IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 WP(C).No. 28547 of 2009(O) --------------------------------------- PETITIONERS: --------------------- 1. K.M.GEETHA VIJAY, "PARPIDAM",9/5 TENNIS CLUB ENCLAVE, KOWDIAR,THIRUVANANTHAPURAM-41. 2. K.S.SHYLA MADHU, "KOODU",T.C.15/134(II),ALTHARA LANE, THIRUVANANTHAPURAM-10. 3. SUJATHA JAYAPRAKASH, "MAYASREE",T.C.4/2297-2,KARAVANKONEM, THIRUVANANTHAPURAM. BY ADV. MR.J.S.AJITHKUMAR. RESPONDENTS: ------------------------ 1. K.GOPAKUMARAN, "HARISREE",T.C.4/223,KURAVANKONAM, KOWDIAR P.O.,THIRUVANANTHAPURAM. 2. SUDHA, "HARISREE",T.C.4/223,KURAVANKONAM, KOWDIAR P.O.,THIRUVANANTHAPURAM-3. 3. THE CORPORATION OF THIRUVANANTHAPURAM, CORPORATION BUILDING,PALAYAM, TRIVANDRUM,REPRESENTED BY ITS SECRETARY. 4. MOHANKUMAR, RAMAKRISHNA HOME,PULIMOODU P.O., THIRUVANANTHAPURAM. W.P.(C). NO.28547/2009-O: 5. VIJAYAN, RAMAKRISHNA HOME,PULIMOODU P.O., THIRUVANANTHAPURAM. 6. KALA, RAMAKRISHNA HOME,PULIMOODU P.O., THIRUVANANTHAPURAM. 7. AMARNATH, RAMAKRISHNA HOME,PULIMOODU P.O., THIRUVANANTHAPURAM. R1 & R2 BY ADV. MR.G.S.REGHUNATH. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.28547 of 2009 - O --------------------------------- Dated this the 15th day of October, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: “i) To issue a writ of certiorari, order or direction to the 2nd Additional Sub Court, Thiruvananthapuram to call for the records leading to Exhibit P3 and quash the same. ii) To issue a writ of mandamus, order or direction to the 2nd Additional Sub Court, Thiruvananthapuram to give opportunity to the petitioner to adduce evidence pursuant to I.A.No.4447/2009 in O.S.No.422/1999. 2. Petitioners are the plaintiffs in O.S.No.422 of 1999 on the file of the 2nd Additional Sub Court, Thiruvananthapuram. Suit is one for recovery of possession on the basis of title and for other reliefs, and the respondents are the defendants. That application moved by the petitioner/plaintiff seeking appointment of a commission to examine two witnesses, one of whom residing at Thirunelveli and the other at Chennai, was objected to by the defendants. Learned Sub Judge after hearing both sides sustaining the objections raised by the defendants dismissed that W.P.(C).No.28547 of 2009 - O 2 application. Propriety and correctness of that order , copy of which is produced as Ext.P3, is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. Notice being given respondents have entered appearance through counsel. I heard the counsel on both sides. 4. At the time of hearing, it is brought to my notice, the suit filed by the plaintiff is jointly tried with six other suits. Three of such suits, according to the learned counsel for the petitioners, are filed by them, and the rest against them by some others. It is the further submission of the counsel that opposite parties in the suit instituted by them and also in which they appear as defendants are defended by a common counsel, which is disputed by the counsel for the respondents as not correct. A joint trial of all suits, it is conceded by both sides, is ordered by the court and pursuant to which trial has already commenced with evidence already partly recorded. Now, after examination of two witnesses on commission, it is submitted, the case has been again included in the special list for trial in December, 2009. W.P.(C).No.28547 of 2009 - O 3 Learned counsel for the respondent inviting my attention to Order XXVI Rule 4 and also Order XVI Rule 19 of the Code of Civil procedure vehemently contended that on the facts and circumstances involved and the disputed questions arising for consideration examination of two witnesses by commission as sought for by the petitioners/plaintiffs is not justifiable and, further, as there is no impropriety or illegality in Ext.P3, it does not warrant any interference. However, the learned counsel for the petitioners/plaintiffs contend that the court below has not applied its mind why the application for commission cannot be granted and the reasons set out in Ext.P3 order, especially in view of the amendment made to the CPC by which examination of witness by commission has become the order of the day, warrants interference. 5. After going through Ext.P3 order, I find the request made by the petitioners to examine the witnesses by way of commission was declined for the sole reason that it is easy for the petitioner to produce the witnesses before the court. The reason so set out on its face value cannot be accepted as a valid W.P.(C).No.28547 of 2009 - O 4 reason for declining the request made by the petitioners. Having regard to the totality of the facts and circumstances involved in the case and the disputed questions arising for adjudication the practicability of examining the witnesses, admittedly, residing at far off places, on commission, has to be examined and scrutinized by the court with reference to the objections canvassed, and appropriate order after such scrutiny in accordance with law has to be passed. Since several suits are jointly tried and without sufficient materials placed as to in what way they are interconnected and to what extent the evidence sought to be tendered through the witnesses who are sought be be examined on commission is likely to affect one or more such suits, this Court cannot issue any guideline in the disposal of the commission application other than what is indicated above. I make it clear that the observations of this Court shall not be construed or interpreted as in favour of or against the entertainability of the commission application, but only that since the impugned order does not reflect cogent and convincing reason for disallowing the application it cannot be sustained. W.P.(C).No.28547 of 2009 - O 5 Setting aside Ext.P3 order I direct the court below to examine the matter afresh and pass appropriate orders. Both parties can canvass whatever circumstances in their favour on the merits of the commission application arising for consideration before the court below. Subject to the above observation, writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-