IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932 OP(C).No. 706 of 2010() ----------------------- IA NO.2219/2010 IN OS.517/2002 of MUNSIFF COURT,KAYAMKULAM .................... PETITIONER (S): -------------------- 1. M.C.JACOB, MODIYILVEETTIL FROM MANAKKATTU PADEETTATHIL, KRISHNAPURAM MURI, KRISHNAPURAM VILLAGE. 2. M.C.MATHEW, CHALAVEETTIL FROM MANAKKATTU PADEETTATHIL, KRISHNAPURAM MURI, KRISHNAPURAM VILLAGE. BY ADV. SRI.K.HARILAL RESPONDENT(S): --------------- 1. THE COMMISSIONER AND SECRETARY, REVENUE DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM, PIN 695 001. 2. THE INSPECTOR GENERAL OF REGISTRATION, THIRUVANANTHAPURAM, PIN 695 001. 3. THE STATE OF KERALA, REP. BY THE DISTRICT COLLECTOR, ALAPPUZHA P.O., PIN 688 001. 4. THE ASSISTANT DIRECTOR, RESURVEY AND LAND RECORDS, CHENGANNOOR P.O., PIN 689 121. 5. THE SPECIAL TAHSILDAR, K.I.P., KOTTIYAM P.O., PIN 691 571. 6. THE SUB REGISTRAR, SUB REGISTRAR'S OFFICE, KAYAMKULAM P.O., PIN 690 502. 7. THE SECRETARY, SERVICE CO-OPERATIVE BANK LTD NO.781, PULLIKKANANAKKU P.O., PIN 690537. 8. RAJAMMA, KOCHUKEEPPALLIL, KRISHNAPURAM P.O., PIN 690 533. 9. SANTHAMMA,KOCHUKEEPPALLIL, KRISHNAPURAM P.O., ALAPPUZHA, PIN 690 533. OP(C) NO.706/2010 2 10. M.K.GOPALAPILLAI, ROHINI, KRISHNAPURAM P.O., ALAPPUZHA, PIN 690 533. 11. SUNILKUMAR, KOCHUKEEPPALLIL, KRISHNAPURAM P.O., PIN 690 533. 12. AJITHA, D/O.SANTHAMMA, KOCHUKEEPPALLIL, KRISHNAPURAM , VIA. KAYAMKULAM, ALAPPUZHA, PIN 690 533. 13. MINI, W/O.REGHUNATHAN, ATHIRABHAVAN, PULLIKKANAKKU P.O., ALAPPUZHA DISTRICT, PIN 690 537. 14. REGHUNATHAN, ATHIRABHAVAN, PULLIKKANAKKU P.O., ALAPPUZHA DISTRICT, PIN 690533. 15. ABDUL SALAM, S/O.KOYAKUTTY, BEENAMANZIL, MEMANA, OCHIRA P.O., KOLLAM DISTRICT, PIN 690526. 16. SAJINA, W/O.ABDUL SALAM, BEENAMANZIL, MEMANA, OCHIRA P.O., KOLLAM DISTRICT, PIN 690526. 17. NARAYANAKUTTY NAIR, S/O.BALAKRISHNA PILLAI, NARAYANAVIHAR, KRISHNAPURAM P.O., ALAPPUZHA DISTRICT, PI 690533. 18. SAROJINI, PULIKKAKATHIL PUTHUPPARAMBIL, PRAMADAM VILLAGE, MALLASSERY P.O., ALAPPUZHA DISTRICT, PIN 689 646. 19. GEETHA, W/O.SUNIL KUMAR, KOCHUKEEPPALLIL, KAYAMKULAM P.O., KRISHNAPURAM VILLAGE, ALAPPUZHA DISTRICT, PIN 690 533. 20. VISWANATHA PILLAI, S/O.NARAYANAN NAIR, VANDANAM, BHARANICKAVU NORTH MURI, KATHANAM VILLAGE, BHARANICKAVU P.O., ALAPPUZHA DISTRICT, PIN 691 330. R1 TO R6 BY GOVT. PLEADER SHRI B.JAYASURYA THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.706 of 2010 -------------------------------------- Dated this the 15th day of November, 2010. JUDGMENT Plaintiffs in O.S.No.517 of 2002 of the court of learned Munsiff, Kayamkulam challenge Exts.P4 and P6, orders. They filed the suit for a declaration of title and possession and cancellation of a sale deed executed in favour of respondent No.10 and subsequent sale deeds on the allegation that respondent No.10 got sale deed No.3735 of 1984 executed fraudulently with the connivance of respondent No.6, the Sub Registrar. Petitioners wanted respondent Nos.6 and 10/defendant Nos.6 and 10 to be examined as witnesses on their side and the learned Munsiff passed Ext.P3, a single word order - “allowed”. The successor-in-office, when respondent No.6 was summoned as witness and was before court found that he is one of the defendants, felt that it is not a proper procedure to permit petitioners/plaintiffs to examine defendants as witnesses on their side and reviewed Ext.P3, order vide Ext.P4, order. Petitioners filed Ext.P5, application to review Ext.P4, order which resulted in Ext.P6, order. The application for review was dismissed. Hence this petition. Learned counsel for petitioners contend that though it could be said that a party has no right to examine opposite party as his witness there is no prohibition in examining the opposite party if circumstances warranted that. Learned counsel contended that learned Munsiff was not correct in reviewing Ext.P3, order vide Ext.P4 order. OP(C) No.706/2010 2 2. The power for suo motu review is confined to procedural orders. Here, the application to examine respondent Nos.6 and 10 was allowed by the learned Munsiff, it is seen from Ext.P3, order by a non-speaking order and it is not clear whether learned Munsiff had applied mind to the relevant decisions on the point and considered question whether respondent Nos.6 and 10 could be examined as witnesses on the side of petitioners. Learned Munsiff has passed an order mechanically. The successor-in-office, alive to the issue thought that examination was impermissible and observed that by a mistake respondent No.6 was summoned as witness. It is accordingly that Ext.P3, order was reviewed. Though there is a challenge to Ext.P4, order in this proceeding now I am concerned with the question whether Ext.P6, order dismissing Ext.P5, application is correct or not. 3. There are allegations in the plaint against respondent Nos.6 and 10 in that the latter is said to have obtained sale deed No.3735 of 1984 executed fraudulently with the connivance of respondent No.6, the Sub Registrar. In such a situation it was not proper for learned Munsiff to allow respondent Nos.6 and 10 to be examined as witnesses for petitioners. This Court in Narayana Pillai v. Kallyani Amma (1963 KLT 537) stated that practice of a party causing his opponent to be summoned as a witness was disproved in rather strong terms by their lordship of the Privy Council and as a matter of right a party could OP(C) No.706/2010 3 not examine the opposite party as a witness. Same view was taken in Syed Mohammed v. Aziz (1990 (2) KLT 952). Later a Division Bench of this Court in Jortin Antony v. S.P.D.Marthanda Varma (2000 (2) KLT 680) considered the question and held that a party to the suit does not have a right to summon opposite party to give evidence. However, referring to Rule 14 of Order XVI of the Code of Civil Procedure (for short, “the Code”) it was held that it is really left to the court, possibly after evidence of all the witnesses made available is completed, to consider whether it is necessary to examine one of the parties and compel that party to give evidence. Without referring to any of the above authoritative pronouncements learned Munsiff has passed Ext.P3, order saying “allowed”. That order cannot stand scrutiny of law. In that situation I am not inclined to interfere with Ext.P4, order reviewing Ext.P3, order. 4. So far as Ext.P6, order refusing to review Ext.P4, order is concerned, learned Munsiff has referred to the decisions on the point and said that petitioners cannot compel their opponents to be examined as witnesses on their side. Having regard to the decisions referred to above I do not find reason to interfere. But I make it clear that in view of the decision in Jortin Antony v. S.P.D.Marthanda Varma the impugned order will not prevent learned Munsiff invoking Rule 14 of Order XVI of the Code if circumstances warranted that at the appropriate stage. It is made clear that if petitioners wanted to prove OP(C) No.706/2010 4 any document from the office of Sub Registrar concerned, it is open to them to summon appropriate person from that office and prove the document as provided under law. With the above observations, this petition is dismissed. THOMAS P.JOSEPH, Judge. cks