IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 557 of 2009(N)
1. G.SOMAN, MANAGING PARTNER,HOTEL AKASH,
... Petitioner
Vs
1. M/S E.C.E.INDUSTRIES LTD,
... Respondent
2. M/S E.C.E.INDUSTRIES LTD,E.C.E.HOUSE,
For Petitioner :SRI.D.SAJEEV
For Respondent :SRI.SABU S.KALLARAMOOLA
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :22/10/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.557 of 2009 - N
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Dated this the 22nd day of October, 2009
J U D G M E N T
The writ petition is filed seeking the following reliefs:
“i) To call for the records, which may leads to
the passing of Ext.P3 order and quash the same as
illegal, arbitrary nd one passed without any application
of mind.
ii) To issue a writ of mandamus or other
appropriate writ direction or order commanding the 1st
Additional Sub Court, Thiruvananthapuram to reconsider
I.A.No.6759/2008 and pass orders in the same in its
merits after giving a posting to the said I.A. before court
and after affording the petitioner an opportunity to
present his case.
iii) To issue a writ of mandamus or other
appropriate writ direction or order commanding the 1st
Additional Sub Court, Thiruvananthapuram to reconsider
I.A.No.6640/2008 and pass orders on the same after
taking note that the petitioner has every right to adduce
evidence through his witness and the witness was
discharged by the trial court holding that he is a
stranger to the agreement.”
2. Petitioner is the defendant in O.S.No. 338 of 2001 on
the file of the First Additional Sub Court, Thiruvananthapuram.
W.P.(C).No.557 of 2009 – N
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Suit is one for money and the respondents are the plaintiffs.
Challenge in the writ petition is against Ext.P3 order passed by
the learned Sub Judge declining the request made by the
petitioner in two applications, one for staying the trial of the suit
till completion of the proceedings before the Consumer Disputes
Redressal Forum, Kollam, and the other application for reviewing
the order passed by the court for closing the evidence in the
case. Both the applications moved by the defendant were
dismissed vide Ext.P3 order. Propriety and correctness of Ext.P3
order is challenged in the writ petition invoking the supervisory
jurisdiction vested with this Court under Article 227 of the
Constitution of India.
3. I heard the counsel for the petitioner. Though the
respondent has entered appearance none turned up to argue on
behalf of the respondents.
4. I heard the counsel for the petitioner.
5. Counsel for the petitioner submitted that the suit was
previously dismissed for default. But later, restored subject to
payment of cost of Rs.25,000/-. When the case was posted for
remitting the cost ordered there was a change in the presiding
W.P.(C).No.557 of 2009 – N
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officer of the court and without giving respect to the earlier order
the successor officer proceeded with the trial of the case. Till
date the cost ordered for restoring the suit has not been paid by
the respondents/plaintiffs is the submission of the counsel. After
closing of the evidence of the plaintiffs and their witness an agent
of the defendant was presented for examination as his witness.
The court below declined to examine that witness holding that
the defendant who has not personally appeared cannot give
evidence in the case. The evidence of the defendant was
thereupon closed, is the submission of the counsel. To review
that order, an application was moved later. While that review
petition was pending consideration another application was also
moved in view of the decision rendered by the State Consumer
Forum in an appeal over the very same disputes covered by the
suit, for staying the trial of the suit till a decision is rendered by
the Consumer Redressal Forum to which the State commission
has remitted the matter for fresh consideration. The court below
ignoring the facts and circumstances involved passed Ext.P3
order dismissing both petitions, according to the counsel.
Perusing Ext.P3 order passed by the court below, it is seen, that
W.P.(C).No.557 of 2009 – N
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once the court declined examination of the witness produced by
the defendant, the learned counsel appearing for the defendant
had represented that the evidence could be closed as there was
no further evidence for the defendant. So much so, what is given
expression to in the order of the court, as to what had transpired
in the trial before court, cannot be canvassed before this Court as
not correct. If it was incorrect petitioner should have filed a
review before the court concerned. However, having regard to
the submissions made by the counsel with reference to what is
stated in Ext.P3 order, I find the refusal of the court to examine
the witness produced by the defendant for the reason that he has
not personally appeared to give evidence cannot be approved. It
is also brought to my notice that the witness produced was
named in the witness schedule filed by the defendant. Naturally,
an opportunity should have been extended to the defendant to
examine his witness. The defendant did not mount the box and
gave evidence in support of his contentions cannot be taken as a
ground to deny opportunity to him to examine any other witness
in the case. So much so, the order passed by the court below for
closing the evidence and, later, rejecting the review petition
W.P.(C).No.557 of 2009 – N
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moved by the defendant cannot be sustained. However, I do not
find any impropriety in the order passed by the court below in
declining to stay the trial of the suit pending disposal of the
proceedings before the Consumer Disputes Redressal Forum. So
much so, Ext.P3 order is liable to be interfered only in respect of
the closing of the evidence without giving opportunity to the
defendant to lead evidence, and it is ordered accordingly. The
learned Sub Judge is directed to give an opportunity to the
defendant to tender evidence on his behalf and then dispose the
suit, as expeditiously as possible, at any rate, within a period of
three months from the date or receipt/production of a copy of
this judgment.
Writ petition is disposed as indicated above.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-