IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 WP(C).No. 21326 of 2009(O) --------------------------------------- AGAINST THE ORDER IN IA 3385/09 IN OS.8/2004 of PRINCIPAL SUB COURT,ERNAKULAM . .................... PETITIONER(S): ------------------------- MAMMEN MATHEW, S/O.K.M.MATHEW, AGED 63 YEARS, EDITOR, MALAYALA MANORAMA DAILY, KOLLAM. BY MR.K.P.DANDAPANI, SENIOR ADVOCATE BY ADV. MR.MILLU DANDAPANI RESPONDENT(S): ------------------------- 1. DR.THOMAS ISAAC, S/O.T.P.MATHEW, AGED 51 YEARS, M.L.A., A.K.G.CENTRE, PALAYAM, THIRUVANANTHAPURAM. 2. SHRI.S.SUDHEESH, S/O.(FATHER'S NAME NOT KNOWN) AGED AROUND 53 YEARS, LECTURER, DEPARTMENT OF ENGLISH, S.N.COLLEGE, KOLLAM, PIN-691 001 AND RESIDING AT `GAYA', PATTATHANAM, KOLLAM, PIN-691 021. 3. SHRI.P.V.CHANDRAN, MANAGING DIRECTOR, MATHRUBHOOMI DAILY, KOZHIKODE. R1 BY ADVS.MR.ASOK M.CHERIAN, MR.S.KANNAN, SMT.S.RAKHEE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.21326/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PETITION AND AFFIDAVIT FILED IN SUPPORT OF IA. 3385/09 FILED BY THE IST RESPONDENT BEFORE THE SUB COURT, ERNAKULAM. P2:- COPY OF THE JUDGMENT DTD. 22.6.09 IN WPC. 15407/09 OF THIS HONOURABLE COURT. P3:- COPY OF THE COUNTER AFFIDAVIT FILED BY THE WRIT PETITIONER HEREIN TO EXT.P1 APPLICATION BEFORE THE SUB COURT, ERNAKULAM. P4:- COPY OF THE ORDER DTD. 2.7.09 IN IA. NO.3385/09 IN OS. 8/04 ON THE FILES of the SUB COURT, ERNAKULAM. P5:- COPY OF THE APPLCIATION FOR ADJOURNMENT FILED BY THE IST RESPONDENT HEREIN IN OS. 8/04 ON THE FILES OF THE SUB COURT, ERNAKULAM. TRUE COPY P.S. TO JUDGE tss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.21326 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 18th August, 2009 JUDGMENT The Writ Petition is filed seeking the following reliefs: 1. To call for the records leading to the case and issue a writ of certiorari or any other appropriate writ, order or direction, quashing Exhibit P4. 2. To issue a writ of mandamus or any other appropriate writ, order or direction, commanding the Principal Sub Court, Ernakulam to consider and pass orders, afresh in Exhibit P1 application in accordance with law considering all the objections raised by the writ petitioner and other defendants in Exhibit P1 application. 3. To issue such other appropriate writ, order or direction which this Hon'ble Court may deem fit in the circumstances of the case. 4. Award costs of these proceedings. 2. Petitioner is the third defendant in O.S.No.8 of 2004 on the file of the Principal Sub Court, Ernakulam. The first respondent is the plaintiff and the other respondents, co-defendants with the petitioner in the suit. Suit is one for damages. The first respondent/plaintiff moved an application for his examination, recording of his oral evidence, by appointing an Advocate W.P.C.No.21326/09 - 2 - Commissioner mainly setting forth the reason that as the Finance Minster of the State, in view of his onerous works schedule, it may be difficult for him to appear before the court on the date it is posted for recording evidence. Request made by the plaintiff as above was objected to by the defendants mainly contending that since the suit is one for claiming damages, his examination before court by which an opportunity to watch his demeanour and deportment will be available to the court, and that is essential for a proper adjudication of the dispute and fair trial of the case. The learned Sub Judge, after hearing the counsel on both sides, allowed the application for appointment of commission vide P4 order with the direction that adequate arrangements for audio and video recording of the examination shall also be taken and the unedited form of the C.D. to be produced before the court. Propriety and correctness of P4 order is challenged invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. Objection raised before the court below that examination of the plaintiff before the open court is essential so that the court will get an opportunity to watch his demeanour and deportment while recording his evidence is reiterated before me by the learned counsel for the petitioner to assail the W.P.C.No.21326/09 - 3 - impugned order by which examination of the plaintiff by way of commission has been permitted by the learned Sub Judge. Suit is for damages from the defendants is pointed out by the learned counsel for the petition contending that it is appropriate and necessary for a fair adjudication that the examination of the plaintiff be conducted in open court. Plaintiff is prepared to come over to the Guest House, Ernakulam for his examination but not prepared to be present before the court is taken exception to by the counsel stating that there is no merit in the application moved by him for appointment of a commission to record his evidence. Inviting my attention to Salem Advocate Bar Association v. Union of India (AIR 2005 S.C. 3353), the learned counsel for the petitioner submitted that by examining the plaintiff through commission the court will be deprived of the benefit of watch the demeanour of the witness and the suit being one for damages, it may affect the evaluation of the oral evidence of the plaintiff which in turn would cause prejudice and injury to the defendants. On the other hand, learned counsel for the plaintiff submitting that the request for appointment of commission was made not to avoid the court, but in view of the onerous responsibilities shouldered by the plaintiff as the Finance Minister of the State who has to attend to a busy work schedule. Objections to W.P.C.No.21326/09 - 4 - the commission application moved by the plaintiff and the orders passed by the learned Sub Judge are raised by the defendants, it is submitted, without any justifiable cause, but only as an experimental venture to get some pleasure from the inconvenience caused to the Minister of the State by his cross examination in open court inviting wide publicity. 3. Having regard to the submissions made and the facts and circumstances presented, I find that the request of the plaintiff has to be appreciated in the backdrop that he is a Minister of the State shouldering onerous responsibilities in service of the people. There cannot be any doubt that he has to attend a busy work schedule with severe time constraints in discharge of his responsibilities as a Minister having overall control over the mobilisation and defraying of the finance of the State. When he is one among the parties in a civil case whether as plaintiff or defendant, it would be ludicrous to insist for his waiting in the court hall till his case is called up for recording his evidence. Of course, the court can insist for recording his evidence in open court, but when it is not necessary nor required, there is no harm in recording his oral evidence by appointment of a commission. I do not find any merit in the submission of the learned counsel that watching of the demeanour and deportment of the plaintiff during his W.P.C.No.21326/09 - 5 - examination is crucial and has a vital value in appreciating his evidence and so much so, his examination before the open court is warranted. Demeanour and deportment of the witness during the course of his examination are to be considered relevant in appreciating in evidence, then it has to be recorded by the court and form part of his evidence. An Advocate Commissioner appointed by the court can also record those aspects if it is found so relevant during the examination of the witness. Suit is one for damages has also no significance in deciding the question whether examination of the plaintiff by way of commission is allowable or not. However, the direction given by the court for video recording of the examination of the plaintiff is not at all necessary and that direction shall stand vacated. Audio recording of the examination alone need be arranged and complied with by the Advocate Commissioner. Subject to the above modification of the directions given by the court below, the Writ Petition is closed. srd S.S. SATHEESACHANDRAN, JUDGE