Asha Mathew v. Shani John and Sharon M. Shani

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 16[TH] DAY OF MARCH 2023 / 25TH PHALGUNA, 1944 ``` ``` OP(C) NO. 623 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT IN OS 317/2018 OF MUNSIFF COURT, ``` ## **`CHANGANACHERRY`** ## **`PETITIONER/PETITIONER/PLAINTIFF:`** ``` ASHA MATHEW AGED 41 YEARS W/O. SOJI JOHN, MUKKATTUKUNNEL HOUSE, PERUMPANACHY P.O, MADAPPALLY KARA, MADAPPALLY VILLAGE, KOTTAYAM DISTRICT., PIN - 686536 ``` ``` BY ADVS. M.P.MADHAVANKUTTY MATHEW DEVASSI ANANTHAKRISHNAN A. KARTHA REMYA M. MENON ANOOP SATHYAN ``` ## **`RESPONDENTS/COUNTER PETITIONERS 3 AND 4/DEFENDANTS 3 AND 4:`** - **`1 SHANI JOHN S/O. ROSAMMA JOHN, MUKKATTUKUNNEL HOUSE, PERUMPANACHY P.O, MADAPPALLY KARA, MADAPPALLY VILLAGE, KOTTAYAM DISTRICT., PIN - 686536`** - **`2 SHARON M. SHANI S/O. SHANI, MUKKATTUKUNNEL HOUSE, PERUMPANACHY P.O, MADAPPALLY KARA, MADAPPALLY VILLAGE, KOTTAYAM DISTRICT., PIN - 686536 BY ADV T.V.GEORGE`** ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 623 OF 2023 ``` ``` 2 ``` ## **J U D G M E N T** Aggrieved by Exts. P7 and P8 orders passed in I.A. Nos. 5/2023 and 6/2023 in O.S. No. 317/2018 by the Court of the Munsiff, Changanacherry, the plaintiff has filed the original petition. The respondents are the defendant Nos. 3 and 4 in the suit. 2. The concise case of the petitioner, leading to Exts. P7 and P8 orders, is: (i) The petitioner is the wife of late Soji John (deceased). The original defendant Nos. 1 and 2 are the mother and brother of the deceased. The respondents 3 and 4 are another brother and nephew of the deceased. (ii) The petitioner has filed the suit to declare the alleged will executed by the deceased to be void. The suit is resisted by the defendants through Ext.P2 written statement. Pending the suit, the original defendant Nos. 1 and 2 died and the respondents have been impleaded as additional defendant Nos. 3 and 4. (iii) The parties went to trial. The petitioner and four ``` OP(C) NO. 623 OF 2023 ``` ``` 3 ``` other witnesses were examined as PWs. 1 to 5. The respondents examined DWs.1 and 2- the attestor and scribe to the will. (iv) The petitioner confronted PWs. 1 and 2 with their conversation, recorded on a mobile phone and a pen drive, but they bluntly denied the same. (v) Immediately, the petitioner filed I.A. No. 5/2023 (Ext.P3), under Section 151 of the Code of Civil Procedure (in short, ‘Code’), to reopen the evidence and I.A. No. 6/2023 (Ext.P5) to examine a new witness. The applications were resisted by the respondents through Exts.P4 and P6 counter statements. (vi) The court below, by the impugned Exts.P7 and P8 orders, dismissed Exts.P3 and P5 applications. (vii) Ext.P7 and P8 orders are manifestly wrong and erroneous. Hence, the original petition. 3. Heard; Sri. M.P. Madhavankutty, the learned counsel appearing for the petitioner and Sri. T.V. George, the learned counsel appearing for the respondents. 4. The short point is, is there any error in Exts. P7 ``` OP(C) NO. 623 OF 2023 ``` ``` 4 ``` and P8 orders. 5. On an appreciation of the pleadings and materials on record, it is revealed that the trial is completed and the suit stands posted for final hearing. 6. It is at this juncture, that the petitioner filed Ext.P3, invoking the inherent power of the court below under Section 151 of the Code, to recall and re-examine herself. She also filed Ext.P5 application, to examine a taxi driver, who had allegedly taken the deceased to the Sub Registry Office to execute the will. The applications were resisted by the respondents through Exts. P4 and P6 counter statements. 7. The court below, after analyzing the rival pleadings and the law laid down in **Ram Rati vs Mange Ram & Ors** (2016 (11) SCC 296), has held that the petitioner has no right to invoke the inherent power of the Court, to recall and re-examine herself and summon a new witness, to fill up the lacuna. 8. The Hon’ble Supreme Court in **Ram Rati’s case** (supra) after referring to its earlier decisions in **K.K.** ``` OP(C) NO. 623 OF 2023 ``` ``` 5 ``` **Velusamy v. N. Palanisamy (2011 (11) SCC 275)** and **Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate (2009 (4) SCC 410)** has held that when there is a specific substantive provision prohibiting a person from doing an act, then the inherent power of the court cannot be invoked. Further, the power under Order XVIII Rule 17 of the Code cannot be stretched to fill up omissions in the evidence already let in by a witness, even if no prejudice is caused to the opposite side. Nonetheless, the discretionary power can be exercised by the court. 9. In the instant case, the petitioner was examined as PW1. Indisputably, the petitioner knew about the conversation before her examination. Yet, she did not choose to produce the mobile phone and pen drive, and get them marked through herself. It is after the examination of DWs. 1 and 2 and they denying the conversation, the petitioner has chosen to file Ext.P3 application, to reopen and re-examine her evidence, for the purpose of marking the phone and pen drive. The said act is undoubtedly an attempt to fill in the lacuna, which cannot be permitted. ``` OP(C) NO. 623 OF 2023 ``` ``` 6 ``` Therefore, I hold that the court below was justified in rejecting Ext.P3 application through Ext.P7 order. 10. Now, coming to the examination of an additional witness- the taxi driver who had allegedly taken the deceased to the Sub-Registry Office to register the will. 11. The petitioner’s case is that she desires to examine the taxi driver as a witness, to prove the mental condition of the deceased at the time of execution of the will. 12. A reading of Ext.P5 application does not inspire confidence in this Court, because it is hard to believe that a random taxi driver, operating from a hospital, would vividly remember the mental state of a passenger who travelled in the taxi more than five years back. Even more curious is the fact that the petitioner coincidentally came across the taxi driver, after her cross examination, and he volunteered to go and give evidence in court, to establish that the deceased was not in a proper frame of mind to execute the will. The said endeavor is also nothing but an attempt to fill in the lacuna in the petitioner’s evidence. Therefore, I am ``` OP(C) NO. 623 OF 2023 ``` ``` 7 ``` not inclined to exercise the discretionary powers of this Court under Order XVIII Rule 17 of the Code, to permit the above said witnesses to be examined. 13. On an overall consideration of the pleadings and materials on record and findings rendered above, I confirm and endorse Exts.P7 and P8 orders, which does not warrant interference by this Court under Article 227 of the Constitution of India. 14. It is trite; the exercise of the power of superintendence of this Court under Article 227 of the Constitution of India is not to sit in appeal over the orders passed by the courts of the District Judicature. Resultantly, the original petition is dismissed as merit less. **Sd/-** **C.S.DIAS, JUDGE** LU ``` OP(C) NO. 623 OF 2023 ``` ``` 8 ``` ## **`APPENDIX OF OP(C) 623/2023`** ## **`PETITIONER EXHIBITS :`** ``` EXHIBIT P1A TRUE COPY OF THE PLAINT IN O.S NO. 317/2018 BEFORE THE MUNSIFF'S COURT, CHANGANACHERRY ``` ``` EXHIBIT P2A TRUE COPY OF THE WRITTEN STATEMENT O.S NO. 317/2018 BEFORE THE MUNSIFF'S COURT, CHANGANACHERRY ``` - **`EXHIBIT P3 A TRUE COPY OF THE PETITION BEARING I.A NO. 5/2023 IN O.S NO. 317/2018 BEFORE THE MUNSIFF'S COURT, CHANGANACHERRY`** - **`EXHIBIT P4 A TRUE COPY OF THE OBJECTION IN I.A NO. 5/2023 IN O.S NO. 317/2018 BEFORE THE MUNSIFF'S COURT, CHANGANACHERRY`** - **`EXHIBIT P5 A TRUE COPY OF THE PETITION BEARING I.A NO. 6/2023 IN O.S NO. 317/2018 BEFORE THE MUNSIFF'S COURT, CHANGANACHERRY`** - **`EXHIBIT P6 A TRUE COPY OF THE OBJECTION FILED BY THE DEFENDANTS TO THE ABOVE PETITION BEARING I.A NO. 6/2023 IN O.S NO. 317/2018 BEFORE THE MUNSIFF'S COURT, CHANGANACHERRY`** - **`EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 06.03.2023 IN I.A NO. 5/2023 IN O.S NO. 317/2018 BEFORE THE MUNSIFF'S COURT, CHANGANACHERRY`** ``` EXHIBIT P8A TRUE COPY OF THE ORDER DATED 06.03.2023 IN I.A NO. 6/2023 IN O.S NO. 317/2018 BEFORE THE MUNSIFF'S COURT, CHANGANACHERRY ``` ## **`// True Copy // PA To Judge`**