IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 WP(C).No. 18379 of 2009(O) -------------------------- OS.98/2006 of SUB COURT, CHERTHALA .................... PETITIONER(S): ------------------------- KARUNAKARAN, AGED 68, S/O.LATE RAMAN, PUTHENVELIYIL HOUSE, C.M.C.20, CHERTHALA NORTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. BY ADV. MR.VARGHESE C.KURIAKOSE RESPONDENT(S): -------------------------- JOY MATHEW, AGED 54, S/O.LATE KURIAN MATHEW, THAYYIL HOUSE, THATHAMPALLY, ALAPPUZHA, MULLACKAL VILLAGE, AMBALAPUZHA TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.18379 of 2009 - O --------------------------------- Dated this the 1st day of July, 2009 J U D G M E N T This writ petition is filed seeking the following reliefs: “To call for the records leading to Ext.P9 common order examine the same and set aside the same holding the same as illegal and perverse and allow I.A.No.625/2009, 627/2009 and 657/2009, Exts.P3, P4 and P5 applications and permitting the petitioner to reopen the evidence recall himself and adduce further evidence in O.S.No.98/2006 pending before Subordinate Judge's Court, Cherthala and thus render justice to the petitioner if necessary by issuing a writ in the nature of certiorari” 2. Petitioner is the plaintiff inO.S.No.98/2006 on the file of the Sub Court, Cherthala. Suit is one for money based on a pronote. Respondent is the defendant in that suit. During the course of recording evidence of the petitioner, counsel for defendant adverted to certain aspects with reference to the suit notice issued. It appears, the defendant wanted to project a case with reference to the notice that the transaction is different from that pleaded in the plaint. Some admissions were also made by W.P.(C).No.18379 of 2009 - O 2 the petitioner/plaintiff during the course of examination in relation to the notice. Petitioner/plaintiff, after completion of his evidence, moved two applications before the court, one for admitting additional list of witnesses to examine the counsel who issued the notice and another for summoning the manager of the bank from which he is stated to have collected the money for advancing the amount to the defendant in respect of which the pronote is alleged to have been issued. Another petition was also moved to reopen the evidence. The applications were opposed by the respondent/defendant filing written objections. The learned Sub Judge, after hearing the counsel on both sides dismissed all the applications by a common order. Ext.P9 is the copy of that order. The propriety and correctness of Ext.P9 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioner. 4. Learned counsel for the petitioner submitted that the dismissal of the applications, in the facts and circumstances W.P.(C).No.18379 of 2009 - O 3 involved in the case, was improper and at any rate, petitioner/plaintiff could have been given an opportunity to explain the answers given by him in his cross examination by examining the witnesses named in his additional witness list. Inviting my attention Sections 17 and 21 of the Indian Evidence Act that admissions can be explained by a party the learned counsel urged for interfering with Ext.P9 order passed by the court below. Perusing Ext.P9 order with reference to the facts and circumstances involved and submissions made by the learned counsel, I find very many observations expressed by the learned Sub Judge could have been avoided. Some observations made in the order indicate that the learned Sub Judge had already pre- judged the issue before adjudication of the disputes involved. Having regard to the facts and circumstances, I find that the petitioner/plaintiff can be given an opportunity for his recalling and further examination to furnish his explanation, if any. In these matters, the court has to take note that the party will get an opportunity to explain the mistakes, if any, which occurred during their cross examination only before the trial court. W.P.(C).No.18379 of 2009 - O 4 Similarly, if the petitioner desires to produce the pass book from the bank as observed by the court in Ext.P9 order, that also could be permitted. The petition filed by the plaintiff for reopening the evidence shall be considered by the court below, in the light of the observations made above. Subject to the above observations this writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-