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Judgment
Venkataraman, J.—This is an application by the Defendant in the suit to examine five witnesses on commission. The Defendant is the
producer of the film Deivame Thunai and the Plaintiffs a private limited company, advanced certain amounts for the production of the picture and in
turn got the right of distribution in Tiruchirappalli and Thanjavur districts. The Plaintiffs were entitled to recoup the advances from the collections. If
any balance remained, at the end of one year, they were entitled to recover the balance without prejudice to the right of further exploitation of the
picture. It is under this provision of the agreement that the suit has been filed for recovery of a sum of Rs. 54,000 odd. The Defendant has taken
the plea that the Plaintiffs did not send correct accounts of the daily collections. In the affidavit in support of the present application the manager of
the Defendant states that the object of examining the five witnesses is to prove that plea. The first three witnesses are the director and two
employees of the Plaintiff--company. The fourth is a commercial tax officer and it is stated that the officers of the commercial tax department seized
the accounts of the firm, the suggestion being that the accounts thus seized would disprove the correctness of the accounts sent by the Plaintiffs to
the Defendant. The fifth witness is the lessee of Krishna Talkies, Ayyampettai, Thanjavur district. The witnesses reside at a distance of more than
200 miles from Madras and so under Order XVI, Rule 19, Code of Civil Procedure, they cannot be compelled to appear in Court to give
evidence.
The counter-affidavit filed by the manager of the Plaintiff-company asserts that correct accounts were sent by the Plaintiffs to the Defendant and
that the papers seized by the commercial tax department have nothing to do with the case. He also takes objection to the move to examine the
director and two employees of the Plaintiff--company. It is stated:
The practice of one party to a suit citing as a witness the opposite party or his employees has been roundly condemned by the Privy Council in
more than one case.
During the arguments Sri M.R. Narayanaswami, learned Counsel for the Respondents-Plaintiffs, stated that he could have no serious objection
to the examining of the fourth and fifth witnesses on commission. The controversy is only about the first three witnesses and he refers to the well
known decisions of the Privy Council in Kishori Lal v. Chunni Lal ILR (1908) All. 116 (P.C.) and Lal Kunwar v. Chiranji Lal ILR (1909) All. 104
(P.C.) and Sardar Gurbaksh Singh v. Gurdial Singh (1927) 53 M.L.J. 392 (P.C.). In these cases the Privy Council condemned the practice of the
Advocate not examining big party as a witness on his side in the hope of forcing the opposite side to examine him as a witness on their side so that
the first mentioned Advocate may have the right of cross-examining his own party. The Privy Council pointed out that it is necessary for a party to
appear and give evidence in support of his case and that otherwise an adverse inference could legitimately be drawn. It may be said that in a way
these decisions are not direct authorities on the question before us, namely, where the Defendant himself takes out an application to examine a
witness on the opposite side as his witness. On that question it is of interest to note that in the CPC of 1859 there, was a provision (Section 162)
to the following effect:
If any party to a suit shall require to enforce attendance of any other party thereto as a witness he shall by himself or his pleader, make a special
application to the Court for an order requiring the attendance of the party and shall show to the satisfaction of the Court, sufficient grounds in
support of such application; otherwise the summons shall not be issued.
(For the cases decided under the above Section See A.I.R.''s Commentary in CPC under Order XVI, Rule 1, note 4-1).
The above provision does not appear in the above form in the Code of 1882 or in the present Code of 1908. However, the following two rules
in the present Code of 1908 may be relevant:
Order XVI, Rule 1:
At any time after the suit is instituted, the parties may obtain, on application to the Court or to such officer as it appoints in this behalf, summonses
to persons whose attendance is required either to give evidence or to produce documents.
Order XVI, Rule 21:
Where a party to a suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as they are
applicable.
The Madras Amendment of Rule 21 reads:
(1) When a party to a suit is required by any other party thereto to give evidence or to produce a document, the provisions as to witnesses shall
apply to him so far as applicable.
(2) When a party to a suit gives evidence on his own behalf, the Court may, in its discretion permit him to include as costs in the suit a sum of
money equal to the amount payable for travelling and other expenses to other witnesses in the case of similar standing.
Reading these statutory provisions by themselves there is nothing in Order XVI, Rule 1, Code of Civil Procedure, positively to prohibit a
Defendant summoning the Plaintiff or his employees. Indeed the provisions of Rule 21 would seem to permit a party summoning the opposite party
to give evidence on the side of the summoning party. But the provisions will have to be read along with the decided case on the point. The Privy
Council itself has condemned this practice in Shatrugan Das v. Sham Das (1937) 47 L.W. 124 where it was observed at page 127:
Mahabir Das, Plaintiff, refrained from giving evidence on his own behalf. He adopted instead the tactics of calling Shamdas, Defendant 1, as a
witness for the Plaintiff with the usual result that important features of his case are denied by his own witness. Their Lordships have on a previous
occasion condemned this practice and approve of the course of action taken by the High Court in treating the Plaintiff as a person who put
Defendant 1 forward as a witness of truth.
Again in Mathura Das Daga v. Jetha Jaichand (1898) 2 C.W.N. (sh. Notes) XCIX decided by Sale J., the Plaintiff examined the second
Defendant to prove his case but the evidence was not believed by the Judge. It was urged on behalf of the Plaintiff that the evidence of the second
Defendant should not be pressed against the Plaintiff because he was a Defendant. This contention was repelled with the observation:
If a party chooses to call his opponent to establish a given fact, he must stand or fall as regards proof of that fact according as the evidence of the
witness on whom he relies is worthy of credit or the reverse.
In Baldev Thiribuvadas v. Baldevdas Dwarakdas (1909) 3 I.C. 45 of the Bombay High Court, the Plaintiff required the Defendant to appear as
his witness and the lower Court directed that the Defendant should appear. This practice was condemned.
In Biramdas v. Mangal Singh AIR 1929 Lah. 868 each party examined the other as his witness and the practice was again condemned.
In Sadh v. Panu AIR 1951 H.P. 41 the Plaintiff refrained from giving evidence on his own behalf and called the Defendant as a witness for the
Plaintiff with the usual result that important features of the Plaintiff�s case were denied by the Defendant. Bannerji J.C., quoted the Privy Council
decision in AIR 1938 59 (Privy Council) and condemed the above practice.
In Ganda Mal Vs. Bhulloo Ram, the Judicial Advisers observed:
It is a bad practice that when parties are in a position to give personal evidence they should refrain from entering the witness box. If such evidence
is withheld without sufficient cause, the Court is not only entitled to but is bound to draw an adverse inference against the party who has thus
withheld evidence. It is a still more objectionable practice to cite opposite side as one''s own witness. This places the examination and cross-
examination of such a witness in wrong hands, necessitates the criticism of the evidence by the side which has called it and this embarrasses fair
trial and caused obstruction of justice.
In Pirgonda Hongonda Vs. Vishwanath Ganesh and Others, Gajendragadkar, J. as he then was quashed the order of the subordinate Judge
issuing summons against the Defendants at the instance of the Plaintiff. After quoting the Privy Council in Kishori Lal v. Chunni Lal ILR (1908) All
116 (P.C.) His Lordship observed:
Normally a party to the suit is expected to step into the witness box in support of his own case; and if a party does not appear in the witness box it
would be open to the trial Court to draw an inference against him. If a party fails to appear in the witness box, it should normally not be open to his
opponent to compel his presence by the issue of witness summons.
Again Mallangowda v. Gavisiddan gowda AIR 1959 Mys 194 where the Plaintiff was examined as a witness on behalf of the Defendant, the
learned Judges condemned the procedure as not being in the interests of justice.
As against these cases, there is the observation of Walsh J., in Appavoo Asary Vs. Sornammal Fernandez and Another, quoting Ayya Nadan
v. Thanammal (1920) 55 I.C. 954 and stating that where a party desires the presence of the opposite party in Court for the purpose of examining
him as a witness the proper procedure to adopt is one under Order XVI and not the one under the proviso to Order III, Rule 1, Code of Civil
Procedure. Actually these were cases under Order III, Rule 1 and Order IX, Rule 12 and not under Order XVI Rules 1 and 21, Code of Civil
Procedure. Thus, in spite of the lack of express prohibition in Order XVI, Rules 1 and 21, CPC against the Defendant summoning the director and
employees of the Plaintiff-company as he seeks to do in this application, the preponderance of authority is against this procedure. Sri M.R.
Narayanaswami, learned Counsel for the Plaintiffs, further stated that probably he himself might be examining the first three witnesses as witnesses
on his own side and that the question might be considered in case he does not examine them as his witnesses. I think that, under the circumstances
of the case, that is the proper course to adopt and for the present no commission will issue to witnesses 1 to 3. A commission will, however, issue
for the examination of witnesses 4 and 5.