IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 27TH JUNE 2008 / 6TH ASHADHA 1930 WP(C).No. 19503 of 2008(V) -------------------------- AGAINST THE ORDER IN IA 753/2008 IN OS.288/1998 of MUNI-MAGI COURT, DEVIKULAM .................... PETITIONERS: ---------------- 1. KAMALAM, W/O.C.HENRI, AGED 65 YEARS, MADASSEIL HOUSE NEAR LITTLE FLOWER GIRLS HIGH SCHOOL, NULLATANNI ROAD, MUNNAR. 2. C. HENRY, S/O.CHRISTU DAS, AGED 70 YEARS, RESIDING AT MADASSERIL HOUSE NEAR LITTLE FLOWER GIRLS HIGH SCHOOL NULLATANNI ROAD, MUNNAR. BY ADV. SRI. K.V.SADANANDAPRABHU SRI. P.VIJAYARAGHAVAN RESPONDENT -------------- M/S.TATA TEA LIMITED, REGIONAL OFFICE, MUNNAR P.O. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/ 6 / 2008 , THE COURT ON 27/06/2008 DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.19503 OF 2008 =========================== Dated this the 27th day of June, 2008 JUDGMENT Petitioners are defendants in O.S.98/1996 and O.S.288/1998 on the file of Munsiff Court, Devikulam. Suits were included in the special list on 4.6.2008. On that day petition for adjournment was moved by petitioners on the ground that counsel appearing for them is no more. Learned Munsiff granted seven days time and posted the suits to be taken on 11.6.2008. On that day, a Commission was appointed to record the evidence and case was posted to 17.6.2008. Finding that Commissioner so appointed was earlier appointed as Commissioner for local inspection and being a witness in the suit, that counsel returned the warrant on 17.6.2008. Learned Munsiff thereafter appointed another counsel as the Commissioner and posted the suit to 18.6.2008. On 17.6.2008 itself plaintiff was examined by the Commissioner. On 18.6.2008 W.P.(C)19503/2008 2 Commissioner did not submit the report though plaintiff was examined on 17.6.2008. On behalf of the petitioners witness was examined by a junior counsel. It was contended that cross examination was not complete and the witnesses had to be cross examined further as arrangements could not be made for cross examination as petitioners did not get information about the examination of the witness by the Commissioner on 17.6.2008. On 18.6.2008 petitioner I.A.821/2008 to recall PW1. Learned Munsiff posted the petition to 23.6.2008 as evidence finally. On that day as per a detailed order the petition along with other petitions were dismissed. The case of the petitioners is that without granting opportunity to the petitioners to adduce further evidence or to argue the case, suit was posted for judgment. This petition is filed under Article 227 of the Constitution of India to quash Ext.P2 to P4 orders. 2. Ext.P2 is the order in I.A.753/2008 in W.P.(C)19503/2008 3 O.S.288 of 1998 to issue summons to a witness to appear before the court with the records and to give evidence. It was dismissed by the learned Munsiff on the ground that certified copy is available it being a public document. Ext.P3 order was passed in I.A.754/2008. It is a similar petition filed in O.S.98/1996 which was also dismissed for the very same reason as in Ext.P2. Under Ext.P4 order, learned Munsiff dismissed the petition for recalling PW1 on the ground that it is only a tactics to protract the trial. 3. Learned counsel appearing for petitioners was heard. In view of the order to be passed I do not find it necessary to issue notice to the respondents and to protract the proceedings. 4. Learned counsel submitted that on 17.6.2008 though the earlier Commissioner Advocate Prasannakumari was changed and Advocate Dilip Thomas was appointed as Commissioner, court did not give a specific direction to the Commissioner to W.P.(C)19503/2008 4 examine the plaintiff on the same day and petitioners were not aware when the witness will be examined and in such circumstance petitioners could not make arrangement to cross examine PW1 while the Commissioner was examining him and after getting information about the examination, petitioners arranged the junior counsel to cross examine the witness and PW1 was only partly cross examined and it is in such circumstance, petitioners filed I.A.821/2008 and if the learned Munsiff has allowed that application on 18.6.2008, the witness could have been examined on the same day and the complication could have been avoided. Learned counsel also argued that eventhough all the petitions were dismissed, learned Munsiff did not grant opportunity to the petitioners to argue the case and posted the case for judgment and in such circumstance opportunity is to be granted to the petitioners to cross examine PW1 and also to argue the case. W.P.(C)19503/2008 5 5. On hearing the learned counsel and on going through Ext.P2 to P4 orders, I do not find it necessary to interfere with Ext.P2 and P3 orders in exercise of the powers under Article 227. Petitioners are entitled to challenge them in the appeal against the final judgment if it goes against them. But it is clear from Ext.P4 that when petitioners sought an opportunity to recall PW1 for cross examination, and opportunity was granted much before 23.6.2008, the day on which the suit was adjourned, examination of the witness could have been over and the difficulties to the parties could have been avoided. In such circumstance, Ext.P4 order is quashed. Learned Munsiff is directed to permit petitioners to recall and cross examine PW1 at their expenses on a day to be fixed by the learned Munsiff. Munsiff shall also grant opportunity to the petitioners to argue the case before posting the case for judgment. It is made clear that petitioners shall W.P.(C)19503/2008 6 not seek further adjournment before the trial court. Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006