IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 384 of 2008()
1. MIDAS PRE-CURED TREADS (P) LTD.,
... Petitioner
Vs
1. THE KERALA STATE ROAD TRANSPORT
... Respondent
For Petitioner :SRI.RAJIV ABRAHAM GEORGE
For Respondent :SRI.K.PRABHAKARAN, SC, K.S.R.T.C.
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :04/06/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
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C.R.P.Nos.384 & 385 of 2008
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Dated this the 4th June, 2008.
O R D E R
Petitioner is the plaintiff and respondent is the
defendant in the suit. After closing the evidence and hearing the
arguments, the suit was posted for judgment to 18.2.2008.
Thereafter, learned Sub Judge passed the impugned order challenged
in CRP.No.384/2008, dated 18.2.2008, which reads as follows:-
“Plaintiff represented by Sri.Sonay John. The
written statement filed by Defendant is at variance
with the argument note filed by Defendant.
Invoices (Photocopy) are note admitted by
defendant in the hearing note. Hence a
clarification is required from the side of defendant.
For further hearing. Evidence re-opened.
Judgment not pronounced. Call on 25-2-2008.”
C.R.P.No.384/2008 is filed challenging that order contending that
learned Sub Judge should not have re-opened the evidence, after
arguments were heard and suit was posted for judgment. After the
evidence was re-opened, suit was posted to 25.2.2008. It was again
adjourned and taken up on 3.3.2008. On that day, learned Sub Judge
CRP.Nos.384 & 385/2008
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passed an order stating that counsel appearing for the defendant
submitted that in the light of the evidence adduced and pleadings,
defendant has to file an application for receiving additional written
statement. Holding that it is to be decided whether an additional
written statement is to be received or not, suit was adjourned to
15.3.2008 observing that it is not fair and proper to deny the
defendant a chance of amending the pleadings, in view of the law laid
down by the Apex Court. On the request of the defendant, suit was
posted after 7 days. That order is challenged in C.R.P.No.385/2008.
2. On hearing the learned counsel appearing for the
petitioner, notice was issued to the respondent and a report was called
for from the Presiding Officer of the trial court. The report was
submitted by the successor of Presiding Officer, as the Presiding Officer
who passed the impugned orders was subsequently transferred in the
General Transfer. The report submitted by the Presiding Officer shows
that on 14.3.2008, respondent filed I.A.No.1608/2008, an application
for amendment of the written statement, and, therefore, the case
stands posted to 28.5.2008. Counsel further submitted that the case
is thereafter posted to this day.
CRP.Nos.384 & 385/2008
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3. The learned counsel appearing for the petitioner, as
well as the learned counsel appearing for the respondent were heard.
4. The argument of the learned counsel appearing for
the petitioner is that after closing of the evidence and hearing
arguments, the suit was posted for judgment, and at that stage,
Court is not competent to suo motu re-open the evidence as has been
done under the impugned order, dated 18.2.2008. He further argued
that in any case, learned Sub Judge should not have granted an
opportunity to the defendant to file a petition to receive additional
written statement, or found that respondent is entitled to amend the
written statement and in such circumstances, both the orders are to be
quashed.
5. The learned counsel appearing for the respondent
however submitted that subsequent to the impugned orders,
respondent filed an application to amend the written statement and it
is pending, and there is no reason to interfere with the impugned
orders. The learned counsel for the petitioner pointed out that under
proviso to Rule 17 of Order VI of Code of Civil Procedure, no
application for amendment shall be allowed, unless the court comes to
CRP.Nos.384 & 385/2008
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the conclusion that in spite of due diligence, parties could not have
raised the matter before the commencement of the trial, and as
against this mandate, the court should not have granted an
opportunity to the petitioner to amend the written statement.
6. Order XVIII of Code of Civil Procedure deals with
hearing of the suit and examination of witnesses. Rule 2 provides for
statement and production of evidence. Rule 4 and 5 deals with the
recording of evidence. Rule 17 of Order XVIII enables the Court at
any stage of the suit to recall any witness who has been examined and
to put such questions to him, as the Court thinks fit. It is after
recording the evidence as provided under Order XVIII, Court has to
hear the argument and pronounce the judgment as provided under
Rule 1 of Order XX of Code of Civil Procedure. When the evidence is
closed and arguments are heard, and suit is posted for judgment, it
Court is competent to re-open the suit posted to hear the counsel
appearing for the parties or seek any clarification. Therefore, if the
learned Sub Judge found it necessary to have any clarification, he is
competent to post the case, after re-opening, for hearing the
arguments. Therefore, to that extent, there is no illegality or
irregularity in the order dated 18.2.2008. But the court should not
CRP.Nos.384 & 385/2008
5
have re-opened the suit for evidence, unless it is for the purpose of
exercising the power under Rule 17, and to that extent, order dated
18.2.2008 is illegal. Therefore, C.R.P.No.384/2008 is allowed in part,
quashing the order re-opening the evidence. But the order re-opening
the suit for hearing arguments seeking further clarification is perfectly
in order.
6. As per the impugned order in C.R.P.No.385/2008,
learned Sub Judge has only granted the prayer of the respondent to
file an application to receive additional written statement. The learned
Sub Judge did not decide whether the application to be filed to receive
the additional written statement is to be allowed or not. In such
circumstances, I do not find any illegality in the impugned order dated
3.3.2008. Therefore, that revision is dismissed.
The report of the learned Sub Judge shows that
because of the order, dated 3.3.2008, respondent has filed an
application to amend the written statement under Rule 17 of Order VI
of Code of Civil Procedure. The fact that petition is filed, does not
mean that application is to be allowed. It is for the Sub Judge to
dispose the application, in accordance with law, taking into
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consideration proviso to Rule 17 of Order VI of Code of Civil
Procedure. The Sub Judge shall not be carried away by any
observation in the impugned orders challenged in C.R.P.Nos.384 & 385
of 2008.
M.SASIDHARAN NAMBIAR,
JUDGE
nj.