IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 7TH SEPTEMBER 2010 / 16TH BHADRA 1932 WP(C).No. 27704 of 2010(R) -------------------------- OP.1012/2009 of FAMILY COURT, MALAPPURAM .................... PETITIONER: --------------- MOHAMMED SAIEDH, AGED 32 YEARS, S/O. ABDUL KAREEM, TASBEEH MANZIL, CHERAKARA ROAD, PANDIKKAD ROAD, BYEPASS ROAD JUNCTION, MANJERI P.O., MALAPPURAM DISTRICT, PIN-676 121. BY ADV. SRI.P.VENUGOPAL (1086/92) RESPONDENT: --------------- MUTTENGADAN KADEEJA, AGED 25 YEARS, D/O. HASSAN HAJI (LATE), CHELOOR P.O., PIN-676 504, KODUR, MALAPPURAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.L.JOSEPH FRANCIS, JJ. ********************** W.P(C) No.27704 of 2010 ********************* Dated this the 7th day of September, 2010 JUDGMENT BASANT, J. Petitioner is the husband. There are 3 proceedings pending before the Family Court, Malappuram, in which the petitioner is a party. One is a petition for restitution of conjugal rights filed by him; the second is a petition filed by the wife for return of gold ornaments, cash etc. and the third is a claim for maintenance under Section 125 Cr.P.C filed by the wife. All these 3 proceedings were consolidated and joint trial was ordered. The witnesses on the side of the petitioner have been examined. 2. Altogether 5 witnesses were examined on the side of the petitioner - PW1 on the first day and the other 4 on a later day. When PW1 was examined, the petitioner was represented by one counsel. Before the matter came up for hearing on the next date, the petitioner had to change his counsel. It was realised by the petitioner that PW1 was not cross examined on certain aspects. According to the petitioner, the counsel had cross examined PW1, ie. the wife, only on the assertions relating W.P(C) No.27704 of 2010 2 to her claim for return of gold and cash. On certain other important aspects, there was no cross examination. The petitioner therefore filed an application requesting the Court to permit the petitioner to recall PW1 and cross examine PW1. That petition was adjourned. The other witnesses on the side of the petitioner were examined. Subsequently by the impugned order, the petition filed by the petitioner for permission to recall PW1 and cross examine her was dismissed. The petitioner claims to be aggrieved by the impugned order. The petitioner submits that the denial of opportunity results in failure and miscarriage of justice. If jurisdiction under Article 227 of the Constitution is invoked promptly, that would avoid a lot of unnecessary protraction of proceedings and unnecessary waste of time. In these circumstances, it is prayed that permission may be granted to the petitioner to cross examine PW1. It is asserted before us that PW1 is very much available and was present before Court on the last date of posting. The learned counsel for the petitioner submits that the petitioner is willing to make amends by compensating the respondent/wife reasonably for the inability/omission of his counsel to put all relevant questions when PW1 was cross examined on that earlier date. W.P(C) No.27704 of 2010 3 3. We have heard the learned counsel for the petitioner. We have not ordered notice to the respondent. We are conscious of the nature of the extra ordinary constitutional jurisdiction under Article 227. We take note of the fact that a revision petition is not maintainable against the impugned order. An appeal is also not maintainable against the impugned order under Section 19(3) of the Family Courts Act, the same being not a final order. But all the same, we take note that a stitch in time saves nine and permission if granted to the petitioner to cross examine PW1 after recalling her would really save a lot of unnecessary contentions and time in future. We are, in these circumstances, satisfied that even without notice to the respondent, this petition can be allowed. 4. In the result: a) This Writ Petition is allowed; b) The Family Court shall give the petitioner an opportunity to recall PW1 and cross examine her on condition that the petitioner deposits an amount of Rs.1,500/- (Rupees One thousand five hundred only) as cost before the Family Court (or pays to the respondent) on 08.09.2010, to which date the case now stands posted to. If such amount is deposited/paid, the W.P(C) No.27704 of 2010 4 Family Court shall grant the petitioner opportunity to cross examine PW1. The petitioner herein shall not be entitled to seek any further time for cross examination of PW1. The court below shall direct PW1 to be recalled and cross examined if cost is paid and thereafter shall continue to proceed with the trial. 5. Hand over a copy of this judgment to the learned counsel for the petitioner straightaway for production before the Family Court. Report regarding compliance shall be submitted by the Family Court. (R.BASANT, JUDGE) (M.L.JOSEPH FRANCIS , JUDGE) rtr/