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Pirgonda Hongonda v. Vishwanath Ganesh
Factual and Procedural Background
The plaintiff in a suit for damages requested that summons be issued to the defendants as his witnesses and that certain interrogatories be addressed to them. The trial Judge rejected the request to address interrogatories but ordered that summons be issued against the defendants. The plaintiff challenged this order through a revisional application.
Legal Issues Presented
- Whether a party to a suit can be compelled to appear as a witness by the issue of a witness summons against them.
- Whether the interlocutory order directing issuance of summons to the defendants as witnesses is subject to revisional jurisdiction.
- Whether the practice of compelling an opponent party as a witness is consistent with established judicial principles and precedents.
Arguments of the Parties
Appellant's Arguments (Mr. Datar)
- Conceded that ordinarily interlocutory orders of this nature are not subject to revisional jurisdiction, especially when made in the exercise of judicial discretion.
- Contended that the order was inconsistent with the prevailing judicial practice.
- Relied on a Circular issued by the Court and the Privy Council’s strong condemnation of the practice of calling the opposing party as a witness.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kishori Lal v. Chunni Lal, 31 All 116 at p. 122 (Privy Council) | Condemnation of the practice of calling a party’s opponent as a witness; such practice is highly objectionable and should not be permitted to embarrass judicial investigation. | The Court relied on this precedent to hold that a party should not be compelled to appear as a witness by summons, reinforcing that the trial Judge’s order was contrary to this principle and thus set aside the order. |
Court's Reasoning and Analysis
The Court acknowledged that interlocutory orders made in the exercise of discretion are generally not subject to revisional jurisdiction. However, the Court found the order directing summons to the defendants as witnesses inconsistent with established judicial practice and the principle articulated by the Privy Council in Kishori Lal v. Chunni Lal. The Court noted that normally, a party is expected to testify in support of their own case voluntarily, and if they do not, adverse inferences may be drawn. It is not permissible for the opposing party to compel their presence by summons. The Court also referred to Circular No. 161 issued by itself, which highlights this principle. Since the learned Judge apparently was not aware of this circular when issuing the summons, the Court set aside the order.
Holding and Implications
The revisional application is allowed, and the order directing the issue of summons against the defendants as witnesses is set aside.
This decision directly affects the parties by preventing the plaintiff from compelling the defendants to appear as witnesses by summons. The Court did not establish any new precedent but reaffirmed the existing principle that a party cannot be forced to testify against themselves through summons, consistent with prior authoritative guidance.
In a suit for damages, the plaintiff applied that a summons should be issued to the defendants as his witness and that certain interrogatories should be addressed to them. The learned trial Judge rejected his prayer for addressing interrogatories to the defendants, but has ordered that summons should be issued against the defendants. It is this order which has given rise to the present revisional application.
2. Mr. Datar concedes that ordinarily an interlocutory order of this kind would not be subject to the revisional jurisdiction of this Court, particularly when the order appears to have been issued by the learned Judge in the exercise of his discretion. But he contends that the order is inconsistent with the practice generally prevailing in our Courts and seeks to introduce a practice which has been condemned by the Privy Council in very strong terms.
3. Mr. Datar has also relied upon Circular No. 161 of the Circulars issued by this Court in the Civil Manual. This circular has invited the attention of the subordinate Judges to the observations of the Privy Council in — ‘Kishori Lal v. Chunni Lal’, 31 All 116 at p. 122 (PC) (A). Their Lordships of the Privy Council have referred to the practice which sometimes seemed to obtain in some of the Courts in India of calling the party's opponent as a witness and they have observed that this practice is highly objectionable. ‘Such a practice’, said their Lordships
“ought never to be permitted in the result to embarrass judicial investigation as it is sometimes allowed to be done”.
4. 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 a witness summons.
5. That appears to be the effect of Circular No. 161 issued by this Court. Apparently, the attention of the learned Judge has not been drawn to this circular, otherwise he would not have issued the summons as prayed for by the plaintiff. In the result, I set aside the order passed by the learned Judge directing the issue of a witness summons against the defendants in this case.
6. The application is allowed and the rule is made absolute. There will be no order as to costs.
D.R.R
Rule made absolute.
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