Can a Party to Suit Examine Opposite Party, as of Right?

Joji George Koduvath.

Introspection.

There is no specific provision in the CPC that allows a party to the suit to summon his opposite party as a witness, though the court can ‘examine any person, including a party to the suit’under the discretionary provisions in Order 16 rule 14 CPC, after 1976 Amendment.

O.16 R.14 reads as under:

O. 16 R. 14: Court may of its own accord summon as witnesses strangers to suit: Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it necessary [to examine any person, including a party to the suit], and not called as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession on a day to be appointed, and may examine him as a witness or require him to produce such document.
- The words “of its own accord”, “subject to the provisions of this Code … and to any law” and “the Court may” make it clear that this provision is not intended to use openhandedly.

Variance in views:

Opposite party cannot be called as a witness

Following decisions – prior to 1976 – took the view that opposite party cannot be called as a witness:

Kishori Lal v. ChunniLal, 31 All. 116 (Privy Council); Followed in Kaliaperumal v. Pankajavalli (1999) 1 MLJ 97.
Pirgonda v. Viswanath: AIR 1956 Bom 251
Mallangowda v. Gavisiddangowda, AIR 1959 Kant 194
Narayana Pillai v. KalyaniAmmal 1963 Ker LT 537
Muhammed Kunji v. Shahabudeen 1969 Ker LT 170

Contra view

Decisions that took the view that opposite party can be called as a witness:

Syed Yasin v. Syed Shaha Mohd. Hussain, AIR 1967 Kant 37
Sri Awadh Kishore Singh .v. Sri Brij Bihari Singh, AIR 1993 Pat 122
Symantec Software Solutions Pvt. Ltd. Vs. Ms. R. Modi: 2016-10 AD (Del) 109.

View of Delhi High Court

The Delhi High Court has laid down the following directions, with regard to the examination of witnesses in court, in Atul Kumar Singh v. Nitish Kumar: 2019-265 DLT 161:

“The summoning or examination of an opposite party of a suit must be allowed by the court only in the rarest of rare cases when it is unavoidable in the interest of justice.”

The power of Court to summon any person as witness

Section 30, CPC reads as under:

30. Power to order discovery and the like. Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion or on the application of any party,-
(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;
(b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;
(c) order any fact to be proved by affidavit.

Section 165, Indian Evidence Act, 1872 reads as under:

165. Judge’s power to put questions or order production.—The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:
Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved:
Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.

In Kalliyara Estates Pvt. Ltd. v. State of Kerala, ILR 2012-3 Ker 876; 2012 3 KHC 386, it is discussed as under:

“Summoning the opposite party as a witness is deprecated by this Court in various decisions. (See Jortin Antony v. S.P.D.Marthanda Varma, 2000 (2) KLT 680; Narayana Pillai v. Kalliyani Ammia, 1963 KLT 537; Muhammed Kunju v. Shahabudeen, 1969 KLT 170; Syed Mohammed v. Aziz, 1990 (2) KLT 952 and Mary Francis v. Kesavan, 1993 (1) KLT 4.) A party to the suit is entitled to examine himself and give evidence. He is also entitled to adduce such other relevant evidence by examining other witnesses. The Court has power to summon any witness whose evidence appears to be relevant. Section 30(b) of the Code of Civil Procedure confers vast powers on the civil court to issue summons to persons whose attendance is required either to give evidence or to produce documents or such other objects as mentioned in clause (a). The power vested in a Court under Section 30 is subject to such conditions and limitations as may be prescribed. The power under Section 30 can be exercised either on its own motion or on the application of any party. The conditions and limitations prescribed occur in Order 16 of the Code of Civil Procedure. No right is vested in a party to summon the opposite party as a witness. The Court is entitled to ascertain whether the purpose of summoning witnesses is for adducing relevant evidence or whether it is an attempt to cause inconvenience and embarrassment to the opposite party. It is not the absolute right of a party to summon any person as a witness or to examine any number of witnesses. The Court is not powerless in the matter of regulating the proceedings for taking evidence in the case.”

Scheme of CPC & Evidence Act- Take Adverse Presumption

Why the Civil Procedure Code does not specifically provide for calling opposite party to suit as a witness? To find the answer we have to look into the scheme of the CPC and the relevant provisions of the Evidence Act. The ‘scheme’ of CPC is clear – that is, not to initiate coercive steps, against a party who does not examine himself as a witness, or withholds a document, inasmuch as the law prefers taking adverse presumption under Sec. 114 Evidence Act. (See: Suresh Vs. Uttam: 2013-2 AIR Bom R 196, 2012-5 All MR 880)

How an Opposite Party can be summoned in Civil Court, for Examination?

From Sec. 30 and Or. 16 r. 14, CPC it is clear that the party who desires to examine his opposite party as a witness has to seek the court to pass an order to that effect, filing a petition stating the grounds of “necessity” for examining him as a witness.

(Note: Order 16 r. 14 applies – “where the Court at any time thinks it necessary to examine any person, including a party to the suit”).
- See Blog: Production of Documents in Court: Order 11, Rule 14 CPC is not independent from Rule 12
The courts will allow such applications (only) ‘in the interest of justice’ and in ‘the rarest of rare cases’, and ‘when it is unavoidable’.

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act

Constitution

Contract Act

Easement

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Can a Party to Suit Examine Opposite Party, as of Right?

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