IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 17TH JUNE 2008 / 27TH JYAISHTA 1930 WP(C).No. 16471 of 2008(J) ----------------------------------- OS.212/2007 OF MUNSIFF COURT, CHALAKUDY .................... PETITIONER: ------------------ ANTHONY, AGED 79 YEARS, S/O.PAYYAPPILLY PAULOSE, MANGALASSERY DESOM, KORATTY KIZHAKKUMURI VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.B.PREMNATH (E) RESPONDENT: -------------------- BENNY, AGED 38 YEARS, S/O.MANDI ANTHONY, MANGALASSERY DESOM, KORATTY KIZHAKKUMURI VILLAGE, MUKUNDAPURAM TALUK BY ADV. SRI.M.B.PRAJITH - R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 16471/2008 APPENDIX PETITIONER'S EXHIBITS: EXT.P1:- TRUE COPY OF THE PLAINT DATED 23.05.2007 O.S.212/2007 OF THE HON'BLE MUNSIFF'S COURT, CHALAKUDI EXT.P2:- TRUE COPY OF THE PROOF AFFIDAVIT OF ONE OF THE WINESSES OF THE PETITIONER; SRI.DAVIS BEFORE THE HON'BLE MUNSIFF'S COURT, CHALAKUDI DATED 15.03.2008 EXT.P3:- TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A.NO.608/2008 IN O.S.212/2007 DATED 18.03.2008 OF THE HON'BLE MUNSIFF'S COURT, CHALAKUDI EXT.P4:- A TRUE COPY OF THE ORDER DATED 04.04.2008 IN I.A.608/2008 IN O.S.212/2007 OF THE HON'BLE MUNSIFF'S COURT, CHALAKUDI -TRUE COPY- P.A. TO JUDGE pac M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No.16471 OF 2008 ............................................ DATED THIS THE 17th DAY OF JUNE, 2008 JUDGMENT Petitioner is the plaintiff in O.S.212 of 2007. Respondent is the defendant. Petitioner was examined as PW1. Another witness was examined as PW2. On 15.3.2008, the case was posted for evidence of the third witness. On that day, the witness was not present. Learned Munsiff therefore closed the evidence of plaintiff and posted the case for defence evidence. Petitioner then filed I.A.608 of 2008, an application for permission to examine the other witness, who was not present on 15.3.2008. An objection was filed by the respondent. Learned Munsiff, under Ext.P4 order, dismissed the application. It is challenged in this petition filed under Article 227 of Constitution of India. 2. Learned counsel appearing for petitioner and respondent were heard. The argument of the learned counsel appearing for petitioner is that the witness, who was to be examined as PW3 could not be examined as he became ill after he came to the court and a proof affidavit was prepared though not filed and in such circumstances, learned Munsiff should have granted an opportunity to examine the witness. Learned counsel WP(C) 16471/2008 2 appearing for respondent submitted that the witness was not at all present in court and though it was alleged that witness had to return due to illness, no medical certificate was produced and in such circumstances, there is no illegality in Ext.P4 order. 3. On hearing the learned counsel on both sides, I do not find that learned Munsiff was justified in shutting out the evidence and denying an opportunity to the petitioner to examine the witness. Though learned counsel appearing for respondent argued that the witness sought to be examined was not the witness in the criminal case, that is a matter which is available for the petitioner to be argued in the suit or to cross examine the witness, when examined. But that is not a ground to deny an opportunity to the petitioner to examine the witness. In such circumstances, Ext.P4 order is quashed. I.A.608 of 2008 stands allowed. Learned Munsiff is directed to permit examination of the witness as sought for in I.A.608 of 2008. M.SASIDHARAN NAMBIAR, JUDGE lgk/-