Mary Francis vs Kesavan

Shamsuddin, J.—The petitioner is a lady doctor who after retirement started a Hospital and Nursing Home at Kollam. It is the petitioner''s case that the 1st respondent was appointed as a watchman at their residence. On the other hand, the case of the 1st respondent is that he was appointed as a watchman of Hospital and Nursing Home. The 1st respondent filed an application before the 2nd respondent u/s 7(4) of the Payment of Gratuity Act claiming that he was in service from 1975 to 1989. The petitioner filed a written statement denying the allegation and contending that the first respondent being a domestic servant would not come within the provisions of Payment of Gratuity Act. The case was posted for evidence and the first respondent was examined. He also filed a witness schedule Ext. P-1. While application was pending, the 1st respondent filed an application seeking to summon the petitioner who is the opposite party as a witness for and on behalf of the 1st respondent. The petitioner raised objection. Overruling the objection, the 2nd respondent ordered to summon the petitioner as a witness. Ext. P-2 is the said order. In this Original Petition, Ext. P-2 is challenged.

Learned counsel appearing for the petitioner submitted that the impugned order is unsustainable. He invited my attention to a decision of this court in Narayana Pillai v. Kalliyanai Amma 1963 KLT 537 where this court observed that the practice of a party causing his opponent to be summoned as witness was disapproved in rather strong terms by their Lordships of the Privy Council and therefore, as a matter of right, the plaintiff cannot have defendants examined as witness. The Privy Council in Lal Kumar v. Chiranji Lal ILR 32 All. 164 condemned the practice of summoning the opposite party as witness. Several High Courts since then followed the said dictum See ILR 31 All. 116 ILR 32 All 164 ILR 1929 Lab. 868 5 TLT 271 25 TLJ 568 ILR 1956 Bom 251. In Syed Mohammed v. Aziz 1990 (2) KLT 952 also a Single Judge of this Court followed the same dictum and pointed out the impropriety of a situation in which the counsel appearing for the opposite party has to cross-examine his own party.

It is true, the court is not powerless in summoning an opposite party if there are special reasons. No such reasons have been made out in the instant case to compel the opposite party to give evidence for and on behalf of the 1st respondent who is the petitioner before the Controlling Authority. It is always open to the court or the Authority to draw adverse inference, if the opposite party refuses to give evidence to substantiate his contention. In these circumstances, I am unable to sustain Ext. P-2 order. It is accordingly set aside. The 2nd respondent will dispose of the matter in accordance with law. Issue photo copy of the judgment on usual terms.