned Senior counsel arguing for the petitioner contended that the report of the Commissioner was no proof of illness and incapability of the defendant No. 2 to depose inasmuch as the Advocate Commissioner returned the writ because within the extended period of the writ till 31-8-1999 adjournment was prayed for on behalf of defendant No. 2 till 29-9-1999. Referring to the case of Sardar Gurbaksh Singh v. Gurdial Singh, AIR 1927 P. C. 230 and Mahunt Satrughana Das v. Bawa Sham Das, AIR 1938 P. C. 59, he argued that such ratio was propounded on distinguishable facts and circumstances. According to him the ratio in the case of Gurbaksh Singh (supra) lends support to the steps taken by the plaintiff in this case. He argued that in the cases of Syed Yasin v. Syed Shaha Mohd. Hussain, AIR 1967 Mysore 37 and Awadh Kishore Singh v. Brij Bihari Singh AIR 1993 Patna 122, Hon'ble Courts have found no illegality in the matter of plaintiff applying for examining defendant as a witness on his behalf. Accordingly, learned counsel for the petitioner argued that the impugned order be set aside and plaintiff be permitted to examine defendant No. 2 so as to prevent the mischief played by the other defendants by withholding examination of the defendant No. 2 as a witness in the suit. Learned counsel for the defendants/ opposite parties on the other hand supports the impugned order, the observation made by the Privy council in the above noted de