High Court Kerala High Court

Midas Pre-Cured Treads (P) Ltd vs The Kerala State Road Transport on 4 June, 2008

Kerala High Court
Midas Pre-Cured Treads (P) Ltd vs The Kerala State Road Transport on 4 June, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP.No. 384 of 2008()


1. MIDAS PRE-CURED TREADS (P) LTD.,
                      ...  Petitioner

                        Vs



1. THE KERALA STATE ROAD TRANSPORT
                       ...       Respondent

                For Petitioner  :SRI.RAJIV ABRAHAM GEORGE

                For Respondent  :SRI.K.PRABHAKARAN, SC, K.S.R.T.C.

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :04/06/2008

 O R D E R
                    M.SASIDHARAN NAMBIAR, J.

                       -------------------------------

                      C.R.P.Nos.384 & 385 of 2008

                       -------------------------------

                      Dated this the 4th June, 2008.

                                O R D E R

Petitioner is the plaintiff and respondent is the

defendant in the suit. After closing the evidence and hearing the

arguments, the suit was posted for judgment to 18.2.2008.

Thereafter, learned Sub Judge passed the impugned order challenged

in CRP.No.384/2008, dated 18.2.2008, which reads as follows:-

“Plaintiff represented by Sri.Sonay John. The
written statement filed by Defendant is at variance
with the argument note filed by Defendant.

           Invoices    (Photocopy)     are    note    admitted by
           defendant     in   the   hearing    note.     Hence  a

clarification is required from the side of defendant.

For further hearing. Evidence re-opened.
Judgment not pronounced. Call on 25-2-2008.”

C.R.P.No.384/2008 is filed challenging that order contending that

learned Sub Judge should not have re-opened the evidence, after

arguments were heard and suit was posted for judgment. After the

evidence was re-opened, suit was posted to 25.2.2008. It was again

adjourned and taken up on 3.3.2008. On that day, learned Sub Judge

CRP.Nos.384 & 385/2008

2

passed an order stating that counsel appearing for the defendant

submitted that in the light of the evidence adduced and pleadings,

defendant has to file an application for receiving additional written

statement. Holding that it is to be decided whether an additional

written statement is to be received or not, suit was adjourned to

15.3.2008 observing that it is not fair and proper to deny the

defendant a chance of amending the pleadings, in view of the law laid

down by the Apex Court. On the request of the defendant, suit was

posted after 7 days. That order is challenged in C.R.P.No.385/2008.

2. On hearing the learned counsel appearing for the

petitioner, notice was issued to the respondent and a report was called

for from the Presiding Officer of the trial court. The report was

submitted by the successor of Presiding Officer, as the Presiding Officer

who passed the impugned orders was subsequently transferred in the

General Transfer. The report submitted by the Presiding Officer shows

that on 14.3.2008, respondent filed I.A.No.1608/2008, an application

for amendment of the written statement, and, therefore, the case

stands posted to 28.5.2008. Counsel further submitted that the case

is thereafter posted to this day.

CRP.Nos.384 & 385/2008

3

3. The learned counsel appearing for the petitioner, as

well as the learned counsel appearing for the respondent were heard.

4. The argument of the learned counsel appearing for

the petitioner is that after closing of the evidence and hearing

arguments, the suit was posted for judgment, and at that stage,

Court is not competent to suo motu re-open the evidence as has been

done under the impugned order, dated 18.2.2008. He further argued

that in any case, learned Sub Judge should not have granted an

opportunity to the defendant to file a petition to receive additional

written statement, or found that respondent is entitled to amend the

written statement and in such circumstances, both the orders are to be

quashed.

5. The learned counsel appearing for the respondent

however submitted that subsequent to the impugned orders,

respondent filed an application to amend the written statement and it

is pending, and there is no reason to interfere with the impugned

orders. The learned counsel for the petitioner pointed out that under

proviso to Rule 17 of Order VI of Code of Civil Procedure, no

application for amendment shall be allowed, unless the court comes to

CRP.Nos.384 & 385/2008

4

the conclusion that in spite of due diligence, parties could not have

raised the matter before the commencement of the trial, and as

against this mandate, the court should not have granted an

opportunity to the petitioner to amend the written statement.

6. Order XVIII of Code of Civil Procedure deals with

hearing of the suit and examination of witnesses. Rule 2 provides for

statement and production of evidence. Rule 4 and 5 deals with the

recording of evidence. Rule 17 of Order XVIII enables the Court at

any stage of the suit to recall any witness who has been examined and

to put such questions to him, as the Court thinks fit. It is after

recording the evidence as provided under Order XVIII, Court has to

hear the argument and pronounce the judgment as provided under

Rule 1 of Order XX of Code of Civil Procedure. When the evidence is

closed and arguments are heard, and suit is posted for judgment, it

Court is competent to re-open the suit posted to hear the counsel

appearing for the parties or seek any clarification. Therefore, if the

learned Sub Judge found it necessary to have any clarification, he is

competent to post the case, after re-opening, for hearing the

arguments. Therefore, to that extent, there is no illegality or

irregularity in the order dated 18.2.2008. But the court should not

CRP.Nos.384 & 385/2008

5

have re-opened the suit for evidence, unless it is for the purpose of

exercising the power under Rule 17, and to that extent, order dated

18.2.2008 is illegal. Therefore, C.R.P.No.384/2008 is allowed in part,

quashing the order re-opening the evidence. But the order re-opening

the suit for hearing arguments seeking further clarification is perfectly

in order.

6. As per the impugned order in C.R.P.No.385/2008,

learned Sub Judge has only granted the prayer of the respondent to

file an application to receive additional written statement. The learned

Sub Judge did not decide whether the application to be filed to receive

the additional written statement is to be allowed or not. In such

circumstances, I do not find any illegality in the impugned order dated

3.3.2008. Therefore, that revision is dismissed.

The report of the learned Sub Judge shows that

because of the order, dated 3.3.2008, respondent has filed an

application to amend the written statement under Rule 17 of Order VI

of Code of Civil Procedure. The fact that petition is filed, does not

mean that application is to be allowed. It is for the Sub Judge to

dispose the application, in accordance with law, taking into

CRP.Nos.384 & 385/2008

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consideration proviso to Rule 17 of Order VI of Code of Civil

Procedure. The Sub Judge shall not be carried away by any

observation in the impugned orders challenged in C.R.P.Nos.384 & 385

of 2008.

M.SASIDHARAN NAMBIAR,
JUDGE

nj.