Kunnathadathil Kutti Hassan vs M. Abdul Kareem @ Kunhippa on 17 January, 2007

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 1993 of 2007(K)


1. KUNNATHADATHIL KUTTI HASSAN,
                      ...  Petitioner

                        Vs



1. M. ABDUL KAREEM @ KUNHIPPA,
                       ...       Respondent

                For Petitioner  :SRI.BABU S. NAIR

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :17/01/2007

 O R D E R
                         M.SASIDHARAN NAMBIAR,J.

                       --------------------------

                          W.P.(C)NO.1993 OF 2007

                       -------------------------

             DATED THIS THE 17th DAY OF JANUARY, 2007


                                     JUDGMENT

Petitioner is respondent in O.P.(Election)45/05 on the file of

Munsifff Court, Tirur. Respondent is petitioner therein. Respondent

filed I.A.955/06 for permission to examine the witnesses shown in the

witness schedule. Petitioner filed Ext.P4 objection contending that the

purpose of examination of witnesses are not shown and application is

not in confirmity with sub rule 2 of rule 1 of Order XVI of Code of Civil

Procedure and therefore it cannot be allowed. Learned Munsiff under

Ext.P5 order allowed the application. It is challenged in this petition

filed under Article 227 of Constitution of India.

2. Learned Counsel appearing for petitioner was heard.

3. Arguments of learned Counsel appearing for petitioner was

that under Sub rule 2 of rule 1 of Order XVI, petition to summon the

witnesses must reveal the purpose for which the witnesses are to be

examined and the application filed by respondent does not show the

purpose for which the witnesses are examined and therefore learned

Munsiff should not have permitted the witnesses to be examined

inspite of the objection raised by petitioner. Learned Counsel also

W.P.(c)1993/07 2

pointed out that under proviso to Section 94 (1) of Kerala

Panchayat Raj Act, Court has a discretion to refuse to examine any

witness, if it is of the opinion that evidence of such witness or

witnesses is not material for the decision of the petition or that the

party tendering such witness or witnesses is doing so in frivolous

ground or with a view to delay the proceedings and unless the

purpose of which witnesses are examined is shown in the petition,

Munsiff cannot exercise the discretion provided under Section 94 (1)

of the Act and in such circumstances, the order is to be set aside.

Learned Counsel also argued that petitioner cannot be put in the

dark on the purpose for which the witnesses are to be examined

and therefore Ext.P5 order is bad.

4. On hearing learned Counsel appearing for petitioner and

on going through Ext.P5 order, I do not find any infirmity in Ext.P5

order warranting interference in exercise of the extraordinary

jurisdiction of this Court under Article 227 of Constitution of India.

Learned Munsiff considered the question and exercised the

discretion, vest on him. Proviso to Section 94(1) Court enables the

Munsiff to exercise the discretion by refusing to examine the

witnesses or to allow to examine the witnesses. In the case of

refusal Munsiff has to record the reasons. When Munsiff is allowing

the party to examine the witnesses, reasons are not to be

recorded. Learned Munsiff found that no prejudice will be caused to

W.P.(c)1993/07 3

petitioner by allowing examination of witnesses and the purpose of

examination of the witnesses is clear from the election petition.

That discretion properly exercised by the Munsiff cannot be

interfered in exercise of the supervisory or extraordinary jurisdiction

of this Court.

In such circumstances, petition is dismissed.

                                            M.SASIDHARAN NAMBIAR,JUDGE




Acd


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