LAWS(HPH)-2008-9-21

RAM DAS Vs. SURESH CHANDER PRASHAR

Decided On September 30, 2008
RAM DAS Appellant
V/S
Suresh Chander Prashar Respondents

JUDGEMENT

(1.) THIS is the defendants ' petition accepting the request of the plaintiff for recalling the summons issued to him to appear as a witness on behalf of the petitioners -defendants.

(2.) THE suit filed by the plaintiff was for a decree for possession of land detailed in the suit. From the order it appears that General Power of Attorney Sagli Ram was prosecuting the case on behalf of the plaintiff. The defendants sought assistance of the Court calling upon the plaintiff to appear as a witness in the suit. This was resisted by the plaintiff, who moved an application for recalling of the summons. It was pleaded that the suit was filed through the General Power of Attorney who is fully conversant with the factual position and that there was no need for the plaintiff to be examined as a witness in this case. The plaintiff pleaded that the Power of Attorney bound him to all acts and deeds performed by his general attorney. He also pleaded his inability to attend the Court. The application was resisted by the defendants -petitioners herein. One of the grounds urged is that the General Power of Attorney is not conversant with certain facts which only the plaintiff is aware of and it is for this reason he is the person who can depose on oath regarding that factual situation. The learned trial Court holds that the examination is not necessary for the reasons that the plaintiff has expressed his inability to attend the Court and that the onus of proof regarding the issue on which he (defendant) seeks to prove the particular fact namely issue No. 7 is on the defendants. The application was rejected.

(3.) IN Kishori Lal v. Chunni Lal (1909) 36 IA 9, the Privy Council deprecated the practice of calling the other side as a witness. The Court observed: