IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18379 of 2009(O)
1. KARUNAKARAN, AGED 68, S/O.LATE RAMAN,
... Petitioner
Vs
1. JOY MATHEW, AGED 54,
... Respondent
For Petitioner :SRI.VARGHESE C.KURIAKOSE
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :01/07/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.18379 of 2009 - O
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Dated this the 1st day of July, 2009
J U D G M E N T
This writ petition is filed seeking the following reliefs:
“To call for the records leading to Ext.P9 common
order examine the same and set aside the same holding
the same as illegal and perverse and allow
I.A.No.625/2009, 627/2009 and 657/2009, Exts.P3, P4
and P5 applications and permitting the petitioner to
reopen the evidence recall himself and adduce further
evidence in O.S.No.98/2006 pending before Subordinate
Judge’s Court, Cherthala and thus render justice to the
petitioner if necessary by issuing a writ in the nature of
certiorari”
2. Petitioner is the plaintiff inO.S.No.98/2006 on the file
of the Sub Court, Cherthala. Suit is one for money based on a
pronote. Respondent is the defendant in that suit. During the
course of recording evidence of the petitioner, counsel for
defendant adverted to certain aspects with reference to the suit
notice issued. It appears, the defendant wanted to project a case
with reference to the notice that the transaction is different from
that pleaded in the plaint. Some admissions were also made by
W.P.(C).No.18379 of 2009 – O
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the petitioner/plaintiff during the course of examination in
relation to the notice. Petitioner/plaintiff, after completion of his
evidence, moved two applications before the court, one for
admitting additional list of witnesses to examine the counsel who
issued the notice and another for summoning the manager of the
bank from which he is stated to have collected the money for
advancing the amount to the defendant in respect of which the
pronote is alleged to have been issued. Another petition was also
moved to reopen the evidence. The applications were opposed
by the respondent/defendant filing written objections. The
learned Sub Judge, after hearing the counsel on both sides
dismissed all the applications by a common order. Ext.P9 is the
copy of that order. The propriety and correctness of Ext.P9 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.
4. Learned counsel for the petitioner submitted that the
dismissal of the applications, in the facts and circumstances
W.P.(C).No.18379 of 2009 – O
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involved in the case, was improper and at any rate,
petitioner/plaintiff could have been given an opportunity to
explain the answers given by him in his cross examination by
examining the witnesses named in his additional witness list.
Inviting my attention Sections 17 and 21 of the Indian Evidence
Act that admissions can be explained by a party the learned
counsel urged for interfering with Ext.P9 order passed by the
court below. Perusing Ext.P9 order with reference to the facts
and circumstances involved and submissions made by the learned
counsel, I find very many observations expressed by the learned
Sub Judge could have been avoided. Some observations made in
the order indicate that the learned Sub Judge had already pre-
judged the issue before adjudication of the disputes involved.
Having regard to the facts and circumstances, I find that the
petitioner/plaintiff can be given an opportunity for his recalling
and further examination to furnish his explanation, if any. In
these matters, the court has to take note that the party will get
an opportunity to explain the mistakes, if any, which occurred
during their cross examination only before the trial court.
W.P.(C).No.18379 of 2009 – O
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Similarly, if the petitioner desires to produce the pass book from
the bank as observed by the court in Ext.P9 order, that also could
be permitted. The petition filed by the plaintiff for reopening the
evidence shall be considered by the court below, in the light of
the observations made above.
Subject to the above observations this writ petition is
closed.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-