IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 9TH JULY 2008 / 18TH ASHADHA 1930 WP(C).No. 18236 of 2008(U) -------------------------- OS.71/2002 of MUNSIFF COURT, PARAPPANANGADI .................... PETITIONER: ------------ CHERUSSERI SAINUDHEEN MUSALIYAR, S/O.LATE MUHAMMED MUSALIYAR, GENERAL SECRETARY, SAMASTHA KERALA JAMIYATHUL ULAMA AND THE CONVENER OF SAMASTHA KERALA JAMIAYTHUL ULAMA FATHWA COMMITTEE, RESIDING AT CHERUSSERI HOUSE, P.O.KONDOTTY, MALAPPURAM DISTRICT. BY ADV. SRI.R.RAMADAS RESPONDENTS: ------------- 1. PALLIYALI KUNHI MUHAMMEDKUTTY ALIAS P.K.M.KUTTY HAJI, S/O.KUNHALASSAN, RAHMATH MANZIL, A.C.BAZAR, MUNNIYOOR AMSOM DESOM, THIRURANGADI TALUK. 2. MANJAPPALLAN MUHAMMED MUSALIYAR, S/O.MANJAPPALLAN FAREETH MUSALIYAR, SADARMU-ALLIM IRSHAD SIBIYAN MADRASSA, PARAKKADAVU, MUNNIYOOR AMSOM DESOM, THIRURANGADI TALUK. BY ADV. SRI.P.K.MUHAMMED FOR R1 SRI.K.T.SHYAMKUMAR FOR R2 SRI.HARISH R. MENON FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO.18236 OF 2008 EXT.P1 TRUE COPY OF THE SUMMONS RECEIVED BY THE PETITIONER FROM THE MUNSIFF COURT, PARAPPANGADI IN O.S.NO.71/2002 DATED 5.12.2006. EXT.P2 TRUE COPY OF THE AFFIDAVIT SUBMITTED BY THE PETITIONER BEFORE THE MUNSIFF COURT, PARAPPANANGADI IN I.A.NO.1238/2006 IN O.S.NO.71/2002. EXT.P3 TRUE COPY OF ANOTHER SUMMONS DATED 16.11.2007 FROM THE MUNSIFF COURT, PARAPPANANGADI. EXT.P4 TRUE COPY OF THE AFFIDAVIT DATED 11.3.2008 FILED BY THE FIRST RESPONDENT BEFORE THE MUNSIFF COURT, PARAPPANANGADI. EXT.P5 TRUE COPY OF THE JUDGMENT IN WRIT PETITION W.P.(C) No.9539/2008 dated 19/3/2008. EXT.P6 TRUE COPY ORDER DATED 31.5.2008 IN I.A.NO.1238/2006, I.A.NO.1428/2007 AND I.A.NO.949/2008 IN O.S.NO.71/2008, MUNSIFF COURT, PARAPPANAGADI. EXT.P7 TRUE COPY OF THE NEWS ITEM APPEARED IN THE SIRAJ DAILY DATED 2.6.2008. //TRUE COPY// P.A. To JUDGE. M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.18236 of 2008 ------------------------------- Dated this the 9th July, 2008. J U D G M E N T First respondent instituted the suit against second respondent before Munsiff Court, Parappanangadi, as O.S.No.71 of 2002, seeking a declaration with regard to a marriage conducted by second respondent, alleging that that marriage was conducted in violation of the practice followed by Sunni sect. In the suit, after the evidence of the plaintiff, a witness list was filed along with an application and Munsiff issued Ext.P1 summons directing the witness, Cherusseri Sainudheen Musaliyar, described as Convenor of Samastha Kerala Jamiaythus Ulama Fathwa Committee, to produce the bye-law of Samastha Kerala Jamayuthul Ulama, and to give evidence. That witness appeared and produced a copy of the bye-law. Thereafter, Ext.P3 summons was issued to the petitioner in his capacity as Secretary/Convenor of Fathwa Committee under Samastha Kerala Jamiyathul Ulama, to produce the Fathwa issued pursuant to a question forwarded by A.K.Hussain Haji, the Secretary, Ihasul Islam Sangham, North Cheruvadi, dated 30.5.1983 and to give evidence. W.P.(C) No.18236 of 2008 2 Petitioner then filed Ext.P2 affidavit before the court stating that no such document is available and no minutes book is maintained showing the decisions of the Fathwa committee and to the knowledge of the petitioner, there is no record being maintained showing the decisions of the Fathwa committee and prior to 1996, Fathwa used to be recorded on the back of the question forwarded. 2. First respondent-plaintiff thereafter filed Ext.P4 petition to issue warrant against petitioner contending that the witness is purposely evading appearance in court and purpose is to protract the trial. Petitioner then approached this Court by filing W.P. (C) No.9539 of 2008. Under Ext.P5 judgment, dated 19.3.2008, this Court directed Munsiff to permit the witness to appear before the court through a lawyer and to hear the objections raised and pass appropriate orders. It was made clear that if it is an admitted document, the witness need not be examined and if it is for some other purpose, witness is to be examined, then the purpose is to be made known to the persons. It is in such circumstances learned Munsiff was directed to hear the objections and pass appropriate orders making it clear that if the court finds that examination of the W.P.(C) No.18236 of 2008 3 witness is necessary, the date is to be fixed for such examination. Thereafter, learned Munsiff heard the parties including the petitioner and passed Ext.P6 order finding that examination of the witness is necessary and to avoid difficulty, he could be examined by appointment of a Commission. Ext.P6 order is challenged in this petition filed under Article 227 of the Constitution of India. 3. The learned senior counsel appearing for the petitioner and learned counsel appearing for first respondent were heard. 4. The argument of the learned senior counsel is that Ext.P6 order is an abuse of process of the court, and inspite of Ext.P5 judgment of this Court, learned Munsiff did not consider why the petitioner is to be examined and unless examination of the petitioner is necessary, he should not have been directed to be examined as a witness. The learned senior counsel argued that is not the law that whenever a witness list is furnished, summons is to be issued to the witness, irrespective of the question whether evidence of the witness is necessary or not and when the witness list is not furnished, as W.P.(C) No.18236 of 2008 4 provided under Sub-Rule 1 of Order XVI of Code of Civil Procedure and subsequently when a petition is filed, court is bound to consider the purpose of the examination of the witness and can allow the petition only on recording reasons and when the purpose of his examination is not known to the petitioner and is not necessary for resolving the dispute involved in the suit, petitioner should not have been directed to be examined, even if it is by appointment of a Commission. 5. The learned counsel appearing for first respondent argued that evidence of petitioner is necessary to establish the procedure followed in issuing Fatwa as well as the disputed Fatwa which is relevant for the decision in the suit and being the head of the sect, it is for the petitioner to give evidence on the disputed fact and in such circumstances, when the learned Munsiff found that evidence of the witness is necessary, invoking the powers under Article 227 of the Constitution of India, this Court may not interfere with Ext.P6 order. 6. As pointed out by the learned senior counsel, the dispute involved in the suit is ineffect the dispute between two sects of W.P.(C) No.18236 of 2008 5 sunni community. Petitioner is the head of the rival faction of the Sunni community. It is not necessary to decide which is real Samastha in this petition. Whatever it be, the question is whether for the limited purpose of the suit, examination of the head of the rival sect of the plaintiff is necessary. Ext.P1 summons shows that originally summons was issued to the Convenor of Samastha Kerala Ulama Fathwa Committee to produce the bye-law. It is after production of a copy of the document by the Convenor, Ext.P3 summons was issued to the petitioner. In answer to the summons, petitioner filed Ext.P2 affidavit disclosing that he is not in possession of the document. It is thereafter first respondent sought to produce petitioner by arrest which compelled petitioner to approach this Court by filing a petition under Article 227 of the Constitution of India. When this Court found that before directing examination of the witness, it is necessary to find out the purpose for which the witness is to be examined, even after Ext.P5 judgment, first respondent did not file any statement or petition before the Munsiff stating the reason why the evidence of the petitioner is necessary. What is stated in Ext.P6 order is that in the opinion of the court, when plaintiff wants to get explanation for non-production of the document, which are considered W.P.(C) No.18236 of 2008 6 prime importance, the witness is to be examined. First of all, there is no material before the Court to show that the document sought to be summoned is in the personal custody of the petitioner. In fact, when the document was found necessary earlier, Ext.P1 summons was issued not to the petitioner, but to the Convenor who produced a copy of the document. In such circumstances, for explaining the non- production of the document, evidence of the petitioner is not necessary. 7. The argument of the learned counsel appearing for the first respondent is that being the head of the sect, petitioner could alone throw light into the mode of issuing Fathwa, as well as maintaining records. But even Ext.P6 order does not show that the purpose of the examination of the witness is to throw light into that matter. If petitioner had such a case, when the petition was heard by the learned Munsiff, after Ext.P5 judgment of this Court, that fact would have been definitely recorded by the learned Munsiff. It is more so as this Court wanted the trial court to find out the purpose for the examination of the witness which should be made known to the witness. As such a case was not projected before the trial court, I am W.P.(C) No.18236 of 2008 7 not inclined to accept the submission. If that be the case, I do not find the evidence of the petitioner necessary on the materials available. Therefore Ext.P6 order is quashed. 8. The learned counsel appearing for the first respondent then submitted that if a proper application is filed showing reason, the order may not preclude the trial court from considering the application. It is made clear that this judgment will not preclude the trial court from considering any application for examination of any witness in accordance with law. But if petitioner is to be examined, learned Munsiff must consider the purpose for which he is to be examined and petitioner should be informed of it and court shall grant opportunity to him to raise objections. M.SASIDHARAN NAMBIAR, JUDGE nj.