IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 706 of 2010()
1. M.C.JACOB AND ANOTHER
... Petitioner
Vs
1. THE COMMISSIONER AND SECRETARY, REVENUE
... Respondent
For Petitioner :SRI.K.HARILAL
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :15/11/2010
O R D E R
THOMAS P. JOSEPH, J.
--------------------------------------
O.P.(C) No.706 of 2010
--------------------------------------
Dated this the 15th day of November, 2010.
JUDGMENT
Plaintiffs in O.S.No.517 of 2002 of the court of learned Munsiff,
Kayamkulam challenge Exts.P4 and P6, orders. They filed the suit for a
declaration of title and possession and cancellation of a sale deed executed in
favour of respondent No.10 and subsequent sale deeds on the allegation that
respondent No.10 got sale deed No.3735 of 1984 executed fraudulently with the
connivance of respondent No.6, the Sub Registrar. Petitioners wanted
respondent Nos.6 and 10/defendant Nos.6 and 10 to be examined as witnesses
on their side and the learned Munsiff passed Ext.P3, a single word order –
“allowed”. The successor-in-office, when respondent No.6 was summoned as
witness and was before court found that he is one of the defendants, felt that it
is not a proper procedure to permit petitioners/plaintiffs to examine defendants
as witnesses on their side and reviewed Ext.P3, order vide Ext.P4, order.
Petitioners filed Ext.P5, application to review Ext.P4, order which resulted in
Ext.P6, order. The application for review was dismissed. Hence this petition.
Learned counsel for petitioners contend that though it could be said that a party
has no right to examine opposite party as his witness there is no prohibition in
examining the opposite party if circumstances warranted that. Learned counsel
contended that learned Munsiff was not correct in reviewing Ext.P3, order vide
Ext.P4 order.
OP(C) No.706/2010
2
2. The power for suo motu review is confined to procedural orders.
Here, the application to examine respondent Nos.6 and 10 was allowed by the
learned Munsiff, it is seen from Ext.P3, order by a non-speaking order and it is
not clear whether learned Munsiff had applied mind to the relevant decisions on
the point and considered question whether respondent Nos.6 and 10 could be
examined as witnesses on the side of petitioners. Learned Munsiff has passed
an order mechanically. The successor-in-office, alive to the issue thought that
examination was impermissible and observed that by a mistake respondent
No.6 was summoned as witness. It is accordingly that Ext.P3, order was
reviewed. Though there is a challenge to Ext.P4, order in this proceeding
now I am concerned with the question whether Ext.P6, order dismissing Ext.P5,
application is correct or not.
3. There are allegations in the plaint against respondent Nos.6 and 10
in that the latter is said to have obtained sale deed No.3735 of 1984 executed
fraudulently with the connivance of respondent No.6, the Sub Registrar. In such
a situation it was not proper for learned Munsiff to allow respondent Nos.6 and
10 to be examined as witnesses for petitioners. This Court in Narayana Pillai
v. Kallyani Amma (1963 KLT 537) stated that practice of a party causing
his opponent to be summoned as a witness was disproved in rather strong
terms by their lordship of the Privy Council and as a matter of right a party could
OP(C) No.706/2010
3
not examine the opposite party as a witness. Same view was taken in Syed
Mohammed v. Aziz (1990 (2) KLT 952). Later a Division Bench of this
Court in Jortin Antony v. S.P.D.Marthanda Varma (2000 (2) KLT
680) considered the question and held that a party to the suit does not have a
right to summon opposite party to give evidence. However, referring to Rule 14
of Order XVI of the Code of Civil Procedure (for short, “the Code”) it was held
that it is really left to the court, possibly after evidence of all the witnesses made
available is completed, to consider whether it is necessary to examine one of the
parties and compel that party to give evidence. Without referring to any of the
above authoritative pronouncements learned Munsiff has passed Ext.P3, order
saying “allowed”. That order cannot stand scrutiny of law. In that situation I am
not inclined to interfere with Ext.P4, order reviewing Ext.P3, order.
4. So far as Ext.P6, order refusing to review Ext.P4, order is
concerned, learned Munsiff has referred to the decisions on the point and said
that petitioners cannot compel their opponents to be examined as witnesses on
their side. Having regard to the decisions referred to above I do not find reason
to interfere. But I make it clear that in view of the decision in Jortin Antony v.
S.P.D.Marthanda Varma the impugned order will not prevent learned
Munsiff invoking Rule 14 of Order XVI of the Code if circumstances warranted
that at the appropriate stage. It is made clear that if petitioners wanted to prove
OP(C) No.706/2010
4
any document from the office of Sub Registrar concerned, it is open to them to
summon appropriate person from that office and prove the document as
provided under law.
With the above observations, this petition is dismissed.
THOMAS P.JOSEPH,
Judge.
cks