IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28547 of 2009(O)
1. K.M.GEETHA VIJAYAN,
... Petitioner
2. K.S.SHYLA MADHU,
3. SUJATHA JAYAPRAKASH,
Vs
1. K.GOPAKUMARAN,
... Respondent
2. SUDHA,
3. THE CORPORATION OF THIRUVANANTHAPURAM,
4. MOHANKUMAR,
5. VIJAYAN,
6. KALA,
7. AMARNATH,
For Petitioner :SRI.J.S.AJITHKUMAR
For Respondent :SRI.G.S.REGHUNATH
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :15/10/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.28547 of 2009 - O
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Dated this the 15th day of October, 2009
J U D G M E N T
Writ petition is filed seeking the following reliefs:
“i) To issue a writ of certiorari, order or direction
to the 2nd Additional Sub Court, Thiruvananthapuram to
call for the records leading to Exhibit P3 and quash the
same.
ii) To issue a writ of mandamus, order or
direction to the 2nd Additional Sub Court,
Thiruvananthapuram to give opportunity to the petitioner
to adduce evidence pursuant to I.A.No.4447/2009 in
O.S.No.422/1999.
2. Petitioners are the plaintiffs in O.S.No.422 of 1999 on
the file of the 2nd Additional Sub Court, Thiruvananthapuram.
Suit is one for recovery of possession on the basis of title and for
other reliefs, and the respondents are the defendants. That
application moved by the petitioner/plaintiff seeking appointment
of a commission to examine two witnesses, one of whom residing
at Thirunelveli and the other at Chennai, was objected to by the
defendants. Learned Sub Judge after hearing both sides
sustaining the objections raised by the defendants dismissed that
W.P.(C).No.28547 of 2009 – O
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application. Propriety and correctness of that order , copy of
which is produced as Ext.P3, is challenged in the writ petition
invoking the supervisory jurisdiction vested with this Court under
Article 227 of the Constitution of India.
3. Notice being given respondents have entered
appearance through counsel. I heard the counsel on both sides.
4. At the time of hearing, it is brought to my notice, the
suit filed by the plaintiff is jointly tried with six other suits. Three
of such suits, according to the learned counsel for the petitioners,
are filed by them, and the rest against them by some others. It
is the further submission of the counsel that opposite parties in
the suit instituted by them and also in which they appear as
defendants are defended by a common counsel, which is
disputed by the counsel for the respondents as not correct. A
joint trial of all suits, it is conceded by both sides, is ordered by
the court and pursuant to which trial has already commenced
with evidence already partly recorded. Now, after examination of
two witnesses on commission, it is submitted, the case has been
again included in the special list for trial in December, 2009.
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Learned counsel for the respondent inviting my attention to Order
XXVI Rule 4 and also Order XVI Rule 19 of the Code of Civil
procedure vehemently contended that on the facts and
circumstances involved and the disputed questions arising for
consideration examination of two witnesses by commission as
sought for by the petitioners/plaintiffs is not justifiable and,
further, as there is no impropriety or illegality in Ext.P3, it does
not warrant any interference. However, the learned counsel for
the petitioners/plaintiffs contend that the court below has not
applied its mind why the application for commission cannot be
granted and the reasons set out in Ext.P3 order, especially in
view of the amendment made to the CPC by which examination
of witness by commission has become the order of the day,
warrants interference.
5. After going through Ext.P3 order, I find the request
made by the petitioners to examine the witnesses by way of
commission was declined for the sole reason that it is easy for
the petitioner to produce the witnesses before the court. The
reason so set out on its face value cannot be accepted as a valid
W.P.(C).No.28547 of 2009 – O
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reason for declining the request made by the petitioners. Having
regard to the totality of the facts and circumstances involved in
the case and the disputed questions arising for adjudication the
practicability of examining the witnesses, admittedly, residing at
far off places, on commission, has to be examined and
scrutinized by the court with reference to the objections
canvassed, and appropriate order after such scrutiny in
accordance with law has to be passed. Since several suits are
jointly tried and without sufficient materials placed as to in what
way they are interconnected and to what extent the evidence
sought to be tendered through the witnesses who are sought be
be examined on commission is likely to affect one or more such
suits, this Court cannot issue any guideline in the disposal of the
commission application other than what is indicated above. I
make it clear that the observations of this Court shall not be
construed or interpreted as in favour of or against the
entertainability of the commission application, but only that since
the impugned order does not reflect cogent and convincing
reason for disallowing the application it cannot be sustained.
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Setting aside Ext.P3 order I direct the court below to examine the
matter afresh and pass appropriate orders. Both parties can
canvass whatever circumstances in their favour on the merits of
the commission application arising for consideration before the
court below.
Subject to the above observation, writ petition is closed.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-