IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 OP(C).No. 474 of 2010(O) ----------------------------------- [ORDER DATED 21/10/2010 IN I.A. NO.2885/2010 AND ORDER DATED 21/10/2010 IN I.A. NO. 2873/10 IN O.S. NO. 90/2009 OF THE MUNSIFF COURT, MUVATTUPUZHA] ............. PETITIONER: ------------------- P.M.SAJU, S/O.P.P.MATHAI, PALATHINKAL HOUSE, RAMANGALAM KARA, MARADY VILLAGE, MUVATTUPUZHA-686 661. BY ADV. SRI.C.DILIP. RESPONDENT: ---------------------- MOLY P.M., W/O.ALIAS, VALAMATTATHIL HOUSE, KAKKAD KARA, PIRAVOM VILLAGE, MUVATTUPUZHA-686 664. BY ADV. SRI.M.PAUL VARGHESE. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.474/2010-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT DTD. 24/02/2009 IN O.S. NO.90/2009 ON THE FILE OF MUNSIFF COURT, MUVATTUPUZHA. EXT.P.2: COPY OF THE WRITTEN STATEMENT DTD. 21/05/2009 FILED BY THE DEFENDANT IN O.S. NO. 90/2009 OF THE MUNSIFF COURT, MUVATTUPUZHA. EXT.P.3: COPY OF THE I.A. NO. 2885/2010 DTD. 18/10/2010 FILED BY THE PETITIONER IN 90/2009 ON THE FILE OF THE MUNSIFF COURT, MUVATTUPUZHA. EXT.P.4: COPY OF THE I.A. NO. 2873/2010 FILED BY THE PETITIONER TO ACCEPT THE WITNESS LIST IN O.S. NO. 90/2009 ON THE FILE OF MUNSIFF COURT, MUVATTUPUZHA. EXT.P.5: COPY OF THE ORDER DTD. 21/10/2010 IN I.A. NO. 2885/2010 IN O.S. NO. 90/2009 ON THE FILE OF MUNSIFF COURT, MUVATTUPUZHA. EXT.P.6: COPY OF THE ORDER DTD. 21/10/2010 IN I.A. NO. 2873/10 IN O.S. NO. 90/2009 ON THE FILE OF MUNSIFF COURT, MUVATTUPUZHA. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. K.T.SANKARAN, J. ------------------------------ O.P(C)No.474 OF 2010 ------------------------------ Dated this the 7th day of June, 2011 JUDGMENT The petitioner is the defendant in O.S.No.90 of 2009 on the file of the Court of the Munsiff of Muvattpuzha. The suit was filed by the respondent for cancellation of documents. The suit was listed for trial and PW1 was examined in court. For examination of other witnesses, a Commissioner was appointed. At that time, the petitioner/defendant did not file any witness list. The Commissioner examined four witnesses on 30.9.2010. Out of four witnesses, two witnesses by name Mariamma Joy and Jayaprakash were not cross-examined by the counsel appearing for the defendant. The Commissioner filed the report. Thereafter, the defendant filed application for permission to cross examine the aforesaid two witnesses. The court below, by Ext.P5 order dated 21st October, 2010 allowed the application (IA No.2885 of 2010) on condition O.P(C)No.474 OF 2010 2 of payment of costs of Rs.5,000/-. The court directed that Rs.2,000/- shall be paid to the plaintiff, Rs.2,000/- shall be deposited in court and Rs.1,000/- shall be paid to the Commissioner as batta. The defendant challenges the order in I.A.No.2885 of 2010 to the extent to which it imposes costs. 2. In the facts and circumstances of the case, the order in I.A.No.2885 of 2010 is modified and the I.A. is allowed on payment of costs of Rs.3,000/- out of which Rs.2,000/- shall be paid to the plaintiff and Rs.1,000/- shall be paid to the Commissioner as additional batta. 3. The defendant also filed I.A.No.2873 of 2010 for receiving the witness list. The court below dismissed that application by Ext.P6 order dated 21st October, 2010. It is true that there is delay on the part of the defendant. He did not file the witness list before the Commissioner was appointed to record evidence of the witnesses. He filed the witness list only after the witnesses on the side of the plaintiff were examined. At this stage, if the witnesses on the side of the defendant are examined, it would cause O.P(C)No.474 OF 2010 3 great inconvenience to the plaintiff, apart from the delay that would be caused. At the same time, I am of the view that the evidence of the defendant need not be shut out thereby depriving the parties to have a fair fight in the case. However, the plaintiff must be compensated in terms of costs . Accordingly, I.A.No.2873 of 2010 is allowed on condition that the petitioner shall pay Rs.2,000/- as costs to the plaintiff. The defendant shall also pay additional Commissioner's batta that may be fixed by the trial court before examination of the witnesses on the side of the defendant. The costs shall be paid on or before 30.6.2011. The Commissioner shall expedite the examination of the witnesses. The Original Petition is disposed of as above. K.T.SANKARAN, JUDGE. cms