IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 1006 of 2010(O)
1. V.RAJENDRA PRASAD, AGED 58 YEARS,
... Petitioner
Vs
1. SAJAN THOMAS ABRAHAM,
... Respondent
For Petitioner :SRI.RAJU JOSEPH (SR)
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :06/12/2010
O R D E R
THOMAS P. JOSEPH, J.
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O.P.(C) No.1006 of 2010
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Dated this the 6th day of December, 2010.
JUDGMENT
The challenge in this petition is to Ext.P5, order dated November 23,
2010 passed by the learned Additional District Judge -II, Thiruvananthapuram
on I.A.No.4120 of 2010 in O.S.No.3 of 2010, an action against passing off.
Respondent/plaintiff had cited certain witnesses on his side when the case was
included in the list on 13.09.2010. Respondent and a witness were examined
and Exts.A1 to A3 were marked. It was represented that evidence of
respondent was closed. On 18.09.2010 petitioner/defendant was examined and
Exts.B1 to B14 were marked. Later his witnesses also were examined. Then
came I.A.No.4120 of 2010, an application from respondent to re-open the case
as he wanted to examine certain witnesses who were cited in the original witness
schedule but given up. That application was opposed by the petitioner
contending that attempt is to fill up lacuna in the evidence of
respondent/plaintiff and the witnesses. Learned Additional District Judge,
according to the counsel, by a non-speaking order has allowed the application
without adverting to the relevant facts as well as the amendment to Order XVIII
of the Code of Civil Procedure (for short., “the Code”). Learned counsel
contended that the power of court to summon any witness after evidence is
closed conferred under Sub-rule (4) of Rule 2 and Rule 17A of Order XVIII of the
Code has been taken away by the amendment of 2002 and hence the court
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below could not have allowed I.A.No.4120 of 2010, at any rate, without stating
cogent reasons for that. Learned counsel asserted that examination of witness
on the side of respondent at this stage would prejudice the case of petitioner.
2. Sub-rule (4) of Rule 2 of Order XVIII of the Code omitted by the
amendment of 2002 stated that “notwithstanding anything contained in this rule,
the Court may, for reasons to be recorded, direct or permit any party to examine
any witness at any stage.” Rule 17A (also deleted by the said amendment)
stated that “where a party satisfies the Court that, after the exercise of due
diligence, any evidence was not within his knowledge or could not be produced
by him at the time when that party was leading his evidence, the Court may
permit that party to produce that evidence at a later stage on such terms as may
appear to it to be just”. Argument is that by deletion of the said provisions
court lacked jurisdiction to allow examination of the witness after the evidence
of the party is closed. Learned counsel submitted that the above amendments
were made for the purpose of speedy trial of the suit.
3. If that was the object of deleting the said provisions, certainly it was
not to take away the power of court to permit examination of witness after the
evidence was closed. I am not persuaded to think that under any
circumstances the court is powerless after the evidence of a party is closed to
allow him adduce further evidence. That obviously was not the intent of the
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legislature when the above said provisions were deleted from the Code by
amendment of 2002. The above said provisions were intended to ensure
speedy trial. Certainly the legislature wanted to restrict the right of the parties
to examine witness at any time. Assuming that right of the party is restricted,
that does mean that the power of court to allow examination of witness at a later
stage if circumstances warranted that, is taken away. In the absence of specific
provision, court can resort to Section 151 of the Code ofcourse, bearing in mind
the laudable object legislature had in mind while deleting the above said
provisions from Order XVIII of the Code.
4. In this case witnesses were cited in the list even before the case
taken up for trial on 13.09.2010. But for some reason or other, respondent
thought that their examination is not necessary and hence without their
examination his evidence was closed. Respondent has stated reasons for
summoning the witnesses. Objection of petitioner is that examination of
witness at this stage would prejudice him and that attempt is to fill up ‘lacuna’.
‘Lacuna’ is the inherent vedge in the case of respondent. Having heard
learned counsel for petitioner I am not inclined to think that this is a case where,
if permission is granted to the respondent to examine witnesses shown in the
original witness schedule though later given up, it would prejudice petitioner.
After all if petitioner wanted to adduce further evidence consequent to the
evidence being adduced by the respondent, it is open to the petitioner to
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request learned Additional District Judge to permit him adduce further evidence
and if any such request is made learned Additional District Judge shall consider
that request and pass appropriate orders having regard to the facts and
circumstances of the case
The petition is dismissed with the above observation.
THOMAS P.JOSEPH,
Judge.
cks