IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 8TH JULY 2010 / 17TH ASHADHA 1932 RP.No. 560 of 2010(O) --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.4386/2010 .................... REVIEW PETITIONER(S): ------------------------------------- 1. BENNYCHAN, S/O.VARKEY, VADAKKECHELOTTU, ZION JUNCTION, ETTUMANOOR, KOTTAYAM. 2. P.M.DEVASIYA, S/O.MATHAI, PARASSERI HOUSE, PUTHUPPADU, OONGAPUZHA, KOZHIKODE. BY ADV. SRI.M.J.THOMAS RESPONDENT(S): 1. M.K.MICHAEL, MALIAKKEL HOUSE, NEENDOOR, KOTTAYAM. 2. THE FEDERAL BANK LTD., REPRESENTED BY ITS BRANCH MANAGER, ETTUMANOOR, KOTTAYAM. 3. THE COTTANAD PLANTATIONS LTD., REPRESENTED BY ITS MANAGING PARTNER, M.P.CHERIAN, NAGARAM AMSOM,DESOM, KOZHIKODE. GOVERNMENT PLEADER THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 08/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.P.No.560 of 2010 In W.P.(c).No.4386 of 2010 = = = = = = = = = = = = = = Dated: 08.07.2010 ORDER The review petitioners are PWs.2 and 3 in O.S.No.321/1999 on the file of the Sub Court, Kozhikode. PW2, the 1st petitioner is a resident of Kottayam and PW3, the 2nd petitioner is a resident of Thamarassey. Both of them had given proof affidavits and were present before the Sub Court, Kozhikode on 17.12.2009 for giving evidence. The case was adjourned to next day for examining them on commission at the insistence of the 1st defendant. The matter was again adjourned to 4.1.2010 and then to 15.1.2010 on which days also the petitioners were present before the court. Subsequently, on 19.1.2010, the plaintiff's evidence was closed. Thereafter the 1st defendant applied for re-opening the evidence for the examination of PWs.2 and 3 and to examine them on commission. The said application was R.P. No.560 of 2010 2 allowed as per Ext.P5 order produced in the writ petition, on payment of cost of Rs.6,000/- to the 1st petitioner herein and Rs.1000/- to the 2nd petitioner herein. Ext.P5 order was quashed by this Court in W.P(c).No.4386/2010 in the light of the observations in W.P.(c).No.810/2010 to the effect that the parties could not be taxed with the expenses for examination of witnesses (PWs.2 and 3) on commission. This Court as per judgment dated 10.2.2010 set aside Ext.P5 order and disallowed the costs ordered to PWs.2 and 3. The said judgment was pronounced behind the back of the petitioners and without hearing the petitioners who were the beneficiaries of the order for costs. Hence this review petition. 2. The learned counsel for the defendants/respondents submitted that the costs was disallowed to the review petitioners in the light of the judgment in W.P.(c) No.810/2010 and that the costs was ordered for examining them on commission whereas after Ext.P5 order the R.P. No.560 of 2010 3 petitioners were actually examined in court pursuant to the judgment of this Court in W.P.(c).No.810/2010. 3. It is true that the petitioners were not examined on commission. But it was the 1st defendant who wanted the examination of the petitioners herein on commission on his filing a petition for re-opening the evidence. It was under these circumstances that the learned Sessions Judge passed Ext.P5 order awarding the costs as mentioned above. The said order was set aside by this Court without hearing the petitioners herein. The petitioners were thereafter examined in court and not on commission. The petitioners had to travel all the way from Kottayam and Thamarassery respectively to appear before court on three days. Taking into account all the above circumstances, I am of the view that this Court was not justified in disallowing the costs ordered to the petitioners even though the quantum fixed for the 1st petitioner was on the higher side. Accordingly this Review Petition is partly allowed R.P. No.560 of 2010 4 awarding costs of Rs.3,000/- to the 1st petitioner. The costs of Rs.1000/- awarded to the 2nd petitioner is not interfered with. The 1st defendant is given two weeks' time to deposit the costs. Dated this the 8th day of July, 2010. V. RAMKUMAR, JUDGE sj