NARAYANA PILLAI Vs. KALLIYANI AMMA
HIGH COURT OF KERALA
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(1.)The plaintiff, who is the petitioner, applied before the lower court to issue notice to the advocate of defendants 9 and 10, the respondents, for the appearance of those defendants before court for examination. The respondents objected to this prayer and the lower court dismissed the petition. In revision the plaintiff seeks to reverse that order.
(2.)The practice of a party causing his opponent to be summoned as a witness was disapproved in rather strong terms by their Lordships of the Privy Council in Kishori Lal v. Chunni Lal (ILR 31 All 116). That has been followed in several subsequent decisions in India (Vide Lal Kunwar v. Chiranji Lal (ILR 32 Ali 164); Biram Das v. Mangal Singh (ILR 1929 Lah. 868); Pirgonda Hongaonda v. Vishwanath Ganesh (ILR 1956 Bom. 251); Koshy Eapen v. Idikula Varghese [5 TLT 271] and Kunju Sheik Ahamed Kunju v. Kuriyan Easo [25 TLJ 586]. Therefore, as a matter of right, the plaintiff cannot have defendants 9 and 10 examined as witness.
(3.)It is then contended that there may be special circumstances which may justify such a practice. But in this case I do not think there is any such special circumstance which necessitates the examination of defendants 9 and 10 on the side of the plaintiff. The question for decision in this case is whether the plaintiff is the son of a person by name Narayana Pillai as is claimed by the plaintiff. He further claims that defendants 9 and 10 are the daughters of the said Narayana Pillai. For proving this case it is not necessary that defendants 9 and 10 should be examined as witnesses on the plaintiff's side. As rightly pointed out by the lower court, the court may draw an adverse presumption from the non appearance of defendants 9 and 10 to dispute the evidence of the plaintiff when given. There is thus no special circumstance, which necessitates their being called as witnesses on the side of the plaintiff. From the facts and circumstances one is even tempted to suspect the bona fides of the plaintiff in calling defendants 9 and 10, who are women, as witnesses on his side.
The order of the lower court is thus confirmed and the Civil Revision Petition is dismissed with costs.
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