- (1.)THIS civil revision petition arises from the order dated 9-3-1998 passed by the IV Additional Civil Judge (Jr. Dn), Mysore, in O. S. No. 82 of 1995 on I. A. 6 rejecting the same moved by the plaintiffs (revision petitioners herein) under Order 16, Rule 1, Civil Procedure Code seeking permission of the Court to examine Defendant No. 3 as witness on behalf of the plaintiffs in the said case.
(2.)THE Court below rejected the said application on the ground that the witness mentioned in I. A. 6 is none else than Defendant No. 3 in the suit and the plaintiffs have no right to examine Defendant No. 3 as their witness.
(3.)SRI. M. V. Hiremath, learned Counsel for the revision petitioners contended that Order 16, Rule 1 of the Code of Civil Procedure, contemplates that 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 and there is no bar to examine the defendant/opponent by a party as his witness. The learned Counsel contended that it is always open to the plaintiff to examine any person as independent witness/witnesses or to examine any one of the defendants/opponents in the circumstances prevailing. As such, according to the learned Counsel for the revision petitioners, the trial Court illegally refused to summon Defendant No. 3 as their witness. The learned Counsel further contended that Defendant No. 3 has not filed any written statement and hence there could not be any conflict of interest between the plaintiffs and defendants. Therefore, there could not be any bar to the plaintiffs examining Defendant No. 3 (respondent No. 3 herein) as their witness. The learned Counsel contended that the trial Court has arbitrarily and illegally refused to summon Defendant No. 3 in the suit as plaintiffs' witness. In support of his contentions, the learned Counsel for the revision petitioners placed reliance on the single Judge decision of this Court in Syed Yasin v. Syed Shaha Mohd. Hussain, (1965) 2 Mys LJ 788 : (AIR 1967 Mys 37) and contended that it is open to the one party to the suit to summon and examine the other party to the suit as their witness or summon him to produce the documents and the Code does not prohibit from examining the other party is witness. The learned Counsel contended as such the order of the Court below be set aside and the applications of the plaintiffs-revision petitioners be allowed in exercise of the jurisdiction under Section 115 of the Code of Civil Procedure.