IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 927 of 2010(O)
1. P.R.GOPALAKRISHNAN
... Petitioner
Vs
1. BANK OF INDIA
... Respondent
For Petitioner :SRI.J.S.AJITHKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :30/11/2010
O R D E R
THOMAS P JOSEPH, J.
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O.P(C).No.927 of 2010
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Dated this 30th day of November, 2010
JUDGMENT
Plaintiff in O.S.No.229 of 2002 of the court of learned
Additional Sub Judge-I, Thiruvananthapuram is the petitioner
before me challenging Ext.P8, common order to the extent it
concerned dismissal of I.A.No.4583 of 2006. Petitioner is an
Advocate practising in the courts at Thiruvananthapuram and
sued the defendants for realisation of his professional fee and for
damages. Respondent was impleaded as defendant No.12. In the
course of the suit petitioner filed application to serve
interrogatories on the respondent and that application was
allowed. Pursuant to that order, respondent filed Exts.P2 and P3,
counter affidavits. Petitioner was not satisfied with the said
affidavits and thereon requested the court to direct respondent to
file proper affidavit and produce documents. Petitioner says that
accordingly, court directed respondent to file proper affidavit and
produce documents but in spite of repeated directions and giving
sufficient opportunity respondent did not comply with the said
orders. Thereon, petitioner filed Ext.P5, I.A.No.4583 of 2006 for
examination of respondent/defendant No.12 on Exts.P2 and P3,
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counter affidavits filed on its behalf. Petitioner also filed
I.A.No.1451 of 2010 for examination of defendant No.1. Yet
another application filed is Ext.P7, intended to strike off defence
of respondent/defendant No.12 for alleged non compliance of the
order to file proper affidavit and produce documents. Learned
counsel contends that in the meantime petitioner was examined
as PW1 on 28-01-2009 and the case was posted on 09-02-2009
for further evidence. Now, before examination of witnesses on
the side of petitioner is completed the court has posted the case
for evidence of defendants. Challenge is to Ext.P8, order to the
extent it concerned Ext.P5, I.A.No.4583 of 2006. Learned counsel
has contended that under Rule 2 of Order XIX and Rules 11 and
21 of Order XI of the Code of Civil Procedure (for short, “the
Code”) court ought to have exercised the discretion in favour of
petitioner to permit him cross examine respondent regarding
Exts.P2 and P3, counter affidavits. Learned counsel has also
placed reliance on the decision in Jortin Antony Vs. Sree
Padmanabha D. Marthanda Varma (2001(1) KLT 511) and
Suresh Babu Vs. Food Corporation of India (2007(4) KLT
135).
O.P(C).No.927 of 2010
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2. Ext.P8, order to the extent I.A.No.1451 of 2010 for
examination of defendant No.1 was dismissed, is not under
challenge. Challenge is to the dismissal of Ext.P5, I.A.No.4583 of
2006. No doubt, it is not as if under no circumstances a party
has no right to cross examine the opposite party but normally a
party is not allowed to examine the opposite party as his witness.
It depends on the facts and circumstances of each case whether
such a power should be exercised and court should permit the
party to examine the opposite party as witness of his side. Under
Rule 2 of Order XIX of the code where the court is authorised to
take evidence by affidavit, the court has the discretion to permit
a party to cross examine the opposite party on the affidavit he
has sworn. It is not as if the party has a right for examination of
the deponent but, it is a case where the court is vested with the
power to summon deponent for examination. It is not disputed
that a reply to the interrogatories can be in the form of affidavit
as stated in Rule 11 of Order XI of the Code. If that be so, it is not
a case where petitioner has any right for examination of
respondent on the counter affidavit.
3. Learned Sub Judge has stated reasons why cross
examination of respondent is not to be permitted. That discretion
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having been exercised by the court below in the proper manner, I
do not think that it is case where this court should exercise
supervisory jurisdiction under Article 227 of the Constitution.
The challenge to the common order to the extent it concerned
dismissal of I.A.No.4583 of 2006 has to fail.
4. Learned counsel submits that Ext.P7, application to
strike off defence of respondents as provided under Rule 21 of
Order XI of the Code is pending consideration before the learned
Sub Judge. If any such application is pending necessarily learned
Sub Judge has to dispose of that application as provided under
law and I direct learned Sub Judge to do so.
5. Yet another grievance aired by learned counsel is that
even before evidence of petitioner was completed the case is
posted for evidence of defendants. Learned counsel contends that
the case is posted for evidence of defendants this day. Learned
counsel has invited my attention to Ext.P4, witness list where
sixteen witnesses are seen cited on the side of petitioner.
Learned counsel requested that petitioner may be given
opportunity to adduce evidence. I direct learned Sub Judge to
give opportunity to the petitioner to adduce his evidence. If
necessary, it will be open to the petitioner to seek review of any
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order posting the case for evidence of defendants and seek
opportunity for examination of his witness. If any such
application is filed learned Sub Judge shall consider that
application and pass appropriate orders after hearing counsel for
respondent and other defendants as well.
This petition is disposed of as above.
(THOMAS P JOSEPH, JUDGE)
Sbna/-