IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 21ST MAY 2010 / 31ST VAISAKHA 1932 WP(C).No. 9948 of 2010(O) ------------------------- AGAINST THE ORDER DATED 10/03/2010 IN IA 1779/2010 IN OS.478/2009 of I ADDL.M.C.,ERNAKULAM .................... PETITIONER: --------------- BIJU THOMAS, MAVILETHU, 25/126C,GROUND FLOOR, MAM RESIDENCE, JADE GARDENS, TEMPLE ROAD, KUNAMTHAI, EDAPPALI, KOCHI-24. BY ADV. SRI.R.KRISHNA RAJ RESPONDENTS: --------------- 1. ABDUL SHUKUR, CHULLIPPARAMBIL HOUSE, EDAVANAKKADU PO, KOCHI, NOW RESIDING AT MAM RESIDENCE, JADE GARDENS, AMBALAM ROAD, KOONATHAI, EDAPPALLI. 2. RELIANCE INFRATEL LTD., S.A.ROAD, KOCHI- 682 016. ADV. SRI.V.G.ARUN FOR R2 SRI.T.R.HARIKUMAR FOR R2 SRI.KKM.SHERIF FOR R1 SRI.LAL K.JOSEPH FOR R1 SRI.A.A.ZIYAD RAHMAN FOR R1 SRI.V.R.REKESH FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9948 of 2010(O) APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT P1 : Chief affidavit EXHIBIT P2 : Additional Chief Affidavit EXHIBIT P3 : Order of the Munsiff's Court RESPONDENTS' EXHIBITS:- Nil True copy P.A. to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.9948 of 2010 --------------------------------------- Dated this 21st day of May, 2010 JUDGMENT In this petition Ext.P3, order declining permission to file an additional chief affidavit is under challenge. Petitioner/plaintiff filed the suit for prohibitory injunction against installing a mobile tower on the building over which he claimed co-ownership right. After the respondents filed written statement, petitioner is said to have filed a reply affidavit (in answer to contentions raised in the written statement) and thereafter when the case came up for trial in the list, petitioner filed proof affidavit in lieu of chief examination. Petitioner was cross examined. At that time, noticing that the statements made in the reply affidavit were not incorporated in the proof affidavit, petitioner wanted an additional proof affidavit to be filed with the permission of the court. Learned Munsiff was declined permission vide Ext.P3 order stating that whatever petitioner had stated in the reply affidavit has already been stated in the original proof affidavit and hence it is not necessary to file additional proof affidavit and that even if permission is not granted petitioner is not put to any prejudice. Learned counsel for respondents submits that petitioner cannot W.P.C.No.9948 of 2010 : 2 : bring in by way of an additional proof affidavit what was not stated in original proof affidavit. Though it is the case of petitioner that plaint was amended incorporating the contentions raised in the reply affidavit, learned counsel for respondents would assert that there was no request for hearing the application for amendment and consequently no order thereon was passed. 2. Having heard counsel on both sides, I am inclined to think that petitioner can be given an opportunity to recall himself (PW1) and give further evidence. If on any matter not covered by the pleadings petitioner gives evidence, it will be open to the respondents to cross examine him on that line. Resultantly this writ petition is disposed of allowing the petitioner to recall himself (PW1) for further evidence. If any such application is filed before the learned Munsiff, learned Munsiff shall allow that application and allow PW1 to be recalled for further examination. I make it clear that if in the further examination PW1 deposes on any matter outside his pleadings it will be open to the respondents to cross examine him on that line. (THOMAS P JOSEPH, JUDGE) Sbna/-