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Shally vs Ram Mohan Gautam - Delhi
"].When a witness has already deposed, summoning them again depends on the stage of proceedings and whether the court permits such recall; it is not automatic and must be justified ["2023 0 Supreme(P&H) 1938"].
Analysis and Conclusion:
Shally vs Ram Mohan Gautam - Delhi
"], ["2025 0 Supreme(Kar) 72"], ["2025 Supreme(Online)(Kar) 41353"], ["2024 0 Supreme(Mad) 2496"], ["2023 0 Supreme(P&H) 1938"].
In the intricate world of Indian litigation, the roles of parties and witnesses often intersect, raising critical questions about procedural fairness. Imagine a civil suit where the plaintiff wants the defendant—already joined in the case—to step into the witness box on their behalf. Can a person joined as a defendant in a suit depose as a plaintiff witness? This query touches on fundamental principles of evidence and procedure under the Code of Civil Procedure (CPC), 1908, and the Code of Criminal Procedure (CrPC), 1973. While courts generally allow flexibility, strict limitations apply to prevent abuse. This post breaks down the legal framework, drawing from judicial precedents and statutory provisions.
A witness is fundamentally a person who provides evidence in a court, either through oral statements or written depositions, regarding facts they have personal knowledge of 2023 8 Supreme 487. Parties to a suit—plaintiffs or defendants—can also serve as witnesses, but this is governed by specific rules to ensure justice isn't undermined.
Under the CPC, Order XVI deals with summoning and attendance of witnesses. Notably, any party to the proceedings may call for other party as a witness on his behalf 2022 0 Supreme(Guj) 1013. This principle has been upheld in cases like Sri Awadh Kishore Singh and another v. Sri Brij Bihari Singh and others, reported in AIR 1993 Patna 122, affirming that courts may summon an opposing party as a witness 2022 0 Supreme(Guj) 1013.
However, limitations exist:- No calling solely for cross-examination: The CPC does not permit calling the other party to the suit only for the purpose of cross-examination 2022 0 Supreme(Guj) 1013. Courts have condemned practices like plaintiffs calling defendants merely to cross-examine them, viewing such moves as frivolous delays 2022 0 Supreme(Guj) 1013.- In one case, a petition to direct the defendant for cross-examination was rejected with costs of Rs. 25,000, emphasizing procedural integrity 2022 0 Supreme(Guj) 1013.
In civil suits, parties frequently depose. For instance:- Defendant No. 1 deposed as a constituted attorney for others 2020 0 Supreme(Cal) 75.- The second defendant voluntarily adduced evidence for the plaintiff without summons, highlighting close relationships but not altering party status 2019 0 Supreme(Mad) 988.
In criminal matters, The Code of Criminal Procedure (Cr.P.C.) allows for the recall and re-examination of witnesses under Section 311, but this is at the discretion of the court and typically applies to witnesses who have already been examined 2006 3 Supreme 204. There's no provision in the Cr.P.C. that allows for a witness who has already been examined to be compelled to testify again as a defense witness... particularly if the witness has already provided testimony that has been cross-examined and discharged 2013 4 Supreme 717.
If a defendant hasn't yet deposed, the plaintiff may seek to call them as a witness, provided it's not a ploy for cross-examination. Courts have held the lower court bound to summon the plaintiff as a witness on behalf of the petitioner in analogous scenarios 2022 0 Supreme(Guj) 1013.
Key Restrictions:- Prior Deposition: If the person you wish to call as a witness has already deposed on behalf of the plaintiff, you cannot compel them to testify again as a defense witness. Their previous testimony stands 1958 0 Supreme(SC) 163 2004 2 Supreme 74. Re-examination requires compelling reasons, like new evidence, and courts may reject if it doesn't serve justice 2006 3 Supreme 204.- Court Discretion: Requests are evaluated for fairness. In Pirgonda Hongonda v. Vishwanath Ganesh, principles reinforced that parties can't misuse witness summoning 2022 0 Supreme(Guj) 1013.- Voluntary Testimony: Defendants may voluntarily testify for plaintiffs, as seen where the second defendant did so without summons, though arrayed as a party 2019 0 Supreme(Mad) 988.
Examples from Case Law:1. In a partition suit, plaintiffs didn't challenge an unregistered agreement, but defendants' possession claims prevailed; no witness re-calling issue arose 2022 0 Supreme(Bom) 309.2. Consumer forums erred on deficiency claims without proper witness averments, underscoring onus on complainants 2020 1 Supreme 566.3. Anti-suit injunction cases noted witnesses deposed supporting motions, but jurisdiction trumped 2019 0 Supreme(Del) 672.
Courts prioritize interests of justice. Frivolous applications to call parties as witnesses for delay are penalized, as in the Rs. 25,000 cost imposition 2022 0 Supreme(Guj) 1013. In specific performance suits, valid agreements led to decrees where attorneys deposed validly 2020 0 Supreme(Cal) 75.
Pro Tips for Litigants:- Prepare Alternatives: Consider identifying new witnesses who can provide relevant testimony to support your case 2020 3 Supreme 39.- Challenge Credibility: If there are grounds to challenge the credibility of the previous witness's testimony, prepare to present those arguments without relying on their re-examination.- Seek Permission Early: File under Order XVI CPC or
Generally, a defendant can depose as a plaintiff's witness in India, especially if not previously examined and not solely for cross-examination. However, courts wield significant discretion to prevent abuse, as seen across CPC and CrPC provisions. Precedents like those in 2022 0 Supreme(Guj) 1013 affirm parties calling opposites, but with caveats from 2006 3 Supreme 204 on recalls.
Key Takeaways:- Parties may summon opposing parties as witnesses, but not just for cross-exam 2022 0 Supreme(Guj) 1013.- Re-examination post-deposition is rare without new evidence 2013 4 Supreme 717.- Focus on voluntary testimony or fresh witnesses for stronger cases.
This post provides general insights based on Indian legal principles and is not specific legal advice. Consult a qualified lawyer for your situation.
For further reading on witness strategies, explore related CPC orders.
#IndianLaw #WitnessTestimony #CivilProcedure
Order XVIII Rule 3A provides that where a party herself wishes to appear as a witness, she shall so appear before any other witness on her behalf is examined, unless the court for reasons to be recorded, permits her to appear as her own witness, at a later stage. ... that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, w....
and it is not open to the defendant to summon the plaintiff for deposing as his witness. ... BEWA SHAM DAS, AIR 1938 PRIVY COUNCIL 59, observed that the practice of calling the defendant as a witness to give evidence on behalf of the plaintiff is condemnable; no special circumstances are pointed out as to why this judicial opinion emanating from enormous wisdom should not be respected ... The answer to t....
No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff. ... To appear in a witness box is altogether a different act. A general power of a....
The High Court while allowing the Second Appeal took the view that Shri Gautam Dasgupta (D.W.5 i.e. the Appellant No.4 – before us) could not have entered the witness box and deposed on behalf of his mother – (Original Defendant No.1). ... In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness.” 10. ... In her place, he....
Therefore, the Court below was bound to summon the plaintiff as a witness on behalf of the petitioner in the said case. ... 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. ... plaintiff could not have filed this application Exhibit-284, n....
(2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. ... the name of such witness in the said list. ... Order XVI Rule 1(3) envisages a request, by a party, to call a witness other than the one whose name figures in the list of witnesses filed under Order XVI Rule 1(....
A party to the suit is one on whose behalf or against whom a proceeding in a court has been filed. A witness is a person, either on behalf of the plaintiff or the defendant, who appears before a court to substantiate a statement or claim made by either side. ... In such a case the plaintiff must be treated as a person who puts the defendant forward as a witne....
State of Rajasthan reported in (2001) 2 SCC 205, where it was held that a party may call any person as his witness, and if such witness turns hostile, the Court may in its discretion permit cross-examination to elicit the truth. ... Beyond a bare assertion that defendant No.1(a) is a necessary witness, no cogent reason is advanced to justify his summoning. In fact, as the above precedents establish, a #H....
Therefore, the 7th defendant has got good reason /cause to call upon the 6th defendant to appear as a Court witness. ... If so read, it will make clear that any person either party to the proceedings or not can be summoned and examined, provided he is a necessary witness relevant to the lis. ... Therefore, out of the three ingredients which are required to be satisfied to call a co-defendant as a Court #H....
Gupta has expired and therefore, only other person fully conversant with the facts of the case is the petitioner is fallacious as: a) as already demonstrated above, the petitioner has been shown to have negligible role, if any, in the entire proceedings. ... the petitioner/defendant No.2, as its own witness during evidence of plaintiff. ... Gupta has put his signatures on the agreement of sale containing the alleged term o....
It is an admitted position that while the Plaintiff entered into the witness box and deposed as a witness, no witness deposed on behalf of the Defendants. On the basis of the pleadings of the rival parties, issues were framed and evidence was led.
On the same lines, the witness examined on behalf of the respondents has deposed. But the opposite party No. 1 did not heed the request of the Complainants, nor any arrangement to carry the Complainants from Kolkata Airport to Agartala Airport in their home town and lastly after failure to come back to Agartala from Kolkata airport, the Complainants hopelessly return from Kolkata Airport with very financial hardship and took a hotel room nearby the Kolkata Airport for staying....
7. Such being the pleadings, the parties went on trial and the defendant no.1 as constituted attorney of the defendant nos.2 and 3 deposed as first witness. The respondent no.4 deposed as second witness on behalf of the other defendant.
Witness statements including of the Defendant no.3 herein, were filed in the said motion. 4. It is not disputed that the Plaintiff herein, after filing of the present suit, filed a motion before the Superior Court of Justice, Ontario, Canada seeking dismissal of the suit on the ground of lack of jurisdiction. Further, witnesses on behalf of the Plaintiff have already deposed in the said suit supporting the said motion.
The abovesaid conduct of the second defendant would go to show that the relationship between the plaintiff and the second defendant is very close and cordial and accordingly the second defendant is found to have come forward to adduce evidence on behalf of the plaintiff, particularly, without receiving any summons from the Court to stand as a witness in the proceedings. However, the fact remains that though the second defendant has been arrayed as a party in the proceedings, he has not chosen ....
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