High Court Kerala High Court

V.Rajendra Prasad vs Sajan Thomas Abraham on 6 December, 2010

Kerala High Court
V.Rajendra Prasad vs Sajan Thomas Abraham on 6 December, 2010
       

  

  

 
 
  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.
                           --------------------------------------
                            O.P.(C) No.1006 of 2010
                           --------------------------------------
                   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

OP(C) No.1006/2010

2

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

OP(C) No.1006/2010

3

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

OP(C) No.1006/2010

4

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