IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 WP(C).No. 18944 of 2007(E) --------------------------------------- OS.2000/2004 of III ADDL.SUB COURT, KOZHIKODE .................... PETITIONER: ------------------- M/S.FRIDGE HOUSE, EAST NADAKKAVU, CALICUT.6, REPRESENTED BY PARTNER T.RAGHAVAN, S/O.THILAKARAJAN, WYNAD ROAD, CALICUT-6. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS: ----------------------- 1. M/S.LILLY AND LILLY, MAIN ROAD, SULTHAN BATHERY, WYNAD DIST. REPRESENTED BY PARTNER C.P.SADANANDAN, "KALA" , DHARMADAM P.O., THALASSERY. 2. C.P.SADANANDAN, PARTNER, M/S.LILLY AND LILLY, "KALA", DHARMADAN P.O., THALASSERY. 3. RINESH PATHROSE, PARTNER, M/S.LILLY AND LILLY, THADIKULANGARA HOUSE, KUPPADI P.O., SULTHAN BATHERY, WYNAD. 4. D.SHIMJITH, PARTNER, LILLY AND LILLY, PUTHUKUDI HOUSE, CHUNGAM, SULTHAN BATHERY, WYNAD DISTRICT. BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR - R2 SRI. JIJO PAUL - R3 & R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 18944 OF 2007 --------------------- Dated this the 20th day of February, 2008 JUDGMENT This writ petition is preferred against the common order passed by the Subordinate Judge, Kozhikode, in IA 1767/07 and 1768/07 in OS 200/04. The plaintiff is the petitioner herein. Petitioner filed a suit for recovery of an amount of Rs.1,10,000/-. 2. A reading of the lower court order will show that all was not well in proper prosecution of the case. The court by its order permitted the defendants to be cross-examined but declined the prayer to reopen the case and examination of one witness namely Smt. T.Beena. The said witness is proposed to be examined to prove that she has got knowledge about the transaction. She was the person in charge of the computer section and she is advised to take bed rest. So the plaintiff wanted to examine her by a commission. The court below rejected those prayers finding that they are not valid grounds. 3. At the outset, I do not want to say anything regarding the conduct of the party for the reason that the plaintiff is always WPC NO 18944/07 2 interested in prosecuting the suit and certainly the delay had been occasioned. It is also stated that the said witness proposed to be examined is a necessary witness for a proper appreciation of the matter and there is no point at the trial stage to throw away the prayer on the ground of delay, which will result in substantial injustice and it will only make a ground for appeal. 4. Therefore, on those basic principles, I allow the application to examine T.Beena by issuance of a Commission. But, I make it clear that the court below can fix the date for examination and the plaintiff has to co-operate and make the witness available for examination by the Commission at her residence or a convenient place, and further should not attempt to protract the matter. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE vps WPC NO 18944/07 3 WPC NO 18944/07 4 WPC NO 18944/07 5