IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 OP(C).No. 1006 of 2010(O) ------------------------- IA NO.4120/2010 IN OS.3/2010 of II ADDL. DISTRICT COURT, THIRUVANANTHAPURAM .................... PETITIONER ------------------------------ V.RAJENDRA PRASAD, AGED 58 YEARS, S/O.VIJAYAN, SOUTHERN SEA VIEW APARTMENTS PERUMKULAM,JAANARDHANAPURAM,VARKALA P.O., KOLLAM DISTRICT BY ADV. SRI.RAJU JOSEPH (SR) SRI.GEORGE KUTTY MATHEW SRI.C.N.MIDHUN RESPONDENT(S): --------------- SAJAN THOMAS ABRAHAM, AGED 50 YERAS,S/O.K.T.ABRAHAM,PROPRIETOR, COUNTY INN,CHUDUKADU ROAD, PERUKULAM, JANARDHANAPURAM,VARKALA P.O.,KOLLAM-695141. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.1006 of 2010 -------------------------------------- Dated this the 6th day of December, 2010. JUDGMENT The challenge in this petition is to Ext.P5, order dated November 23, 2010 passed by the learned Additional District Judge -II, Thiruvananthapuram on I.A.No.4120 of 2010 in O.S.No.3 of 2010, an action against passing off. Respondent/plaintiff had cited certain witnesses on his side when the case was included in the list on 13.09.2010. Respondent and a witness were examined and Exts.A1 to A3 were marked. It was represented that evidence of respondent was closed. On 18.09.2010 petitioner/defendant was examined and Exts.B1 to B14 were marked. Later his witnesses also were examined. Then came I.A.No.4120 of 2010, an application from respondent to re-open the case as he wanted to examine certain witnesses who were cited in the original witness schedule but given up. That application was opposed by the petitioner contending that attempt is to fill up lacuna in the evidence of respondent/plaintiff and the witnesses. Learned Additional District Judge, according to the counsel, by a non-speaking order has allowed the application without adverting to the relevant facts as well as the amendment to Order XVIII of the Code of Civil Procedure (for short., “the Code”). Learned counsel contended that the power of court to summon any witness after evidence is closed conferred under Sub-rule (4) of Rule 2 and Rule 17A of Order XVIII of the Code has been taken away by the amendment of 2002 and hence the court OP(C) No.1006/2010 2 below could not have allowed I.A.No.4120 of 2010, at any rate, without stating cogent reasons for that. Learned counsel asserted that examination of witness on the side of respondent at this stage would prejudice the case of petitioner. 2. Sub-rule (4) of Rule 2 of Order XVIII of the Code omitted by the amendment of 2002 stated that “notwithstanding anything contained in this rule, the Court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage.” Rule 17A (also deleted by the said amendment) stated that “where a party satisfies the Court that, after the exercise of due diligence, any evidence was not within his knowledge or could not be produced by him at the time when that party was leading his evidence, the Court may permit that party to produce that evidence at a later stage on such terms as may appear to it to be just”. Argument is that by deletion of the said provisions court lacked jurisdiction to allow examination of the witness after the evidence of the party is closed. Learned counsel submitted that the above amendments were made for the purpose of speedy trial of the suit. 3. If that was the object of deleting the said provisions, certainly it was not to take away the power of court to permit examination of witness after the evidence was closed. I am not persuaded to think that under any circumstances the court is powerless after the evidence of a party is closed to allow him adduce further evidence. That obviously was not the intent of the OP(C) No.1006/2010 3 legislature when the above said provisions were deleted from the Code by amendment of 2002. The above said provisions were intended to ensure speedy trial. Certainly the legislature wanted to restrict the right of the parties to examine witness at any time. Assuming that right of the party is restricted, that does mean that the power of court to allow examination of witness at a later stage if circumstances warranted that, is taken away. In the absence of specific provision, court can resort to Section 151 of the Code ofcourse, bearing in mind the laudable object legislature had in mind while deleting the above said provisions from Order XVIII of the Code. 4. In this case witnesses were cited in the list even before the case taken up for trial on 13.09.2010. But for some reason or other, respondent thought that their examination is not necessary and hence without their examination his evidence was closed. Respondent has stated reasons for summoning the witnesses. Objection of petitioner is that examination of witness at this stage would prejudice him and that attempt is to fill up 'lacuna'. 'Lacuna' is the inherent vedge in the case of respondent. Having heard learned counsel for petitioner I am not inclined to think that this is a case where, if permission is granted to the respondent to examine witnesses shown in the original witness schedule though later given up, it would prejudice petitioner. After all if petitioner wanted to adduce further evidence consequent to the evidence being adduced by the respondent, it is open to the petitioner to OP(C) No.1006/2010 4 request learned Additional District Judge to permit him adduce further evidence and if any such request is made learned Additional District Judge shall consider that request and pass appropriate orders having regard to the facts and circumstances of the case The petition is dismissed with the above observation. THOMAS P.JOSEPH, Judge. cks