Dr. Yakob Martin Kocherie & others v. Dr. Lisa Babu Joseph

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.M.JOSEPH** **& THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 26TH DAY OF FEBRUARY 2013/7TH PHALGUNA 1934** ## **OP (FC).No. 3397 of 2012 (R)** **----------------------------OP.1414/2010 , OP 1413/2010 AND OP 1125/2011 OF FAMILY COURT, KOTTAYAM, ETTUMANOOR** **-------------------** ## **PETITIONER(S) :** **--------------------------** **1. DR.YAKOB MARTIN KOCHERIE, AGED 33 S/O.MARTIN OBIE KOCHERIE, RESIDING AT KOCHERY HOUSE PARAKULAM ROAD, IRINGALAKUDA.P.O, MUKUNDAPURAM TALUK THRISSUR DISTRICT-680121.** **REP. BY POWER OF ATTORNEY HOLDER MARTIN OBIE KOCHERIE.** **2. MARTIN OBIE KOCHERIE, AGED 70, S/O.LATE K.A.JACOB, RESIDING AT KOCHERY HOUSE PARAKULAM ROAD, IRINGALAKUDA.P.O, MUKUNDAPURAM TALUK THRISSUR DISTRICT-680121.** **3. MARY MARTIN, AGED 55 , W/O.MARTIN OBIE KOCHERIE, RESIDING AT KOCHERY HOUSE PARAKULAM ROAD, IRINGALAKUDA.P.O, MUKUNDAPURAM TALUK THRISSUR DISTRICT-680121.** **BY ADVS.SRI.VARGHESE C. KURIAKOSE SRI.PRAVEEN K. JOY SRI.G.MANU KRISHNAN SRI.N.SREEJITH (MAKALIYAM)** **RESPONDENT :** **-----------------------** **DR.LISA BABU JOSEPH, AGED 32, D/O.BABU JOSEPH IRS RESIDING AT KIZHAKKETHOTTIYIL HOUSE, VATTAKULAM.P.O KADAPPOR KARA, KANAKKARY VILLAGE, MEENACHIL TALUK KOTTAYAM DISTRICT-686596.** **BY ADV. SRI. SIBY CHENAPPADY** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 22-02-2013, THE COURT ON 26-02-2013 DELIVERED THE FOLLOWING:** **Mn** **...2/-** **OP (FC).No. 3397 of 2012 (R)** ## **APPENDIX** ## **PETITIONERS' EXHIBITS :** |**EXT-P1**|**TRUE PHOTOSTAT COPY OF THE OP.1413/2010 ON THE FILES OF FAMILY**| |---|---| ||**COURT, KOTTAYAM AT ETTUMANOOR BY THE RESPONDENT SEEKING**| ||**DISSOLUTION OF MARRIAGE.**| |**EXT-P2**|**TRUE PHOTOSTAT COPY OF the OBJECTIONS FILED BY THE IST**| ||**PETITIONER IN OP.1413/2010**| |**EXT-P3**|**TRUE PHOTOSTAT COPY OF O.P.1414/2010 FILED BY THE RESPONDENT**| ||**SEEKING RETURN OF AMOUNTS,GOLD ORNAMENTS ETC.**| |**EXT-P4**|**TRUE PHOTOSTAT COPY OF OBJECTIONS IN O.P.1414/2010**| |**EXT-P5**|**TRUE PHOTOSTAT COPY OF THE LIST OF LIST OF WITNESSES FILED BY**| ||**THE RESPONDENT IN COURT.**| |**EXT-P6**|**TRUE PHOTOSTAT COPY OF THE PROOF AFFIDAVIT IN O.P.1413/2010 ON**| ||**THE FILES OF FAMILY COURT, KOTTAYAM AT ETTUMANOOR.**| |**EXT-P7**|**TRUE PHOTOSTAT COPY OF THE I.A.NO.1242/2012**| |**EXT-P8**|**TRUE PHOTOSTAT COPY OF THE ORDER IN I.A.1242/2012 , I.A.1413/2012**| ||**IN OP.1414/2010 DATED 19.09.2012.**| **RESPONDENTS' EXHIBITS : NIL** **//TRUE COPY//** **P.S. TO JUDGE** ## **Mn** ## K.M.JOSEPH & K.HARILAL, JJ ------------------------------------------------- O.P.(FC) No.3397 of 2012 -------------------------------------------------Dated this the 26[th] day of February , 2013 **==> picture [100 x 14] intentionally omitted <==** ## K.Harilal, J The 1[st] petitioner herein is the sole respondent in Ext.P2 O.P.No.1413/2010, as well as 1[st] respondent in Ext.P3 O.P.No.1414/2010, on the files of the Family Court, Ettumanoor, filed by the respondent herein. They are husband and wife respectively. Ext.P2 original petition is filed, seeking dissolution of marriage by a decree of divorce on the ground of cruelty under Section 10(1)(x) of the Divorce Act, 1869 and Ext.P3 is filed, seeking return of money and gold ornaments etc. Along with these two proceedings, O.P.No.1125/2011 which was filed by the petitioner herein seeking custody of the minor child has also been clubbed by the Family Court, for convenience of the trial. 2. The allegations in the above original petitions and contentions in the counter affidavits are matters which do not require consideration for the proper disposal of the impugned orders under challenge in this writ petition. Therefore, we are not embarking upon an enquiry into those details. 3. After completion of pleadings, an Advocate by name Smt.Lalitha Devi was appointed as Commissioner for recording of Opfc 3397/2012 2 evidence by examination of the witnesses as provided under Order 18 Rule 4 read with Rules 4A and 19 of Order XXVI of the C.P.C. The respondent herein who has filed two original petitions filed an affidavit in lieu of chief examination, 27 documents have been marked and thereafter started cross examination. From the commencement of cross examination, in order to answer any question, the respondent has taken minimum 5 to 6 minutes and when she started answering, each answer has also taken a lot of time. For three days by spending more than 10 hours, examination of PW1 proceeded in this fashion. The respondent had filed Ext.P5 list of witness enlisting 16 witnesses. Due to the manner in which respondent answered questions in cross examination, it continued as a never ending process. On 12.07.2012, the petitioners were constrained to stop cross examination by intimating that petitioners want to continue further examination in court. According to the petitioners, the conduct of the respondent was intentionally calculated to prolong the issue and drag the proceedings and also to cause prejudice to the petitioners who are coming from a distance more than 100 Kms. According to the petitioners, the Advocate Commissioner appointed to record evidence was not in a position to control the Opfc 3397/2012 3 witness. In this context, the petitioners have filed two applications before the Family Court. I.A.No.1242/2012 was filed to recall PW1 and permit further examination in court and I.A.1413/2012 was filed to permit examination of all remaining witnesses enlisted in Ext.P5 list of witnesses in court. 4. The applications were objected by the respondent. According to her, petitioners were asking unnecessary questions against the pleadings and consumed time more than 9½ hours. According to the respondent, during cross examination, she disclosed that 3[rd] petitioner used to take liquor and that caused enemity, which culminated in filing of the above applications. After hearing the parties, the Family Court dismissed the applications by Ext.P8 order. Aggrieved by the impugned order, this original petition is filed on various grounds. 5. We heard, Shri. Varghese Kuriakose, the counsel for the petitioners and also the counsel for the respondent. 6. The counsel for the petitioners contended that the Family Court failed to exercise jurisdiction vested in it properly and correctly. The court below has relied on the statement of the Advocate Commissioner alone as seen in para 7 of the impugned order. The Advocate Commissioner had made imputations against Opfc 3397/2012 4 counsel for the petitioners stating that the counsel was not ready with brief and his questions were related to extraneous matters only. Thus the Commissioner was trying to blame the counsel to justify her stand. The Commissioner did not record the demeanor of the witness, despite the request for the same. In such circumstances, the only option was to seek examination in court. The power of the court and power of the Commissioner are totally different. 7. The counsel further contended that the Commissioner appointed under Order 18 Rule (4)(2) is not vested with the same powers as that of the Commissioner appointed under Order 26 Rule 1. The powers of the Commissioners appointed under Order 18 Rule 4(2) and Order 26 Rule 1 are distinctive and different. Order 26 Rule 16 has to be read in connection with Order 26 Rule 1 only and such powers are not available to the Commissioner appointed for recording of evidence under Order 18 Rule 4. Under the said provision, the purpose of appointing a Commissioner is shown as 'recording of evidence only'. 8. Per contra, the learned counsel for the respondent argued that the examination of PW1 was dragged on for three days, spending more than ten hours on the sole reason that the counsel Opfc 3397/2012 5 for the petitioners herein was asking questions unnecessarily and extraneous to the matter in issue, abusing the privilege of cross examination. According to him, infact, examination was closed after asking all questions, which the counsel intended or desired to be asked at that time and present application is the result of a second thought with ulterior motive and the petitioner has no right to recall PW1 without sufficient reason as provided under law. 9. First of all, we shall deal with I.A.1242/12, wherein the petitioner has sought for an opportunity to recall the witness and examine again. The reason stated in the accompanying affidavit is that though the counsel examined PW1 for three days, the counsel could not ask all questions which were intended to be asked due to the lengthy answers of PW1, and the counsel was constrained to close the examination. Now he wants to examine PW1, again in court. Let us examine the Law on this point. Order XVIII Rule 17 reads as follows: “17. Court may recall and examine witness:- the Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.” Opfc 3397/2012 6 10. The right to recall and examine the witness again as provided under Order XVIII Rule 17 of the Code of Civil Procedure is a right which can be sparingly exercised by the court in appropriate cases only. That privilege is granted to the court to put such questions as the court thinks fit, to the witness who has already been examined, to clarify any doubt with regard to the evidence already let in by the parties. In the decision in **Vadiraj** **Naggappa Vernekar (Dead) through LRS v. Sharadchandra Prabhakar Gogate [2009(4)SCC 410]** , the Supreme Court held “ that the provision of Order XVIII Rule 17 of C.P.C. having been interpreted to include application to be filed by the parties for recalling the witness and the main purpose of the rule is to enable the court while trying the suit to clarify any doubt which may have with regard to the evidence led by the parties”. Thus it is now well settled that the power to recall any witness under Order XVIII Rule 17 CPC can be exercised by the court either on its own motion or on an application filed by the parties to the suit. In the above decision Supreme Court held as follows: “Some of the principles akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within the court's discretion, if it deems fit, to allow such an application”. Opfc 3397/2012 7 11. After closing of examination of the witness, the counsel may feel that some questions which he knowingly or unknowingly omitted to ask on a point also could have been asked. But Order XVIII Rule 17 is not intended to be used as to fill up such omissions whether knowingly or unknowingly made or gaps or some lacunae in the evidence of a witness who has already been examined. In short, the cross examination of the witness cannot be a never ending process in accordance with the desire or satisfaction of parties or his counsel and the opportunity provided under Order XVIII Rule 17 can never be invoked to plug the holes in the evidence given by the witness who has been examined earlier. 12. The petitioners have no case in the affidavit that certain new facts have been discovered subsequently, which were not within the knowledge of the petitioner, when PW1 was cross examined, or there is some ambiguity in the evidence which requires a further clarification. It is obvious that only after cross examination of the witness, certain omissions in cross examination have come to notice and that prompted the petitioner to file the application to recall PW1. So, the petition to recall witness for further cross examination is one without any Opfc 3397/2012 8 valid reason or bonafides. 13. We have gone through entire deposition containing in 66 pages. Since, the matter is still pending for trial, we do not intend to make any observation, which may cause prejudice. It could be seen that the cross examination was effected comfortably and concluded after asking final suggestive question, which a cross examiner would usually ask at the end so as to set up defence case and thereafter the witness was re-examined by the respondent's counsel. Going by the questions put to PW1, particularly the trend of examination and conclusion thereon, we feel that the averment in the affidavit that, the counsel was constrained to stop the examination abruptly is unfounded and stands incompatible with deposition on record and liable to be rejected at the threshold. 14. It is also averred in this writ petition that the commissioner has not recorded the demeanor of the witness even though requested for the same. But we notice that in Ext.P7 affidavit accompanying the petition, the petitioners undoubtedly stated that they have no doubt regarding the honesty, integrity and dedication of the commissioner. Thus the case put forward is mutually opposed, destructive and devoid of bona fides. We are Opfc 3397/2012 9 not satisfied with the reason stated for recalling the witness again to examine in court. We confirm the impugned order passed in I.A.No 1242/2012. 15. Is the right to cross examine the witness who mounted the witness box an unbridled or unfettered privilege granted to the adverse party against whom the witness has been called to give evidence? Can the adverse party ask any question as he likes during the course of cross examination? No doubt cross examination is a sharp and powerful weapon by which the adverse party can cull out truth and segregate it from falsehood perceiving through the evidence given by the witness who has already been examined in chief. Omission to cross examine the statement of a witness given in chief examination amounts to an acceptance of that statement which was left omitted. Certainly, the adverse party has a right to cross examine all statements which were given in chief examination. A fact can be proved either by the examination of the witness or by cross examination of the witness called by other party. So, the adverse party has a right to go beyond the statement given in chief examination so as to elicit evidence for his case subject to the limit which is well delineated and demarcated under Chapter II, Chapter IX and X of Opfc 3397/2012 10 the Indian Evidence Act, 1872. 16. According to Section 5 of the Indian Evidence Act, evidence may be given in any suit or proceedings of the existence or non-existence of every “fact in issue” and “relevant fact” and no other evidence is admissible or permissible. Therefore, oral evidence by examination of witness must also be confined to fact in issue and relevant fact only. Broadly speaking, this is the outer boundary within which the cross examination of the witnesses must be confined subject to certain exceptions, restrictions and regulations provided under Chapter IX and X of the Evidence Act. In short, the questions put in cross examination must be lawful, reasonable and relevant. Indecent and scandalous questions intended to insult or annoy the witness in witness box or the parties are forbidden. In short, this privilege can never be allowed to be used as an opportunity to harass the witness in box or the party who called him. The witness also deserves and commands respect. More importantly, it is for the court to control and decide the admissibility of such questions put in examination in chief and cross. Thus the right of cross examination is neither an unbridled nor unfettered privilege granted to the adverse party. We are constrained to remind the limit of cross examination, in Opfc 3397/2012 11 view of the “marathon cross examination” as described by the petitioners themselves. 17. Coming to the question whether the advocate commissioner appointed under Order XVIII Rule 4(2) is not having the same power as that of the commissioner appointed under Order 26 Rule 1, we are of the opinion that this question can be answered negatively. What is provided under Order XXVI Rules 1,4 and Rule 16? Rule 1 states cases in which court can issue commission to examine witnesses and Rule 4 states persons for whose examination commission can be appointed. Rule 16 specifies the powers of the Commissioners. But Order XVIII Rule 4 provides the method of recording evidence of a commissioner appointed under Order XXVI, Rule 1. In other words, Order XVIII Rule 4 regulates the process of recording evidence. 18. Coming to Order XXVI, Rule 1 it could be seen that before the insertion of Rule 4-A under Order XXVI, the appointment of a commissioner for the examination on interrogatories or otherwise of any person resident within the local limits of jurisdiction was limited to person who is exempted from attending the court and who is unable to attend the court due to sickness and infirmity. But by the insertion of 4-A under Order Opfc 3397/2012 12 XXVI, it is provided that notwithstanding anything contained in these Rules under Order XXVI, any court may in the interest of justice or for the expeditious disposal of the case or for any other reason, issue commission in a suit for the examination on interrogatories or otherwise, of any person resident within the local limits of its jurisdiction and the evidence so recorded shall be read in evidence. Thus the scope of examination of any person resident within the local limits of jurisdiction of the court is seen enhanced so as to make it applicable in all cases notwithstanding the place of residence. 19. Similarly before the amendment by substitution with effect from 1/7/2012 of Rule 4 of Order XVIII, the evidence of witness should have been taken orally in open court in the presence under personal direction and superintendence of the Judge. But pursuant to the above-said amendment, the examination in chief of the witness shall be on affidavit and the cross examination and examination in re of such witness in attendance and whose examination in chief, has been effected by furnishing affidavit, shall be taken either by the court or by the commissioner appointed by it. This procedure of recording evidence which was exclusively within the court is given to a Opfc 3397/2012 13 commissioner appointed by the court also. That apart, Rule 19 was inserted under Order XVIII so as to direct the statement of the witness to be recorded on commission under Rule 4-A of Order XXVI, instead of examining the witness in open court. Thus necessary amendments were made harmoniously and suitably under Order XXVI and Order XVIII by substituting Rule 4-A under Order XXVI and inserting Rule 4(2) and Rule 19 under Order XVIII. 20. Coming to the powers of the Commissioner appointed under Order XVIII, Rule 4, it could be seen that the powers provided to the commission under Order XXVI Rule 1 read with Rule 4-A is given to the commissioner appointed under Order XVIII Rule 4(2) also by sub Rule 8. Sub-Rule 8 of Rule 4 of Order XVIII reads as follows: (8)The provision of Rules 16, 16A, 17 and 18 of Order XXVI, in so far as they are applicable, shall apply to the issue, execution and return of such commissions under this rule. 21. In view of the aforesaid analysis, it could be seen that the powers provided to the commissioner appointed under Order XXVI Rule 1 is given to the commissioner appointed under Order XVIII Rule 4(2) also subject to supervision and decisions of the court wherever it is necessary during the process of recording. Thus we are unable to accept the argument that the Opfc 3397/2012 14 commissioner appointed under Order XVIII Rule 4(2) is so powerless when compared with as that of a commissioner appointed under Order XXVI Rule 1. The commissioner appointed for recording of evidence gets power under both Order XVIII and Order XXVI and both these provisions must be read conjointly. 22. The Family Court is overburdened with heavy workload. The commissioner was appointed for recording evidence so as to get a speedy disposal but the petitioners miserably failed to understand the purpose for which the Commissioner has been appointed and there is no bonafides in the petition for discharging the Commissioner and examining the remaining witness in court itself. Therefore, we reject the above-said contention that commissioner appointed under Order XVIII Rule 4(2) is powerless than commissioner appointed under Order XXVI Rule 1. We find no reason for examining all the remaining witnesses in court after dispensing with their examination by the commissioner. Hence we confirm the impugned order dismissing I.A.No.1413/2012 also. 23. Thus the learned Judge has considered the applications in the correct, perspective and rightly dismissed both applications and we also uphold the same. 24. But admittedly this is a hotly contested matter between Opfc 3397/2012 15 a husband and wife who are educationally forward and financially affluent. The learned Judge observed that their ego may be high and their attempt may be to cause maximum harassment to each other rather than resolving the real dispute. Considering the huge pendency, the court appointed a commission to record evidence so as to get a speedy disposal. We could not find any fault with the Commissioner and the Commissioner has undertaken a heavy task, and she has done it fairly, as per the direction of the court. 16 more witnesses remained to be examined from the part of the petitioner and more number of witnesses can be expected from the other side also. We feel that a lady Advocate having less than 15 years cannot be saddled with difficult situations which may be caused by the parties who are at logger heads. We sought the opinion of the counsel for the respondent about substitution of another senior Advocate of the Bar for recording further evidence. the learned counsel for the respondent fairly agreed for the same. 25. Therefore, we direct the learned Judge to relieve the present Commissioner and appoint a senior Advocate having more than 25 years professional experience as Commissioner in the place of present Commissioner. If the present Commissioner has been given full bata, the same shall not be refunded. Opfc 3397/2012 16 Petitioner and respondent shall bear the batta to be paid to the fresh Commissioner at the rate of 60% and 40% respectively. This judgment will not stand in the way of the Family Court considering I.A.No.2062/2012 and I.A.No.2063/2012 pending before the Family Court in accordance with law. This O.P.(F.C.) is disposed of accordingly. Sd/K.M.JOSEPH, JUDGE Sd/K.HARILAL, JUDGE sd/ks