IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01/07/2002
CORAM
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
C.R.P. (P.D.) No.962 of 2002
K.Leelavathi .. Petitioner
versus
1. Mrs.Maheswari Sakthi Ganesan
2. Arun Real Estates
rep. by its Proprietor
R.Kandasamy. .. Respondents
Revision against the order dated 11.2.2002 in I.A.No. 152 of 2002 in
O.S.No.1541 of 1995 on the file of the II Additional Subordinate Judge,
Coimbatore.
!For petitioner : Mr.T.Chandrakumar
^For respondents : No appearance
:ORDER
Aggrieved by the order dated 11.2.2002 in I.A.No.152 of 2002 in
O.S.No.1541 of 1995 on the file of the learned II Additional Subordinate
Judge, Coimbatore, permitting the plaintiff in the suit, viz., the first
respondent herein, to summon the revision petitioner/second defendant for
letting in evidence on behalf of the first respondent/ plaintiff, as the
revision petitioner/second defendant refused to examine himself as a witness,
the revision petitioner/second defendant has preferred the above revision.
2. The only contention of the learned counsel for the revision
petitioner is that, if a party, who is in a position to give evidence, does
not come into the witness box, it is open for the Court to draw an inference
against him; but he cannot be compelled to give evidence, at the instance of
the opposite party, requiring the unwilling party, to examine himself as a
witness.
3. In this connection, I am obliged to refer Order XVI Rule 21,
C.P.C., which reads as follows:
“ Rules in case of parties appearing as witnesses.– (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. ”
4. A reading of Order XVI Rule 21(1), C.P.C., referred to above,
makes it clear that when a party to the suit (in the instant case, the
revision petitioner/second defendant) is required by any other party thereto
(the first respondent/plaintiff herein) to give evidence or to produce any
document, the provisions of Order XVI shall apply to him as far as possible.
It is true that if a party refuses to voluntarily give evidence, he cannot be
compelled to do so at the instance of the opposite party, as the Court is
always at liberty to draw an inference against the party, who refuses to give
evidence voluntarily.
5. No doubt, Order XVI Rule 20, C.P.C., refers to the consequences of
refusal of the party to give evidence when called on by Court, which reads as
follows:
“ Consequence of refusal of party to give evidence when called on by Court.–
Where any party to a suit present in Court refuses, without lawful excuse,
when required by the Court, to give evidence or to produce any document then
and there in his possession or power, the Court may pronounce judgment against
him or make such order in relation to the suit as it thinks fit. ”
6. In my considered opinion, the harmonious construction of Order XVI
Rules 20 and 21, C.P.C. makes it clear that the consequence of refusal of the
party to give evidence, as provided under Order XVI Rule 21 C.P.C. would
follow only if the opposite party initiates an action, requiring the party to
adduce evidence even though he refuses to do so voluntarily, as the refusal of
a party to give evidence would follow only after a summons is served on him at
the instance of the opposite party. The above principle is well-founded to
meet the contingency of the parties, who avoid cross-examination, and to meet
the ends of justice.
Therefore, finding no merits in the contention of the learned counsel
for the revision petitioner/second defendant the revision is dismissed. No
costs. Consequently, C.M.P.No.7928 of 2002 is also dismissed.
P.D.DINAKARAN,J.
Index: Yes Internet: Yes 01.07.2002 ksv To:
The II Additional Subordinate Judge, Coimbatore.
Sd/- Assistant Registrar
/True Copy/
Sub Assistant Registrar
C.R.P. (P.D.) No.962 of 2002