IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 30TH JULY 2008 / 8TH SRAVANA 1930 WP(C).No. 29172 of 2003(W) -------------------------- PETITIONERS: ------------------- 1. JOSEPH, S/O. THOMAS, MURIKKAN KARAMAYIL, KATTAMPAKKU KARA, NJEEZHOOR VILLAGE. 2. C.T. GEORGE, S/O. THOMAS, DO. DO. 3. MATHEW, S/O. THOMAS, DO. DO. 4. SUNNY, S/O. THOMAS, MURIKKAN KARAMAYIL, PARAMBRAM KARA, MUTTUCHIRA VILLAGE. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON.V.B. RESPONDENTS: ------------- 1. THANKAMMA, W/O. JACOB, MURIKKAN VEETTIL, ELIVALI KARA, ERUMELI SOUTH VILLAGE. 2. M.J. JOSEPH, S/O. JACOB, DO. DO. 3. MATEHW JACOB, S/O. DO. DO. 4. MATHEW JACOB, S/O. JACOB, DO. DO. 5. CLARAMMA, W/O. THOMAS, MURIKKAN KARAMAYIL, PARAMBRAM KARA, KUTTUCHIRA VILLAGE. 6. ELSAMMA, W/O. JOSEPH, KIZHAKKE THOTTAM VEETTIL, POONJAR VILLAGE AND KARA, MEENACHIL TALUK. 7. JACOB, S/O. THOMAS, KARAMAYIL, PARAMBARAM KARA, MUTTUCHIRA VILLAGE. 8. THANKAMMA, W/O. SEBASTIAN, VETTUKALLIL VEETTIL, BHARANANGANAM VILLAGE & KARA, MEENACHIL TALUK. 9. KUNJAMMA, NEELAKKATTUMATTATHIL KURIYANADU VILLAGE, DO. TALUK. 10. VALSAMMA, DO. DO. 11. ROSAMMA, MURIKKAN KARAMAYIL, PARAMBARAM KARA, MUTTUCHIRA VILLAGE. 12. JOSEPH, S/O. GEORGE, DO. DO. 13. TOMY, S/O. GEORGE, DO. DO. 14. JACOB, S/O. DO. DO. 15. MATHEW, S/O. DO. DO. 16. GEORGE, S/O. DO. DO. 17. BEENA, D/O. DO. DO. 18. PHILIP, S/O. DO. DO. 19. KUNJUMOL, D/O. DO. DO. 20. ALEKUTTY, DO. DO. 21. SEJI D/O. JACOB, KARAMAYIL, PARAMBRAM KARA, MUTTUCHIRA VILLAGE 22. RAJI, D/O. DO. DO. 23. TEENA, D/O. DO. DO. (ADDL. R21 TO 23 IMPLEADED AS PER ORDER DT.30/7/2008 IN I.A.11264/04) BY ADV. SRI.SIBY MATHEW FOR R1-R4 SRI.P.JACOB VARGHESE (SR.) FOR R11-R19 SMT.V.A.GANGUJA FOR R11-R19 SRIFRANCIS JOSEPH KURISINKAL FOR R11-R19 SRI.VIVEK VARGHESE P.J. FOR R11-R19 SRI.SIBY MATHEW FOR R1- R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) 29172/2003 APPENDIX PETITIONERS’ EXHIBITS:- EXT.P1:- TRUE COPY OF THE ORDER DATED 6.7.2002 IN I.A.688/02 IN O.S.125/95, MUNSIFF’S COURT, VAIKOM. EXT.P2:- TRUE COPY OF THE AFFIDAVIT AND THE I.A.790/02 DT. 18.7.2002 EXT.P3:- TRUE COPY OF THE AFFIDAVIT AND I.A. 791/02 DT. 17.7.02 EXT.P4:- TRUE COPY OF THE ORDER DT. 23.8.2003 IN I.A. 790/02 IN O.S.125/95, MUNSIFF’S COURT, VAIKOM. EXT.P5:- TRUE COPY OF THE ORDER IN I.A. 791/02 IN O.S. 125/95, MUNSIFF’S COURT, VAIKOM. RESPONDENTS’ EXHIBITS:- EXT.R1(a):- TRUE COPY OF THE JUDGMENT IN O.S. NO.568/1997 IN THE COURT OF THE MUNSIFF, KANJIRAPPALLY, DT. 11.7.2002 OKB/- //TRUE COPY// P.A. TO JUDGE ORDER ON I.A.11264/2004 IN WP(C) 29172/2003 ALLOWED. 30.7.2008. SD/- M. SASIDHARAN NAMBIAR, JUDGE OKB/- /TRUE COPY/ P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO.29172 OF 2003 ------------------------------------------ Dated this the 30th day of July, 2008 JUDGMENT Petitioners are the defendants and respondents the plaintiffs in O.S. 125 of 1995 on the file of Munsiff Court, Vaikom. This petition is filed under Article 227 of Constitution of India to quash Ext.P4 and P5 orders. Ext.P4 order is passed in I.A. 790 of 2002, an application filed under Rule 1 of Order XLVII of Code of Civil Procedure to review the order passed by the Court closing the evidence and posting the case for arguments. Ext.P5 order is passed in I.A. 791 of 2002, an application filed by petitioners to summon the witnesses shown in the application. Petitioners have earlier filed I.A. 688 of 2002 to mark the copies of statements filed by defendants 2, 3 and 10 before Taluk Land Board. Under Ext.P1 order dated 6.7.2002 the petition was dismissed holding that without examining the witnesses documents cannot be marked. Ext.P1 order shows that learned Munsiff also observed that petitioners can mark the documents by recourse to proper procedure as provided under law. After examination of the witnesses on the side of WP(C)29172/03 2 petitioners/defendants and respondents/plaintiffs, learned Sub Judge closed the evidence on 20.7.2002. It is to re-open the case for evidence by reviewing the order I.A.790 of 2002 was filed contending that the witnesses sought to be examined as per I.A. 791/02 are necessary to prove the case of the petitioners and therefore evidence is to be re-opened. I.A. 791 of 2002 was filed to examine witnesses shown in the witness list. Under Ext.P5 order, learned Munsiff dismissed the application and refused to permit petitioners to examine the witnesses shown therein. Witnesses 1 to 4 shown in the schedule are the defendants. Learned Munsiff relied on the decision of this Court in Jortin Antony v. S.P.D. Marthanda Varma (2000 (2) KLT 680) and rejected the prayer. 2. The argument of the learned counsel appearing for petitioners is that the prohibition to summon the opposite party as a witness is only as against the parties and there is no prohibition in Court summoning and examining any of the parties to the suit. On the facts I do not find any illegality or any other reason to interfere with the finding of the learned Munsiff that plaintiffs cannot be summoned to enable defendants to examine them as a witness on their behalf. It is upto the WP(C)29172/03 3 plaintiffs to decide whether they are to be examined as witnesses or not. They cannot be compelled to give their evidence by the defendants. 3. Learned Munsiff rejected the prayer to examine the other witnesses, who are the advocates, stating that the reason for their examination was not mentioned. It cannot be said that that is not a valid ground. Hence I find no reason to interfere with that portion of the order. The prayer for summoning the Revenue Divisional Officer was rejected on the ground that RDO is sought to be summoned to produce records from the Taluk Land Board and if the records from Taluk Land Board are to be called for, provisions under Rule 120 of Civil Rules of Practice are to be satisfied. Learned Munsiff is correct in that aspect also. If a document in the custody of a public officer is to be summoned, petition is to be filed under Rule 120 of Civil Rules of Practice. If original document is to be produced, it is necessary to show the reason in the petition itself as otherwise party can produce certified copy of the document. Otherwise, it should be satisfied that certified copy was applied for and was not granted. In such circumstances, I do not find any reason to interfere with Ext.P5 order. Review of the order was sought WP(C)29172/03 4 only for the purpose of examining the witnesses sought for in the other application. When that petition was dismissed, I do not find any reason to interfere Ext.P4 order also. There is no illegality or irregularity in Ext.P4 and P5 orders warranting interference in exercise of the extraordinary powers of this Court under Article 227 of Constitution of India. 4. Learned counsel appearing for petitioners then submitted that in the light of importance of the statements filed before Taluk Land Board by the plaintiffs where there is an admission with regard to the exclusive right of Thomas, the right of petitioners to adduce evidence may not be shut out. If it is taken that there is any such admission by the plaintiffs or their predecessors, petitioners could have produced certified copies of the documents. If such certified copy is produced, learned Munsiff may consider the same, if proper application is filed and reasons are also shown. Writ petition is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-