IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 20TH DECEMBER 2011 / 29TH AGRAHAYANA 1933 OP(C).No. 2517 of 2011(O) ------------------------------------ [OS.NO.23/2008 OF SUB COURT,KOCHI] .................... PETITIONERS: --------------------- 1. PALM FIBRES & YARNS TRADING CO. A PARTNERSHIP FIRM HAVING ITS PRINCIPAL PLACE OF BUSINESS AT 11/1/2/3/4 AND 5 CALVATHY, FORT COCHIN, KOCHI- 682 001, REPRESENTED BY ITS MANAGING PARTNER MR.MATHEW JOSEPH. 2. MATHEW JOSEPH, S/O.OUSEPH, VARIAMPARAMBIL, MANAPPURAM, CHERTHALA, ALAPPUZHA DISTRICT. BY ADVS. SRI.MATHEW JOHN (K), SRI.DOMSON J.VATTAKUZHY. RESPONDENTS: ------------------------ 1. SURYA SAMUDRA HOLIDAYS RESORTS (P) LTD., A COMPANY REGISTERED UNDER THE COMPANIES ACT 1956, HAVING ITS REGISTERED OFFICE AT PULINKUDI, MULLUR POST, THIRUVANANTHAPURAM- 695 521, REPRESENTED HEREIN BY ONE OF ITS PRINCIPAL OFFICERS/DIRECTOR,M.S.RAM,S/O.S.MAHADEVAN PILLAI. 2. MR.B.C.DOMINC, S/O.P.CELLESTINE,SOLE PROPRIETOR, APPLE ONE HOTELS AND HOLDINGS HAVING OFFICE AT 2A,THIRUNALAI TOWERS, AVINASHI ROAD, COIMBATORE- 641 018. R1 BY ADVS. SRI.E.K.NANDAKUMAR, SRI.K.JOHN MATHAI, SRI.P.BENNY THOMAS, SRI.P.GOPINATH, SRI.JOSON MANAVALAN, R2 BY ADVS. SRI.S.VINOD BHAT, SRI.NELSON J.MANAYIL, SRI.K.A.SHAJI MATHEW, SRI.LEGITH T.KOTTAKKAL. THIS OP (CIVIL) HAVING BEEN FINALLLY HEARD ON 20/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.2517/2011-O: APPENDIX PETITIONERS' EXHIBITS:- EXT.P.1: COPY OF THE PLAINT FILED BY THE RESPONDENT. EXT.P.2: COPY OF THE WRITTEN STATEMENT DTD. 22/02/2008. EXT.P.3: COPY OF THE WRITTEN STATEMENT FILED BY THE R.2. DTD. 21/05/2008. EXT.P.4: COPY OF THE AFFIDAVIT AND PETITION FILED BY THE PETITIONER DTD. 03/06/2011. EXT.P.5: COPY OF THE OBJECTION DTD. 06/06/2011. EXT.P.6: COPY OF THE COUNTER AFFIDAVIT DTD. 06/06/2011. EXT.P.7: COPY OF THE ORDER DTD. 15/07/2011 IN I.A. NO. 554/2011 IN O.S. 23/2008. RESPONDENTS' EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.2517 of 2011 --------------------------------------- Dated this 20th day of December, 2011 JUDGMENT Ext.P7, order passed by the learned Sub Judge, Kochi on 15.07.2011 on I.A.No.554 of 2011 (Ext.P4) in O.S.No.23 of 2008 is under challenge. 2. First respondent filed the suit for a decree for specific performance of the M.O.U dated 01.11.2007 said to be executed between first and second respondents, the latter allegedly acting as representative of petitioners/defendants 1 and 2 for sale of the suit property. According to the first respondent, it was by virtue of the M.O.U dated 07.12.2006 that petitioners (allegedly) authorised second respondent to represent them in the M.O.U dated 01.11.2007. Petitioners filed Ext.P2, written statement contending, inter alia that they have not executed the M.O.U dated 07.12.2006 in favour of second respondent/third defendant and that the said M.O.U is the result of forgery. On issues framed by the learned Sub Judge, first respondent adduced evidence. After closure of evidence of the first respondent, petitioners filed Ext.P4, application for a direction to the second respondent/third defendant to adduce his evidence, if any before O.P(C).No.2517 of 2011 -: 2 :- petitioners adduced their evidence. Respondents 1 and 2 resisted that application by Exts.P5 and P6, counters. Learned Sub Judge by Ext.P7, order dismissed the application stating that there is no special reason to invoke the inherent power of Court and direct the second respondent/third defendant to adduce evidence before petitioners did so. Ext.P7, order is under challenge. 3. Learned counsel for petitioners contended that though Order XVIII or any other provision in the Code of Civil Procedure (for short, "the Code”) does not regulate the manner in which parties are to adduce evidence and Rule 1 of Order XVIII only states about right of plaintiffs to begin, invoking the inherent power of Court and the provisions underlying burden of proof and shifting of onus of proof in Secs.101 to 111 of the Indian Evidence Act (for short, "the Act”) it is within the power of the Court to direct second respondent to adduce his evidence if any, before petitioners went into their evidence. Since second respondent/third defendant is vigorously supporting the case set up by the first respondent regarding execution of the M.O.U dated 07.12.2006 which according to the petitioners is the result of forgery, it is only just, proper and necessary to prevent O.P(C).No.2517 of 2011 -: 3 :- prejudice to the petitioners that learned Sub Judge directed the second respondent to adduce his evidence if any, before petitioners started to adduce evidence. It is contended that if on the other hand, going by the normal rule petitioners are to adduce evidence and thereafter second respondent/third defendant adduces evidence, it is possible for the second respondent to adduce evidence to cover up the evidence produced by petitioners and thus cause prejudice to the petitioners. Learned counsel has placed reliance on the decision in Namala Govindu Vs. B.Lakshmanna and Anr. (2008(1) ALT 630) and Synopsis 13 from AIR Manual, Volume V, 5th Edition Page 793. It is also pointed out by the learned counsel from the decision in Laxmi Narayan Vs. Baburam (AIR 1997 Madhya Pradesh 191) that the stage at which petitioners should make such a request is after first respondent/plaintiff adduced evidence. 4. Learned Senior Advocate for the second respondent argued that as contemplated under Rule 3 of Order XVIII of the Code issues between petitioners/defendants 1 and 2 and the second respondent are to be worked out among them and there is no reason why deterring from the normal rule second respondent O.P(C).No.2517 of 2011 -: 4 :- must be directed to adduce evidence before petitioners adduced their evidence. It is also contended by learned counsel that if at all any prejudice is caused to the petitioners, it is open to the learned Sub Judge to allow petitioners adduce further evidence on the issues involving petitioners and second respondent/third defendant. 5. Rule 1 of Order XVIII of the Code only refers to the right of first respondent/plaintiff to begin evidence. But, the rule regarding burden of proof and shifting of onus of proof can guide the situation. Though, burden of proof remains static and is always on the person who wishes the Court to believe the existence or non existence of a fact which he pleads, depending on the nature of evidence adduced the onus of proof would shift. Assuming that the second respondent/third defendant and witnesses go into the box and give evidence regarding execution of the M.O.U dated 07.12.2006 necessarily since second respondent is supporting the case of first respondent as regards execution of the M.O.U dated 07.12.2006, it is the first respondent who has to first cross examine the second respondent and his witnesses. It is thereafter that petitioners are to cross examine the second respondent and his witnesses. That is O.P(C).No.2517 of 2011 -: 5 :- because such a course is necessary to avoid prejudice being caused to the petitioners by the first respondent eliciting answers from the second respondent and witnesses after cross examination of petitioners is over. If on the other hand the second respondent and witnesses are first cross examined by the first respondent, petitioners would get the opportunity to cross examine on the evidence which second respondent and witnesses might give in cross examination by the first respondent. The same principle can be applied in the matter of adducing evidence also. 6. It is not disputed that execution of the M.O.U dated 07.12.2006 which according to the respondents confers power on second respondent to represent petitioners in entering into the M.O.U dated 01.11.2007 is denied by petitioners who contend that it is the result of forgery. Second respondent contends that said M.O.U was executed by petitioners in his favour. In other words second respondent is supporting the first respondent so far as execution of the M.O.U dated 07.12.2006 is concerned. In that view of the matter, it is appropriate, just and necessary to avoid prejudice to the petitioners that second respondent adduced his evidence if any, before petitioners are called upon to O.P(C).No.2517 of 2011 -: 6 :- adduce their evidence. I find support for that view from the observations in paragraph 3 of the decision of the Andra Pradesh High Court referred above and the opinion rendered by W.W. Chitaley, in “AIR Manual 5th Edition, Volume V, Synopsis 13”. In that view of the matter learned Sub Judge ought to have directed the second respondent to adduce his evidence if any before petitioners adduced their evidence. Ext.P7, order is liable to be set aside. The original petition is allowed. Ext.P7, order is set aside and Ext.P4, application will stand allowed. There will be a direction to the second respondent/third defendant to adduce his evidence if any, before petitioners are called upon to adduce their evidence. Sd/- (THOMAS P. JOSEPH, JUDGE) Sbna/-