IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 WP(C).No. 4170 of 2008(U) ------------------------- OS.140/2006 of SUB COURT,KATTAPPANA .................... PETITIONER: -------------------- A.MURUGAN, S/O.ANNAMALAI, ANNAMALAI ESTATE, MALI P.O. VANDANMEDU VILLAGE, UDUMBANCHOLA TALUK. BY ADV. SRI.C.K.PAVITHRAN SMT.M.K.PUSHPALATHA SRI.M.X.XAVIER SRI.K.BAIJU SMT.N.S.SUMI RESPONDENTS: -------------------------- 1. CARDAMOM MARKETING CORPORATION, VANDANMEDU, IDUKKI DISTRICT, KERALA STATE, REPRESENTED BY MANAGING PARTNER. 2. K.S.SCARIA, JUNIOR AGED 81 YEARS S/O.SCARIA, RESIDING AT POTTAMKULAM HOUSE, MYCOLOGY ESTATE, MUNDAKKAYAM VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT, KERALA STATE, PARTNER, CARDAMOM MARKETING CORPORATION, VANDANMEDU. 3. R.KRISHNASWAMY, AGED 85 YEARS S/O.K.RAMASWAMY GOWDER, RESIDING AT 109/14, NANDAGOPAL STREET, CUMBUM, THENI DISTRICT, PARTNER, CARDAMOM MARKETING CORPORATION, VANDANMEDU. 4. MATHEW SCARIA, POTTAMKULAM,AGED 60 YEARS, S/O.SCARIA, RESIDING AT MILLHEAVEN, BENGLOVE, KOTTICKAL VILLAGE, KOOTTICKAL KARA, KANJIRAPPALY TALUK, PARTNER, CARDAMOM MARKETING CORPORATION, VANDANMEDU. 5. V.J.DEVASIA @ RAJU, AGED ABOUT 50 YEARS, VECHOORETTU HOUSE, PARTNER, CARDAMOM MARKETING CORPORATION, VANDANMEDU. ..2/- ....2.... WPC.NO.4170/2008 U 6. MOHAN VARGHESE, AGED 55 YEARS, RESIDING AT MADAVANA HOUSE, PUTTADI KARA, ANAKKARA VILLAGE,UDUMBANCHOLA TALUK, IDUKKI DISTRICT, PARTNER, CARDAMOM MARKETING CORPORATION, VANDANMEDU. 7. K.K.VARKEY @ RICKSON JOY, AGED 55 YEARS, KUMMELIL HOUSE, PAKKIL P.O. NATTAKAM, KOTTAYAM, PARTNER. CARDAMOM MARKETING CORPORATION, VANDANMEDU. 8. T.K.S. RAGHUPATHI, AGED 65 YEARS, S/O.T.K.SURULANDY GOWDER, DOOR NO.20/24 K.V.R.KOVIL STREET, CUMBUM, THENI DISTRICT, PARTNER,CARDAMOM MARKETING CORPORATION, VANDANMEDU. 9. D.SAMPATHKUMAR, AGED 65 YEARS, S/O.N.R.DHARMAJAR GOWDER WEST CAR STREET K.K.PATTI, CUMBUM, THENI DISTRICT, PARTNER, CARDAMOM MARKETING CORPORATION, VANDANMEDU. 10. ZACHARIH MATHEW, AGED 42 YEARS, RESIDING AT VARIKKATTU HOUSE, PUTHANANGADY P.O. KOTTAYAM DISTRICT, PARTNER, CARDAMOM MARKETING CORPORATION, VANDANMEDU. 11. MATHEW UMMAN, AGED 23 YEARS, RESIDING AT ANCHERIL (POLACHIRACKAL) HOUSE, PUTHENANGADY P.O., KOTTAYAM DISTRICT, PARTNER, CARDAMOM MARKETING CORPORATION, VANDANMEDU. 12. GEORGE JOSEPH @ VAKKAMMA,AGED 70 YEARS, RESIDING AT KOKKAPPALLIL HOUSE, CEHMPALAM, NEDUMKANDOM, IDUKKI DISTRICT, PARTNER, CARDAMOM MARKETING CORPORATION, VANDANMEDU. 13. MATHEW NINAN @ TARUN MATHEW NINAN, AGED 22 YEARS, S/O.REJI MATHEW OF POLACHIRACKAL YWCA LANE, BAKER ROAD, KOTTAYAM, PARTNER, CARDAMOM MARKETING CORPORATION, VANDANMEDU. 14. M.S. MURUGAN, AGED ABOUT 50 YEARS, PARTNER,CARDAMOM MARKETING CORPORATION, VANDANMEDU RESIDING AT K.K.PATTY, CUMBUM VIA THENI DISTRICT. 15. K.RAMACHANDRAN, AGED 65 YEARS, RESIDING AT ANANDA NILAYAM, VANDANMEDU IDUKKI DISTRICT, KERALA STATE, MANAGER, CARDAMOM MARKETING CORPORATION, VANDANMEDU. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== W.P.(C) No.4170 OF 2008 ===================== Dated this the 5th day of February 2008 JUDGMENT This writ petition is preferred against the order of the Sub Court, Kattappana in I.A.No.37 of 2008 in O.S.No.140 of 2006. It is an application filed by the plaintiff to summon the 15th defendant as his witness. The averments in the petition is to the effect that when the matter was posted for evidence of the 15th defendant he had colluded with the other defendants and is not tendering any oral evidence. Therefore he requests the 15th defendant to be examined as a witness in the above case. The court below held that the circumstances mentioned are not sufficient to invoke the discretionary power as held in the decisions for allowing the application. A Division Bench of this Court in the decision reported in Jortin Antony v. S.P.D. Marthanda Varma(2000(2) KLT 680) held that “we are thus of the view that a party to the suit does not have a right as such to summon the opposite party to give evidence. It is really left to the court, possibly after the evidence of all the witnesses made available is completed, to consider whether the examination of one of the parties who has not come before WP(C) 4170/2008 -:2:- court, is necessary and in that context if found necessary, to compel that party to give evidence in exercise of its jurisdiction under R.14 of Order XVI of the Code. A plaintiff like the one in the present case, cannot as a matter of course include the defendant in his schedule of witnesses and as of right seek the issuance of summons to the defendant for being examined as a witness on his own behalf”. Learned counsel for the petitioner submits that in the above case referred to the defendant was included as a witness in the place of witness schedule whereas in this case only on completion of evidence an application is filed. It is fundamental that no party can be called upon by the opposite side to give evidence against his own case or against his own interest. That is why the extra-ordinary jurisdiction to exercise the power of examining a witness on the opposite side is only given to the court. When the court which is in control of the matter is most competent court to deal with the question whether such a discretion has to be exercised or not. The court, in this case, felt that such an extra-ordinary situation does not arise and therefore it is not a fit case to exercise the jurisdiction. I fully concur with the finding of the court below and dismiss this writ petition. WP(C) 4170/2008 -:3:- M.N.KRISHNAN, JUDGE Cdp/-