IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 18TH JANUARY 2008 / 28TH POUSHA 1929 WP(C).No. 27934 of 2007(A) ------------------------------------- RCP.26/1990 of PRL.M.C., KOLLAM .................... PETITIONER: ------------------- PRASAD, S/O.RAMACHANDRAN, AGED 37 YEARS, RESIDING AT KIZHAKEVEETTIL, THEVALLY WARD, KOLLAM WEST VILLAGE. BY ADV. SRI.R.SATISH KUMAR RESPONDENTS: ---------------------- 1. KRISHNAN VAMADEVAN, AGED 70 YEARS, KIZHAKEVEETTIL, THEKKEPURAYIDOM, TRA NO.45, THEVALLY KOLLAM. 2. PARVATHY PONNAMMA, W/O.KRISHNAN VAMADEVAN, KIZHAKKEVEETTIL, THEKKEPURAYIDOM, TRA NO.45, THEVALLY KOLLAM. BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.27934/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE IA. NO.2578/2004 IN RCOP 26/1990 FILED BY the RESPONDENT. EXT.P2:- COPY OF THE JUDGMENT DT. 11/3/2002 IN CRP. NO.1354/95 OF THIS HONOURABLE COURT. EXT.P3:- COPY OF THE JUDGMENT DT. 31.3.04 IN WPC. NO.2348/04 THIS HONOURABLE COURT. EXT.P4:- COPY OF THE REPRESENTATION SUBMITTED BY VIPINDAS TO CIRCLE INSPECTOR OF POLICE . EXT.P5:- COPY OF THE WITNESS SCHEDULE FILED BY THE PETITIONER. EXT.P6:- COPY OF THE IA. NO.1538/07 FILED BY THE PETITIONER IN THE ABOVE CRP. EXT.P7:- COPY OF THE IA. NO.1539/07 FILED BY VIPINDAS. EXT.P8:- COPY OF THE COMMON ORDER IN IA. NOS. 1538/07 AND 1539/07 DT. 7.7.07 IN RCOP 26/1990 OF THE RENT CONTROL COURT, KOLLAM. /TRUE COPY/ P.AS. TO JUDGE tss K.Balakrishnan Nair & P.N.Ravindran, JJ. ======================== W.P(C).No.27934 of 2007 ======================== Dated this the 18th day of January, 2008. JUDGMENT Balakrishnan Nair,J. The petitioner who is the 18th counter petitioner in I.A.No.2578 of 2004 in R.C.P.No.26 of 1990 has filed this writ petition feeling aggrieved by the order passed by the Rent Controller on I.A.No.1538 of 2007. I.A.No.1538 of 2007 was filed by the petitioner herein to examine the fifth respondent in I.A. No.2578 of 2004 as a witness. The said respondent was already set ex parte as he failed to appear before the court on the stipulated date on receiving notice. The Rent Controller took the view that since the fifth respondent was set ex parte, he cannot be permitted to participate in the proceedings in another capacity. So, I.A.No.1538 of 2007 filed by the petitioner herein was dismissed. The fifth respondent himself came forward and filed I.A.No.1539 of 2007 to get himself examined as a witness in the proceedings, which was also dismissed. Both those WP(C) 27934/07 -: 2 :- interlocutory applications were dismissed by Ext.P8 common order dated 7.7.2007. This writ petition is filed challenging Ext.P8. 2. We heard the learned counsel appearing for the contesting respondents also. We are of the view that I.A.No.1538 of 2007 has to be allowed. The 18th respondent should be permitted to examine any person of his choice as a witness. The fact that the fifth respondent was set ex parte cannot be a bar to examine him as a witness. Further by examining him he is not allowed to participate in the proceedings. A witness is not treated as a party to the proceedings. In view of the above position, I.A.No.1538 of 2007 is allowed and the writ petition is disposed of. It is unnecessary to pass any order on the I.A. No.1539 of 2007 filed by the fifth respondent. K.Balakrishnan Nair, Judge. P.N.Ravindran, Judge. ess 21/1