IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 30TH NOVEMBER 2010 / 9TH AGRAHAYANA 1932 OP(C).No. 927 of 2010(O) ------------------------ I.A.NO.4583/06 IN OS.229/2002 of I ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER : ----------------------- P.R. GOPALAKRISHNAN, S/O.RAGHAVAN, AGED 58 YEARS, ADVOCATE, VANCHIYOOR, THIRUVANANTHAPURAM. BY ADVS. SRI.J.S.AJITHKUMAR, SRI.A.ASWA KUMAR. RESPONDENT(S): --------------------------- BANK OF INDIA, REPRESENTED BY ITS ZONAL MANAGER, ANWAR BADSHAH, ZONAL MANAGER, ZONAL OFFICE, ERNAKULAM - 682 016. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.927 of 2010 --------------------------------------- Dated this 30th day of November, 2010 JUDGMENT Plaintiff in O.S.No.229 of 2002 of the court of learned Additional Sub Judge-I, Thiruvananthapuram is the petitioner before me challenging Ext.P8, common order to the extent it concerned dismissal of I.A.No.4583 of 2006. Petitioner is an Advocate practising in the courts at Thiruvananthapuram and sued the defendants for realisation of his professional fee and for damages. Respondent was impleaded as defendant No.12. In the course of the suit petitioner filed application to serve interrogatories on the respondent and that application was allowed. Pursuant to that order, respondent filed Exts.P2 and P3, counter affidavits. Petitioner was not satisfied with the said affidavits and thereon requested the court to direct respondent to file proper affidavit and produce documents. Petitioner says that accordingly, court directed respondent to file proper affidavit and produce documents but in spite of repeated directions and giving sufficient opportunity respondent did not comply with the said orders. Thereon, petitioner filed Ext.P5, I.A.No.4583 of 2006 for examination of respondent/defendant No.12 on Exts.P2 and P3, O.P(C).No.927 of 2010 : 2 : counter affidavits filed on its behalf. Petitioner also filed I.A.No.1451 of 2010 for examination of defendant No.1. Yet another application filed is Ext.P7, intended to strike off defence of respondent/defendant No.12 for alleged non compliance of the order to file proper affidavit and produce documents. Learned counsel contends that in the meantime petitioner was examined as PW1 on 28-01-2009 and the case was posted on 09-02-2009 for further evidence. Now, before examination of witnesses on the side of petitioner is completed the court has posted the case for evidence of defendants. Challenge is to Ext.P8, order to the extent it concerned Ext.P5, I.A.No.4583 of 2006. Learned counsel has contended that under Rule 2 of Order XIX and Rules 11 and 21 of Order XI of the Code of Civil Procedure (for short, “the Code”) court ought to have exercised the discretion in favour of petitioner to permit him cross examine respondent regarding Exts.P2 and P3, counter affidavits. Learned counsel has also placed reliance on the decision in Jortin Antony Vs. Sree Padmanabha D. Marthanda Varma (2001(1) KLT 511) and Suresh Babu Vs. Food Corporation of India (2007(4) KLT 135). O.P(C).No.927 of 2010 : 3 : 2. Ext.P8, order to the extent I.A.No.1451 of 2010 for examination of defendant No.1 was dismissed, is not under challenge. Challenge is to the dismissal of Ext.P5, I.A.No.4583 of 2006. No doubt, it is not as if under no circumstances a party has no right to cross examine the opposite party but normally a party is not allowed to examine the opposite party as his witness. It depends on the facts and circumstances of each case whether such a power should be exercised and court should permit the party to examine the opposite party as witness of his side. Under Rule 2 of Order XIX of the code where the court is authorised to take evidence by affidavit, the court has the discretion to permit a party to cross examine the opposite party on the affidavit he has sworn. It is not as if the party has a right for examination of the deponent but, it is a case where the court is vested with the power to summon deponent for examination. It is not disputed that a reply to the interrogatories can be in the form of affidavit as stated in Rule 11 of Order XI of the Code. If that be so, it is not a case where petitioner has any right for examination of respondent on the counter affidavit. 3. Learned Sub Judge has stated reasons why cross examination of respondent is not to be permitted. That discretion O.P(C).No.927 of 2010 : 4 : having been exercised by the court below in the proper manner, I do not think that it is case where this court should exercise supervisory jurisdiction under Article 227 of the Constitution. The challenge to the common order to the extent it concerned dismissal of I.A.No.4583 of 2006 has to fail. 4. Learned counsel submits that Ext.P7, application to strike off defence of respondents as provided under Rule 21 of Order XI of the Code is pending consideration before the learned Sub Judge. If any such application is pending necessarily learned Sub Judge has to dispose of that application as provided under law and I direct learned Sub Judge to do so. 5. Yet another grievance aired by learned counsel is that even before evidence of petitioner was completed the case is posted for evidence of defendants. Learned counsel contends that the case is posted for evidence of defendants this day. Learned counsel has invited my attention to Ext.P4, witness list where sixteen witnesses are seen cited on the side of petitioner. Learned counsel requested that petitioner may be given opportunity to adduce evidence. I direct learned Sub Judge to give opportunity to the petitioner to adduce his evidence. If necessary, it will be open to the petitioner to seek review of any O.P(C).No.927 of 2010 : 5 : order posting the case for evidence of defendants and seek opportunity for examination of his witness. If any such application is filed learned Sub Judge shall consider that application and pass appropriate orders after hearing counsel for respondent and other defendants as well. This petition is disposed of as above. (THOMAS P JOSEPH, JUDGE) Sbna/-