IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 26TH AUGUST 2009 / 4TH BHADRA 1931 WP(C).No. 28287 of 2004(P) -------------------------- OS.191/2002 of SUB COURT,NEYYATTINKARA .................... PETITIONER(S): ---------------------- K.VASANTHA KUMARI, W/O.RAVEENDRANATH, SUDHARMA APARTMENTS, VAZHUTHACAUD, THIRUVANANTHAPURAM. BY ADV. SRI.K.B.PRADEEP RESPONDENT(S): ------------------------ 1. JAYA ALFRED, W/O.LATE K.ALFRED, ROSE VILLA, THOONGAMPARA, KANDALA P.O., THIRUVANANTHAPURAM. 2. SHINEN ALFRED, D/O.LATE E.ALFRED, RESIDING AT DO. DO. 3. CHRISTY ALFRED (MINOR), S/O.LATE K.ALFRED, RESIDING AT DO. DO. REPRESENTED BY HIS MOTHER, 1ST RESPONDENT. ADV. SRI.R.T.PRADEEP FOR R1TO3 SRI.V.VIJULAL FOR R1TO3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/08/2009, THE COURT ON 26/8/2009 DELIVERED THE FOLLOWING: WP(C).No. 28287 of 2004(P) APPENDIX PETITIONER'S EXHIBITS:- Ext.P1: COPY OF THE APPLICATION IS.741/04 DATED 8.6.04 FILED BY THE PETITIONER BEFORE THE SUB COURT, NEYYATTINKARA. Ext.P2: COPY OF THE ORDER DATED 2.9.04 PASSEDIN EXT.P1 APPLICATION. Ext.P3: COPY OF THE APPLICATION IA.1233/04 DATED 14.9.04 FILED BY THE PETITIONER BEFORE THE SUB COURT, NEYYATTINKARA. Ext.P4: COPY OF THE ORDER DATED 15.9.04 PASSED IN EXT.P3 APPLICATION. RESPONDENTS' EXHIBITS:- Ext.R(a): COPY OF THE PLAINT IN OS.NO.191/2002 OF THE SUB COURT, NEYYATTINKARA. Ext.R1(b): COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER/ DEFENDANT IN OS.NO.191/2002 OF THE SUB COURT, NEYYATTINKARA. ( TRUE COPY ) PA TO JUDGE. Kvs/- P.S.GOPINATHAN, J. == = = = = = = = = = = = = = = = = = WP(C).No.28287 of 2004-P. = = = == = = = = = = = = = = = = = = Dated this the 26th day of August, 2009. J U D G M E N T Petitioner is the defendant in OS.No.181/2002 on the file of the Sub Court, Neyyattinkara. The respondents herein, who are the widow and children of late K.Alfred, instituted the above suit seeking a decree for realisation of a sum of Rs.2,85,000/- along with interest. According to the respondents, the petitioner borrowed the said amount from the late husband of the first respondent and in discharge of the said liability eight cheques, which were marked as Exts.A1 to A8 before the trial court, were issued and that despite the request to pay back the amount and a lawyer notice caused on 29.8.2002 the liability was not discharged. 2. The petitioner inter-alia contended that there was some monetary transaction between the husband of the petitioner and the husband of the first respondent some time back in 1994 and that Exts.A1 to A8 were blank cheques issued by the petitioner as security for the money advanced and that the liabilities were later discharged and that the cheques so issued WP(C).No.28287 of 2004-P. -: 2 :- were not returned on the pretext that the cheques were misplaced. Without the consent of the petitioner material alterations were made in Exts.A1 to A8 by filling up the columns and the suit was instituted and that there is no debtor-creditor relationship between the petitioner and the husband of the first respondent and that the suit was instituted at the instance of a Chartered Accountant who was on loggerheads with the petitioner and prayed for dismissal of the suit. 3. The suit was posted for trial in the list on 6.2.2004 and thereafter the first respondent and two other witnesses were examined on the side of the respondents. The documents were also marked as Exts.A1 to A8. The petitioner was examined as Dw1. Two other witnesses were also examined on her side. Exts.B1 to B3 and X1 were marked. On 21.6.2004 petitioner filed Ext.P1 petition seeking an order to send Exts.A1 to A8 cheques to the forensic expert to ascertain the old-age of the writings in the cheques. It was alleged in the affidavit that the respondents shaped their case at the time of giving evidence and the evidence was adduced to the effect that Exts.A1 to A8 were written by the husband of the petitioner and signed by the petitioner in the year 2001in the presence Pws.1 to 3 and that WP(C).No.28287 of 2004-P. -: 3 :- if the age of the writings of the cheques is ascertained, it could be established that the case set up by the respondents is false and vexatious. 4. Respondent resisted the petition by stating that the main plea of the petition is one of discharge and that the petition was filed with an intention to protract the proceedings and prayed for dismissal of the suit. 5. The learned Sub Judge by Ext.P2 order dated 2.9.2004 dismissed Ext.P1 . The relevant portion of Ext.P2 in para.8 reads as follows: “[T]he averments in the affidavit that the plaintiffs coined their case only at the time of evidence and hence the petitioner was disabled from filing the present petition before the commencement of trial does not strike as reliable or convincing. The case was listed for evidence on 6.2.2004 and the defendant was examined on 25.2.2004 and thereafter the present petition has been filed. The explanation for the delay in filing the petition is absolutely unsatisfactory. The petition is highly belated and the contention by the learned counsel for the respondent that the petition has been filed only to protract the proceedings cannot be dismissed as unfounded. The conclusion follows that being highly belated and opposed to the contention of the written statement the present petition to WP(C).No.28287 of 2004-P. -: 4 :- send the cheques in question to ascertain the age of the writings on them by the Forensic Expert is not allowable at the fag end of the trial.” 6. 12 days thereafter, Ext.P3 petition was filed with a plea to reopen the case for evidence and to order summons to the witnesses. It was with a plea that the witness schedule was filed on 20.1.2004 and steps were taken on 27.3.2004. But the steps were returned unserved and again steps were taken on 24.6.2004 and in response to the summons, witnesses were present but documents called for could not have been brought. Hence the case was adjourned to 21.6.2004 for production of the documents and on that day the summons were not returned. Then the case was again posted for return of summons to 28.6.2004 and that those facts were not brought to the notice of the court while Ext.P2 order was passed and it was highly necessary to reopen the case and to take evidence from the witnesses. 7. Ext.P3 petition was dismissed by Ext.P4 order dated 15.9.2004. Ext.P4 reads as follows: “Heard. Highly belated. Dismissed.” Now the legality and correctness of Exts.P2 and P4 are assailed by this petition under Article 227 of the Constitution of India. WP(C).No.28287 of 2004-P. -: 5 :- 8. Both petitioner and respondents were heard. It is the very consistent case of the petitioner that the respondents shaped their case at the time of giving evidence and the evidence was adduced to the effect that Exts.A1 to A8 were written by the husband of the petitioner and signed by the petitioner in the year 2001 in the presence of Pws.1 to 3. Curiously, neither the pleadings nor the evidence on record was produced along with the writ petition. So, it has become rather difficult to have a correct appraisal of the facts and to conclude whether the plea that the respondents had shaped their case at the time of evidence is correct or not. However, having heard either side, it didn't appear that there was no much shaping of the case at the time of evidence. It was specifically contended by the respondents that those cheques were issued in the year 2001. It is true that there is no plea that as to who wrote the disputed cheques. It is not disputed that such minute aspects need not be pleaded. So the plea that the delay in filing the petition is because of the shaping of the case at the time of evidence is not at all correct and lacks bonafides. However, since the petitioner herself was examined long before the filing of Exts.P1 and P3, at my request, the learned counsel for the petitioner read out the evidence of WP(C).No.28287 of 2004-P. -: 6 :- the petitioner who was examined as DW1. It is pertinent to note that the petitioner didn't care to deny the evidence of Pws.1 to 3 to the effect that Exts.A1 to A8 were issued in the year 2001 and that those were written by the husband of the petitioner. Such being the nature of the evidence of the petitioner, the request of the petitioner to forward the cheques to the Forensic Science Laboratory to call for a report regarding the old-age of Exts.A1 to A8 are not at all warranted. Adding to that the learned counsel for the petitioner is not able to say whether technologies are available in the Forensic Science Laboratory to ascertain the old-age of the writings in a cheque. According to the learned counsel, let the cheques be sent to the Forensic Science Laboratory and let them report whether technologies are available to report the exact old-age of the writings or not. I am afraid to appreciate the arguments. The procedures are not at all intended to test the chances. Even if it is assumed that the Forensic Science Laboratory could report the old-age of the writings that would only be an opinion evidence and it cannot be given precedence over the oral evidence. 9. In Ext.P3 petition, the prayer is to reopen the case for evidence and summons to the witness was sought for. According to the learned WP(C).No.28287 of 2004-P. -: 7 :- counsel for the petitioner, the purpose of the further evidence is to establish that the cheques were issued in 1994 as contended by the petitioner. Curiously, the petitioner didn't care to produce a list of witness or the list of documents so as to ascertain what is the scope of the further evidence sought for. However, the learned counsel submitted that the documents sought to be produced by the witnesses and the purpose of the examination of the witnesses is to establish that Exts.A1 to A8 cheques were issued in the year 1994. The same purpose as in Ext.P1. According to the learned counsel, the cheque issue register and connected records, if any, would establish the case of the petitioner. For that reason, I find that it is not at all necessary to call for the records from the bank. The petitioner could have either obtained a copy or extract of the said documents from the bank and produced. It is pertinent to note that there is no case that copies wouldn't serve the purpose and originals are required. If those cheques were issued from the bank in the year 1994, issuance of the next serial number of the cheques and the encashment of the same could have been revealed from the pass book maintained by the petitioner. The petitioner didn't show any reason for the non-production of the pass book which would be normally in WP(C).No.28287 of 2004-P. -: 8 :- her possession. 10. Since it was specifically averred in the plaint that the cheques were issued in the year 2001, if the petitioner had got a case that those cheques were issued in the year 1994 and was so earnest and in case the pass book which would have contained all these particulars were not in the possession of the petitioner, she should have earlier applied for the production of the documents from the bank or produced the copies after obtaining it. As I mentioned earlier, the suit was posted for trial in the list on 6.2.2004. The issues might have been framed long back. The petitioner had not shown any reason for waiting till the evidence of the respondents were over and after examining the petitioner herself. In the above circumstance, I fail to find that Exts.P2 and P4 orders were any way erroneous. 11. As mentioned earlier, the petitioner had not cared to produce a copy of the plaint, written statement or the evidences so far recorded or the copy of the list of documents and the purpose for which it was brought in. Since those documents were not produced, it has become rather difficult to appreciate the back ground. By going through Exts.P1 and P3 petitions and WP(C).No.28287 of 2004-P. -: 9 :- Exts.P2 and P4 orders thereon, prima facie, those orders didn't appear to be erroneous or perverse. On the other hand good reasoning is given to justify the orders. The petitioner has got other two defences, namely material alteration and discharge. I find little material to interfere with Ext.P2 and P4 orders in exercise of the powers conferred on this Court under Article 227 of the Constitution of India. The writ petition is devoid of merit. Accordingly it is dismissed. No costs. P.S.GOPINATHAN, JUDGE. Kvs/-