IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 OP (FC).No. 3599 of 2011(R) -------------------------------------- OP.1220/2004 of FAMILY COURT,THRISSUR .................... PETITIONER (S): ------------------------ SHAJI, AGED 61 YEARS, S/O.LATE M.K.KUMARAN, RESIDING AT 11TH CROSS, UDAYA NAGAR, THRISSUR, NOW WORKING AS MEMBER JUDICIAL RAILWAY CLAIMS TRIBUNAL, RANCHI BENCH, JHARKHAND STATE. BY ADV. SRI.P.R.VENKATESH SRI.P.R.RAJA SRI.P.C.CHACKO(PARATHANAM) RESPONDENT(S): ------------------------ 1. GEETHA.M.K, W/O.SHAJI, RESIDING AT 11TH CROSS, UDAYANAGAR, NEAR SANKARANKULANGARA TEMPLE, THRISSUR-680 003. 2. ADVOCATE ROBSON PAUL, KOLENCHERRY HOUSE, KIZHAKKAPURAM P.O., ARANATTUKARA, THRISSUR TALUK-680 003. THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 11/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OPFC 3599/2011: PETITIONER'S EXHIBITS: EXT.P1. TRUE COPY OF THE HM (OP) NO.1220/2004 ON THE FILES OF THE FAMILY COURT, THRISSUR. EXT.P2.TRUE COPY OF IA NO.5493/2011 IN OP NO.1220/2004 FILED BEFORE THE FAMILY COURT, THRISSUR DATED 19.8.2011. EXT.P3.TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN IA NO.5493/2011 BEFORE THE FAMILY COURT, THRISSUR DATED 20.8.2011. EXT.P4.TRUE COPY OF THE ORDER DATED 19.10.2011 IN IA NO.5493/2011 IN OP NO.1220/2004 OF THE FAMILY COURT, THRISSUR. K.M.JOSEPH & A. M. SHAFFIQUE, JJ. ------------------------------------------------------- O.P.(FC) No.3599 of 2011-R ----------------------------------------- Dated, this the 11th day of November, 2011 J U D G M E N T K.M.Joseph, J. Petitioner calls in question Ext.P4. Ext.P4 is an order passed by the Family Court, Thrissur in I.A.5493/2011 in O.P.1220/2004. O.P.1220/2004 is a petition seeking dissolution of marriage between the petitioner and the Ist respondent herein. Apparently, the 2nd respondent Advocate had been engaged by the Ist respondent. Thereafter, he gave up his engagement. Then the original petitioner wanted to examine the 2nd respondent. It is thereupon the 2nd respondent filed Ext.P2 petition before the Family Court, Thrissur praying that he may be examined before the court. The original petitioner filed objection as Ext.P3, and, it is after considering the same Ext.P4 order is passed. 2. We heard the learned counsel for the petitioner. The learned counsel for the petitioner would submit that, the only prayer in Ext.P2 was that the 2nd respondent may be examined in the court. That prayer was granted. But, the Family Court has gone further and directed that the 2nd respondent shall be examined by the respective counsel. This, the learned counsel for the petitioner submits is impermissible. As such prayer was not sought for, the court should not have granted such a prayer it is OPFC 3599/2011 -2- contended. Apparently, reliance is sought to be placed on Order 3 Rule 1 of Code of Civil Procedure which reads as under: “1. Appearances, etc., may be in person, by recognized agent or by pleader .--Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying or acting, as the case may be on his behalf: Provided that any such appearance shall, if the Court so directs, be made by the party in person.” 3. This is a petition under Article 227. The following is part of the reasoning of the Court in the order ultimately passed. “5. The petitioner has raised an argument that he can examine the witness as Amicus Curiae. Amicus Curiae is a member of the bar or other stand-by who informs the court when it is doubtful or mistaken of any fact or decided case. It has been observed by the Superior Courts that the court may hear any person who is not a party to the case where the nature and importance of the question before the court would require the assistance of such a person. So the argument of the petitioner that he can directly examine the witness as an Amicus Curiae has only to be rejected. Since a counsel is appointed by the party to assist the court it is the privilege of the counsel to OPFC 3599/2011 -3- examine the witness. Order III Rule 1 CPC read as follows: “1. Appearances, etc., may be in person, by recognized agent or by pleader .--Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying or acting, as the case may be on his behalf: Provided that any such appearance shall, if the Court so directs, be made by the party in person.” 6. So it is clear that when a counsel is duly appointed to act by the party the examination of the witness has to be conducted by the counsel and not by the party in person. So only if the court directs it can be made by the party in person. Considering all these facts I find that the contention of the petitioner is devoid of merit and it has to be rejected. In the result, petition is disposed of accordingly. The witness will be examined in court by the respective counsel appointed by the parties to the petition. The other witness will also be examined by the respective counsel before the Commissioner. No order as to costs.” 4. Therefore, this is a matter which was projected before the Family Court by the original petitioner. It may be true that the 2nd respondent sought the prayer. But, when this aspect OPFC 3599/2011 -4- was mooted before the Family Court by the original petitioner, it is imperative on the Family Court to decide it and that is what is happened in this case. The question would be whether the decision taken by the Family Court is legal or not. We are in complete agreement with what the Family Court has done. Provisions contained in Order 3 Rule 1 CPC enables a party to engage a lawyer. Having engaged a lawyer it may not be open to the party to insist that he should conduct the examination of a particular witness while he retains the service of the lawyer. We see that no case is made out by the petitioner to exercise our discretionary jurisdiction under Article 227. The Original Petition fails, and it is dismissed. (K.M.JOSEPH) JUDGE. (A. M. SHAFFIQUE) JUDGE. MS