IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 WP(C).No. 22654 of 2010(O) -------------------------- OS.769/2008 of I ADDL.MUNSIFF COURT.,ERNAKULAM .................... PETITIONERS: --------------- 1. PETER JOHN ASWEZ, S/O.JOHN, AGED 42 , RESIDING AT PANIKARA PARAMBIL, KUNNUMMAL ROAD, VADUTHALA P.O.,KOCHI-23. 2. SHIRLY PETER ASWEZ, W/O.PETER JOHN ASWEZ, AGED 38 YEARS, RESIDING AT PANIKARA PARAMBIL, KUNNUMMAL ROAD, VADUTHALA P.O.,KOCHI-23. BY ADV. SRI.T.K.ABRAHAM RESPONDENTS: --------------- 1. BABU, S/O.THANKAPPAN, AGED 35 YEARS, RESIDIG AT MANIYATHUPARAMBIL, KUNNUMMAL ROAD, VADUTHALA P.O.,KOCHI-23. 2. THAKAPPAN, S/O.VASU, AGED 65 YEARS, RESIDING AT MANIYATHUPARAMBIL, KUNNUMMAL ROAD, VADUTHALA P.O.,KOCHI-23. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.22654 of 2010 --------------------------------------- Dated this 20th day of July, 2010 JUDGMENT This writ petition is filed in challenge of Ext.P8, order granting permission to respondents/plaintiffs to adduce further evidence after evidence of petitioner/defendant was over. Respondent sued petitioners in O.S.No.769 of 2008 in the court of learned Principal Munsiff-I, Ernakulam seeking a decree for prohibitory injunction against their forcible dispossession from plaint B schedule and preventing enjoyment of plaint B schedule from plaint A schedule by constructing compound wall in between. Case was included in the list on 18-06-2010 and evidence of respondents/plaintiffs was recorded and closed by 22-06-2010. Evidence of petitioners was closed on 12-07-2010. Respondents filed applications on 12-07-2010 to reopen the case for further evidence and to accept a additional witness list filed by them. Those applications were opposed by petitioners but, learned Principal Munsiff vide Ext.P8, order dated 14-07-2010 allowed those applications on payment of cost. That order is under challenge in this writ petition. Learned counsel for petitioners contend that the power sought to be invoked by W.P.C.No.22654 of 2010 : 2 : respondents is under Order 18 Rule 17 of the Code of Civil Procedure (for short, “the Code”) which cannot apply to the facts of this case. Learned counsel has placed reliance on the decision in Savithri Vs. Sreenivasan (1987(2) KLT 388) where it is stated that though court has vast powers under Order 18 Rule 17 of the Code, such power is discretionary and ought to be exercised with greatest care and only in exceptional circumstances very sparingly. Learned counsel contends that no such situation existed in this case to permit respondents to adduce further evidence. According to the learned counsel attempt of respondents is to fill up lacuna in their evidence and to cover up evidence given by petitioners. 2. Assuming that application is filed under Order 18 Rule 17 of the Code a wrong label given to the application cannot deter the court from exercising the power to permit additional evidence. Order 18 Rule 17 of the Code referred to in the application refers to the power of court 'to recall any witness who has been examined and subject him to such questions as the Court thinks fit'. It is with reference to that rule that the decision referred to supra stated that such power is discretionary and is to be used very sparingly in exceptional circumstances. That is W.P.C.No.22654 of 2010 : 3 : because it is for the parties to adduce evidence and the court is to recall a witness examined by the parties and examine him only in very exceptional circumstances and that power is to be exercised sparingly. That has nothing to do with the power of court to reopen the case and permit either of the parties to adduce evidence if circumstances warranted. 3. Then the next question is whether on facts court below is justified in allowing the applications. It is true that the evidence of both sides were over on 12-07-2010 and on that day respondents filed applications to re-open the case to adduce evidence. Trial court on the materials before it decided that respondents shall be allowed to adduce further evidence. Trial court has exercised that discretion in favour of respondents. I am not persuaded to think that further evidence if adduced by the respondents would result in filling up any lacuna in their evidence. After all, it is a civil dispute where the parties are governed and controlled by their pleadings and any evidence adduced could only be in support of their pleadings. Hence the question of filling up the lacuna as is said in a criminal case does not arise. I do not find reason to interfere with discretionary jurisdiction exercised by the learned Munsiff. I make it clear that W.P.C.No.22654 of 2010 : 4 : if consequent to the evidence being let in by the respondents any further evidence on the part of petitioners is required it is open to them to make a request in that line before the learned Munsiff. Writ petition is dismissed as above. (THOMAS P JOSEPH, JUDGE) Sbna/-