IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH SUNDAY, THE 4TH JULY 2010 / 13TH ASHADHA 1932 WP(C).No. 22153 of 2010(O) -------------------------- AGAINST THE ORDER DATED 17/06/2010 IN IA.5050/2010 IN OS.3273/2007 of II ADDL.MUNSIFF COURT,THRISSUR .................... PETITIONER(S) :- ------------------------ K.N.PADMAJAN, S/O.KOTTAKKAL NARAYANAN, KUTTUR VILLAGE, DESOM, THRISSUR BY ADV. SRI.JIJO PAUL RESPONDENT(S) :- ------------------------- THRISSUR MINICIPAL CORPORATION, REPRESENTED BY SECRETARY, THRISSUR CORPORATION OFFICE, THRISSUR – 01. ADV. SRI.K.P.VIJAYAN FOR R1 SRI.V.M.SYAM KUMAR FOR R1 SMT.KRIPA ELIZABETH MATHEWS FOR R1 SRI.V.N.HARIDAS FOR R1 STANDING COUNSEL SRI.K.B.MOHANDAS SRI.T.G.LELLULAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt WP(C).No. 22153 of 2010 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of the plaint in O.S.No.3273/2007 on the file of the Munsiff's Court, Thrissur dated 18.12.2007. Ext.P2 :- Copy of the written statement dated 27.11.2008 filed by the respondent/ defendant in O.S.No.3273/2007. Ext.P3 :- Copy of the I.A.No.5049/2010 in O.S.No.3273/2007 dated 10.6.2010. Ext.P4 :- Copy of the I.A.No.5050/2010 in O.S.No.3273/2007 dated 10.6.2010. Ext.P5 :- Copy of the proof affidavit dated 15.6.2010 filed by the plaintiff in O.S.No.3273/2007. Ext.P6 :- Copy of the order dated 17.6.2010 in I.A.No.5049/2010 in O.S.No.3273/2007 pased by the Munsiff Court, Thrissur. Ext.P7 :- Copy of the order dated 17.6.2010 in I.A.No.5050/2010 in O.S.No.3273/2007 passed by the Munsiff Court, Thrissur. Respondent's Exhibits :- NIL //True Copy// P.A. to Judge THOMAS P. JOSEPH, J. ~~~~~~~~~~~~~~~~ W.P.(C). No.22153 of 2010 ~~~~~~~~~~~~~~~~~~~ Dated this the 4th day of July 2011 J U D G M E N T Petitioner is plaintiff in O.S.No.3273 of 2007 of the court of learned IInd Additional Munsiff, Thrissur. That suit is for prohibitory injunction and such other reliefs. After examination of some of the witnesses of petitioner, he filed Exts.P3 and P4, applications to receive the witness schedule and summon the Secretary of respondent/ defendant and to summon documents which allegedly are in the custody of respondent. The applications were opposed by the respondent. Learned Munsiff as per Exts.P6 and P7 orders dismissed the said applications. So far as Ext.P3, application is concerned, learned Munsiff observed that petitioner/plaintiff has no right to examine the opposite party as a witness. So far as Ext.P4, application for summoning documents is concerned, it is observed that the W.P.(C). No.22153 of 2010 -: 2 :- application is belated and hence cannot be entertained. Exts.P6 and P7, orders are under challenge in this writ petition. 2. Learned counsel for petitioner contends that in the nature of allegations made in the plaint and defence raised by the respondent, documents mentioned in Ext.P4, application are relevant and necessary for a just decision of the case. It is also submitted that to prove the said documents, examination of Secretary of the respondent is essential. Learned counsel for the respondent has supported the orders under challenge. 3. So far as Ext.P4, application which led to Ext.P7 order is concerned, learned Munsiff has stated that the application is belated. Even though the application may have been belated, it was appropriate that petitioner was given opportunity to adduce evidence. Learned counsel for respondent has a contention that documents sought to be produced are not necessary for decision of the case. W.P.(C). No.22153 of 2010 -: 3 :- Learned Munsiff has to decide that question having regard to the contentions raised by the parties in the suit. 4. So far as summoning of Secretary of respondent is concerned, true, there are decisions which say that a party to the proceeding has no right to summon the opposite party as a witness. But there is no absolute rule in that regard. The question whether opposite party should be summoned depends on the facts and circumstances of each case. Here, respondent/defendant is a Corporation which by itself is a legal entity, though it is represented by its Secretary. In this circumstance, learned Munsiff ought to have considered whether examination of Secretary of the respondent is necessary to prove the documents which petitioner wanted respondent to produce. Learned Munsiff has also to bear in mind that under Secs.76 and 77 of the Evidence Act it is open to the petitioner to get certified copies of public documents (if any) in the custody of the respondent and, prove the same even without examination W.P.(C). No.22153 of 2010 -: 4 :- of any witness. Learned counsel for petitioner requested that petitioner may be granted some time to obtain certified copies of the relevant documents and produce the same in court. Having regard to the circumstances stated above, I am inclined to interfere with Exts.P6 and P7 orders and remit Exts.P3 and P4 applications for fresh decision by the learned Munsiff. Resultantly, this Writ Petition is allowed in the following lines :- (1)Exts.P6 and P7 orders are set aside and Exts.P3 and P4 applications are remitted to the learned Munsiff for fresh decision in the light of the observations made above. (2)Learned Munsiff shall give sufficient opportunity to the petitioner to produce certified copies of documents sought to be summoned and prove the same in accordance with Secs.76 and 77 of the Evidence Act. W.P.(C). No.22153 of 2010 -: 5 :- (3)In case petitioner is not able to get certified copy of any of the documents, it is open to the petitioner to request learned Munsiff to summon such document. (4)In case examination of any official of the respondent is required to prove any of the documents as aforesaid, it is open to the learned Munsiff to summon the witness for proof of the document. THOMAS P. JOSEPH, JUDGE. Jvt