IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 WP(C).No. 557 of 2009(N) ------------------------------------ OS.NO.338/2001 OF I ADDL.SUB COURT,THIRUVANANTHAPURAM. .................... PETITIONER: ------------------- G.SOMAN, MANAGING PARTNER,HOTEL AKASH, KOTTARAKKARA. BY ADV. MR.D.SAJEEV. RESPONDENTS: ------------------------ 1. M/S E.C.E.INDUSTRIES LTD, E.C.E.HOUSE, 28A, KASTHOORBHA GANDHI MARG, NEW DELHI. 2. M/S E.C.E.INDUSTRIES LTD,E.C.E.HOUSE, 28A,KASTHOORBHA GANDHI MARG, NEW DELHI, REP; BY ITS BRANCH MANAGER, C.ANILKUMAR,ECE INDUSTRIES LTD., BY PATTAM, THIRUVANANTHAPURAM. R1 & R2 BY ADV. MR.SABU S.KALLARAMOOLA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.557/2009-N: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE AFFIDAVIT AND PETITION IN I.A. NO. 6759/2008 ON THE FILE OF THE FIRST ADDITIONAL SUB COURT, THIRUVANANTHAPURAM. EXT.P.2: COPY OF THE JUDGMENT IN APPEAL NO.56/2004 DTD. 24/10/2008 OF THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM. EXT.P.3: COPY OF THE COMMON ORDER DTD. 11/12/2008 IN I.A. NO. 6759/2008 AND I.A. NO. 6640/2008 OF THE ADDL. SUB JUDGE, THIRUVANANTHAPURAM. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.557 of 2009 - N --------------------------------- Dated this the 22nd day of October, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: “i) To call for the records, which may leads to the passing of Ext.P3 order and quash the same as illegal, arbitrary nd one passed without any application of mind. ii) To issue a writ of mandamus or other appropriate writ direction or order commanding the 1st Additional Sub Court, Thiruvananthapuram to reconsider I.A.No.6759/2008 and pass orders in the same in its merits after giving a posting to the said I.A. before court and after affording the petitioner an opportunity to present his case. iii) To issue a writ of mandamus or other appropriate writ direction or order commanding the 1st Additional Sub Court, Thiruvananthapuram to reconsider I.A.No.6640/2008 and pass orders on the same after taking note that the petitioner has every right to adduce evidence through his witness and the witness was discharged by the trial court holding that he is a stranger to the agreement.” 2. Petitioner is the defendant in O.S.No. 338 of 2001 on the file of the First Additional Sub Court, Thiruvananthapuram. W.P.(C).No.557 of 2009 - N 2 Suit is one for money and the respondents are the plaintiffs. Challenge in the writ petition is against Ext.P3 order passed by the learned Sub Judge declining the request made by the petitioner in two applications, one for staying the trial of the suit till completion of the proceedings before the Consumer Disputes Redressal Forum, Kollam, and the other application for reviewing the order passed by the court for closing the evidence in the case. Both the applications moved by the defendant were dismissed vide Ext.P3 order. Propriety and correctness of Ext.P3 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioner. Though the respondent has entered appearance none turned up to argue on behalf of the respondents. 4. I heard the counsel for the petitioner. 5. Counsel for the petitioner submitted that the suit was previously dismissed for default. But later, restored subject to payment of cost of Rs.25,000/-. When the case was posted for remitting the cost ordered there was a change in the presiding W.P.(C).No.557 of 2009 - N 3 officer of the court and without giving respect to the earlier order the successor officer proceeded with the trial of the case. Till date the cost ordered for restoring the suit has not been paid by the respondents/plaintiffs is the submission of the counsel. After closing of the evidence of the plaintiffs and their witness an agent of the defendant was presented for examination as his witness. The court below declined to examine that witness holding that the defendant who has not personally appeared cannot give evidence in the case. The evidence of the defendant was thereupon closed, is the submission of the counsel. To review that order, an application was moved later. While that review petition was pending consideration another application was also moved in view of the decision rendered by the State Consumer Forum in an appeal over the very same disputes covered by the suit, for staying the trial of the suit till a decision is rendered by the Consumer Redressal Forum to which the State commission has remitted the matter for fresh consideration. The court below ignoring the facts and circumstances involved passed Ext.P3 order dismissing both petitions, according to the counsel. Perusing Ext.P3 order passed by the court below, it is seen, that W.P.(C).No.557 of 2009 - N 4 once the court declined examination of the witness produced by the defendant, the learned counsel appearing for the defendant had represented that the evidence could be closed as there was no further evidence for the defendant. So much so, what is given expression to in the order of the court, as to what had transpired in the trial before court, cannot be canvassed before this Court as not correct. If it was incorrect petitioner should have filed a review before the court concerned. However, having regard to the submissions made by the counsel with reference to what is stated in Ext.P3 order, I find the refusal of the court to examine the witness produced by the defendant for the reason that he has not personally appeared to give evidence cannot be approved. It is also brought to my notice that the witness produced was named in the witness schedule filed by the defendant. Naturally, an opportunity should have been extended to the defendant to examine his witness. The defendant did not mount the box and gave evidence in support of his contentions cannot be taken as a ground to deny opportunity to him to examine any other witness in the case. So much so, the order passed by the court below for closing the evidence and, later, rejecting the review petition W.P.(C).No.557 of 2009 - N 5 moved by the defendant cannot be sustained. However, I do not find any impropriety in the order passed by the court below in declining to stay the trial of the suit pending disposal of the proceedings before the Consumer Disputes Redressal Forum. So much so, Ext.P3 order is liable to be interfered only in respect of the closing of the evidence without giving opportunity to the defendant to lead evidence, and it is ordered accordingly. The learned Sub Judge is directed to give an opportunity to the defendant to tender evidence on his behalf and then dispose the suit, as expeditiously as possible, at any rate, within a period of three months from the date or receipt/production of a copy of this judgment. Writ petition is disposed as indicated above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-