IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 OP(C).No. 3541 of 2011(O) ------------------------- OS.43/2008 of MUNSIFF COURT.,PARAPPANANGADI .................... PETITIONERS: --------------------------- 1. ULLATTUPARAMBIL ABU HAJI, AGED 55 YEARS, S/O.AVARAN HAJI, KANNAMANGALAM AMSOM DESOM, TIRURANGADI TALUK, P.O.KANNAMANGALAM. 2. KADHEEJA, AGED 45 YEARS, W/O.ULLATTUPARAMBIL ABU HAJI, KANNAMANGALAM AMSOM DESOM, TIRURANGADI TALUK, P.O.KANNAMANGALAM. BY ADV. SRI.HARISH R. MENON SRI.K.T.SHYAMKUMAR SRI.T.KRISHNAN UNNI,SENIOR ADVOCATE RESPONDENT: --------------- ETTUVEETTIL KUNHIMOHAMMED, AGED 45 YEARS S/O.MOIDEENKUTTY HAJI, RESIDING AT ETTUVEETTIL HOUSE, KANNAMANGALAM AMSOM DESOM, TIRURANGADI TALUK, P.O.KANNAMANGALAM, REP.BY POWER OF ATTORNEY ABDUL SALAM E.V., S/O.MOIDEENKUTTY HAJI,RESIDING AT ETTUVEETTHIL HOUSE,KANNAMANGALAM AMSOM DESOM, TIRURANGADI. TALUK, P.O KANNAMANGALAM-676 305 ADV. SRI.SANTHEEP ANKARATH.ADVOCATE SRI.SANTHEEP ANKARATH FOR R-1 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 3541 of 2011 2 APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1 : TRUE COPY OF THE PLAINT IN OS.43/2008 ON THE FILE OF THE MUNSIFFS COURT, PARAPPANANGADI. EXHIBIT P2 : TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONS IN OS.43/2008. EXHIBIT P3 : A TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE PLAINTIFF. EXHIBIT P4 : TRUE COPY OF THE AFFIDAVIT FILED ALONG WITH IA.2081/2011. EXHIBIT P5 : TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONERS IN IA.2081/2011. EXHIBIT P6 : A TRUE COPY OF THE ORDER IN IA.2081/2011 DATED 24/10/2011. RESPONDENTS' EXHIBITS: NIL /True Copy/ P.A to Judge THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3541 of 2011 --------------------------------------- Dated this 08th day of November, 2011 JUDGMENT Ext.P6, order dated 24.10.2011 on I.A.No.2081 of 2011 in O.S.No.43 of 2008 of the Court of learned Munsiff, Parappanangadi reopening the case for further evidence on the request of the respondent and allowing him to file fresh proof affidavit after his cross examination is over, is under challenge. 2. Respondent, represented by his power of attorney holder filed the suit for a decree for prohibitory and mandatory injunction. The dispute concerns right of way claimed by the respondent. The power of attorney holder of the respondent produced proof affidavit based on which he was cross examined. Later, first petitioner gave evidence as DW1 and after closure of the evidence of petitioners/defendants, the case was posted for hearing. During argument, counsel for petitioners pointed out that though proof affidavit of PW1, power of attorney holder of respondent/plaintiff is purported to be signed by PW1, the first page of the proof affidavit mentioned that it is sworn by the respondent personally. It was contended that there was no proper proof affidavit and hence evidence of the power of O.P(C).No.3541 of 2011 -: 2 :- attorney holder of respondent as PW1 cannot be looked into. At that stage, respondent filed I.A.No.2081 of 2011 to reopen the case for further evidence and produced fresh proof affidavit of power of attorney holder (who had by then been examined as PW1). That application was resisted by the petitioners. On that application, learned Munsiff passed Ext.P6, order. Learned Munsiff allowed the case to be reopened observing that evidence given by the power of attorney holder of respondent as PW1 is a nullity. 3. It is contended by learned counsel for petitioners that learned Munsiff was not correct in reopening the case for further evidence and allowing the respondent to produce a fresh proof affidavit of the power of attorney holder (PW1) who had already been examined. According to the learned counsel, proof affidavit cannot follow cross examination and re-examination, if any. Therefore evidence of PW1 has to be eschewed in deciding the case. 4. Learned counsel for respondent has contended that the whole thing happened on account of an inadvertent mistake as submitted in the court below. The affidavit was prepared at a time when the respondent/plaintiff was available at station but, at O.P(C).No.3541 of 2011 -: 3 :- that stage the trial could not commence. Thereafter, when the trial commenced respondent/plaintiff was not available at station. His power of attorney holder was to give evidence. At that time, proof affidavit was sworn before the advocate concerned by the power of attorney holder after replacing the last page of the proof affidavit which was earlier prepared. What was affirmed before the advocate concerned and attested by him was the affidavit of power of attorney holder (PW1) but, by inadvertence the first page which stated that the affidavit was being sworn by the respondent was not either corrected or replaced. Learned counsel submits that respondent is prepared to prefer an application for correction of the affidavit under Sec.153 of the Code of Civil Procedure (for short, "the Code”) to the effect that the affidavit was sworn by the power of attorney holder (PW1) himself. According to the learned counsel, such a correction is possible under Sec.153 of the Code having regard to the fact that the last page of the proof affidavit earlier prepared was replaced by a fresh page which stated that the affidavit was being sworn by and signed by the power of attorney holder himself. According to the learned counsel that would cure the defect that has occurred by an inadvertent mistake. O.P(C).No.3541 of 2011 -: 4 :- 5. It is submitted by learned counsel on behalf of petitioners that if the advocate who has attested the affidavit and his clerk, as also power of attorney holder of the respondent file affidavits in support of the application for amendment stating the circumstances under which the first page of the proof affidavit happened to remain as such, petitioners have no serious objection to such application for amendment being allowed. 6. It is seen from Ext.P6, order that learned Munsiff has proceeded as if evidence already tendered by the power of attorney holder is a nullity. In view of the stand counsel on both sides have taken before me as to the respondent filing application for amendment in the circumstances stated above, I am inclined to think that respondent must given an opportunity to seek correction of the affidavit as above stated while leaving it open to the learned Munsiff to decide whether the application for amendment has to be accepted or not, having regard to the circumstances stated above and considering the fact that petitioners also are not seriously objecting to such a course to save the situation. Resultantly this original petition is allowed. Ext.P6, order is set aside and the matter is remitted to the learned Munsiff for O.P(C).No.3541 of 2011 -: 5 :- fresh decision. It is open to the respondent represented by the power of attorney holder to file appropriate application for amendment as above stated and if any such application for amendment is preferred learned Munsiff shall decide the matter as provided under law in the light of the observations I have made above. (THOMAS P. JOSEPH, JUDGE) Sbna/-