High Court of KeralaSingle Judge2008-07-30Writ petition dismissed; Ext.P4 and Ext.P5 uphe...

Joseph and others v. Thankamma and others

Case / Petition Number:WP(C) No. 29172 of 2003 (W)

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: M. Sasidharan Nambiar
Judgment Date: 2008-07-30
Court Decision / Holding: Writ petition under Article 227 dismissed. Ext.P4 and Ext.P5 upheld; I.A.11264/2004 allowed; no illegality found in the orders; the petitioners’ challenge to the Munsiff’s rulings was rejected, and the case was not reopened.
Final Disposition: Writ petition dismissed; Ext.P4 and Ext.P5 upheld; I.A.11264/2004 allowed.

Parties to the Case

Appellants / Petitioners

JOSEPH, S/O. THOMAS, MURIKKAN KARAMAYIL, KATTAMPAKKU KARA, NJEEZHOOR VILLAGE.
C.T. GEORGE, S/O. THOMAS, DO. DO.
MATHEW, S/O. THOMAS, DO. DO.
SUNNY, S/O. THOMAS, MURIKKAN KARAMAYIL, PARAMBRAM KARA, MUTTUCHIRA VILLAGE.

Respondents

THANKAMMA, W/O. JACOB, MURIKKAN VEETTIL, ELIVALI KARA, ERUMELI SOUTH VILLAGE
M.J. JOSEPH, S/O. JACOB, DO. DO.
MATHEW JACOB, S/O. DO. DO.
MATHEW JACOB, S/O. DO. DO.
CLARAMMA, W/O. THOMAS, MURIKKAN KARAMAYIL, PARAMBRAM KARA, KUTTUCHIRA VILLAGE.
ELSAMMA, W/O. JOSEPH, KIZHAKKE THOTTAM VEETTIL, POONJAR VILLAGE AND KARA, MEENACHIL TALUK.
JACOB, S/O. THOMAS, KARAMAYIL, PARAMBARAM KARA, MUTTUCHIRA VILLAGE.
THANKAMMA, W/O. SEBASTIAN, VETTUKALLIL VEETTIL, BHARANANGANAM VILLAGE & KARA, MEENACHIL TALUK.
KUNJAMMA, NEELAKKATTUMATTATHIL KURIYANADU VILLAGE, DO. TALUK.
VALSAMMA, DO. DO.
ROSAMMA, MURIKKAN KARAMAYIL, PARAMBARAM KARA, MUTTUCHIRA VILLAGE.
JOSEPH, S/O. GEORGE, DO. DO.
TOMY, S/O. GEORGE, DO. DO.
JACOB, S/O. DO. DO.
MATHEW, S/O. DO. DO.
GEORGE, S/O. DO. DO.
BEENA, D/O. DO. DO.
PHILIP, S/O. DO. DO.
KUNJUMOL, D/O. DO. DO.
ALEKUTTY, DO. DO.
SEJI D/O. JACOB, KARAMAYIL, PARAMB RAM KARA, MUTTUCHIRA VILLAGE
RAJI, D/O. DO. DO.
TEENA, D/O. DO. DO.
(ADDL. R21 TO 23 IMPLEADED AS PER ORDER DT.30/7/2008 IN I.A.11264/04)
RESPONSE TO R1-R4: SIBY MATHEW
R11-R19: SRI.P.JACOB VARGHESE (SR.)
R11-R19: SMT.V.A.GANGUJA
R11-R19: SRIFRANCIS JOSEPH KURISINKAL
R11-R19: SRI.VIVEK VARGHESE P.J.
R1-R3: SIBY MATHEW

Legal Representation & Advocates

Counsels for Petitioners

• SRI.MATHEW JOHN (K)
• SRI.SUJESH MENON.V.B.

Counsels for Respondents

• SIBY MATHEW
• SRI.P.JACOB VARGHESE (SR.)
• SMT.V.A.GANGUJA
• SRIFRANCIS JOSEPH KURISINKAL
• SRI.VIVEK VARGHESE P.J.
• SIBY MATHEW

Case Synopsis & Summary

Petitioners, who were defendants in O.S.125/1995 on the file of the Munsiff Court, Vaikom, approached WP(C) No. 29172/2003 under Article 227 of the Constitution to quash Ext.P4 and Ext.P5 orders. Ext.P4 is an order dated 23.8.2003 passed in I.A. 790/2002, a review of the order that had closed the evidence and posted the case for arguments. Ext.P5, in I.A. 791/2002, sought to examine additional witnesses listed in the schedule. The petition notes that prior I.A. 688/2002 to mark copies of statements before the Taluk Land Board was dismissed, though it was observed that documents could be marked through proper procedure. After the examination of witnesses on the defendants’ side, the Sub Judge closed the evidence on 20.7.2002. Petitioners contend that the prayer to reopen was supported by necessity of witnesses and documents from the Taluk Land Board. They argue the prohibition on summoning the opposite party as a witness applies to the parties, not to summoning and examining any party to the suit. They contend that the Munsiff erred in excluding certain witnesses and in rejecting the request to summon Revenue officials under Rule 120 Civil Rules of Practice. The respondents counter that Ext.P4 and Ext.P5 were proper, and that the court should not interfere under Article 227. The High Court dismissed the writ petition, upholding Ext.P4 and Ext.P5 and finding no illegality.

Provisions of Law Cited

Article 227 of the Constitution of IndiaRule 1 of Order XLVII of the Code of Civil ProcedureRule 120 of the Civil Rules of PracticeCivil Procedure Code

Legal Doctrines & Maxims

Power of High Court under Article 227 of the Constitution of India (supervisory jurisdiction)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that the prohibition against summoning the opposite party as a witness applies only to the parties themselves, not to court-directed examination of any party to the suit. They sought to re-open the case by summoning witnesses listed in I.A.791/02, including witnesses from the Taluk Land Board, claiming such witnesses are necessary to prove their case. They asserted that documents filed by defendants 2, 3 and 10 before the Taluk Land Board should be admissible, and that proper procedure under law (I.A. 688/02) could allow marking of documents. They contended that certified copies of records could be produced if needed to support their assertions. They argued that if original Taluk Land Board records were required, Rule 120 of the Civil Rules of Practice should be satisfied and reasonable justification provided. Respondents: The respondents argued against reopening, noting that the Munsiff’s decision to exclude certain witnesses (including advocates) was proper since reasons were given, and that the prayer to summon witnesses and reopen the case did not warrant interference. They relied on the earlier order (Ext.P4) and the cited authorities, including the Jortin Antony decision, and urged that Ext.P4 and Ext.P5 were properly decided and not subject to Article 227 interference.

Contentions of Respondents

The respondents opposed reopening of evidence, asserting the Munsiff correctly dismissed the petitions to reopen and to summon the witnesses, including advocates. They cited that the reasons were stated for excluding certain witnesses, and relied on the Munsiff’s application of the law and precedent (including Jortin Antony v. S.P.D. Marthanda Varma). They argued that Ext.P4 and Ext.P5 were proper, and that the extraordinary jurisdiction of Article 227 should not be invoked to disturb a routine order in a civil suit. They emphasized that compliance with Rule 120 Civil Rules of Practice and proper procedure for summoning public records were necessary, and that the petitioners’ attempts to adduce additional evidence should be rejected to avoid improper reopening of the case.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Jortin Antony v. S.P.D. Marthanda Varma	2000 (2) KLT 680	Mentioned Only	The High Court notes that the Munsiff relied on this decision to reject the prayer but does not overrule or distinguish it in the present judgment.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 30TH JULY 2008 / 8TH SRAVANA 1930 WP(C).No. 29172 of 2003(W) -------------------------- PETITIONERS: - ------------------- 1. JOSEPH, S/O. THOMAS, MURIKKAN KARAMAYIL, KATTAMPAKKU KARA, NJEEZHOOR VILLAGE. 2. C.T. GEORGE, S/O. THOMAS, DO. DO. 3. MATHEW, S/O. THOMAS, DO. DO. 4. SUNNY, S/O. THOMAS, MURIKKAN KARAMAYIL, PARAMBRAM KARA, MUTTUCHIRA VILLAGE. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON.V.B. RESPONDENTS: - ------------- 1. THANKAMMA, W/O. JACOB, MURIKKAN VEETTIL, ELIVALI KARA, ERUMELI SOUTH VILLAGE. 2. M.J. JOSEPH, S/O. JACOB, DO. DO. 3. MATEHW JACOB, S/O. DO. DO. 4. MATHEW JACOB, S/O. JACOB, DO. DO. 5. CLARAMMA, W/O. THOMAS, MURIKKAN KARAMAYIL, PARAMBRAM KARA, KUTTUCHIRA VILLAGE. 6. ELSAMMA, W/O. JOSEPH, KIZHAKKE THOTTAM VEETTIL, POONJAR VILLAGE AND KARA, MEENACHIL TALUK. 7. JACOB, S/O. THOMAS, KARAMAYIL, PARAMBARAM KARA, MUTTUCHIRA VILLAGE. 8. THANKAMMA, W/O. SEBASTIAN, VETTUKALLIL VEETTIL, BHARANANGANAM VILLAGE & KARA, MEENACHIL TALUK. 9. KUNJAMMA, NEELAKKATTUMATTATHIL KURIYANADU VILLAGE, DO. TALUK. 10. VALSAMMA, DO. DO. 11. ROSAMMA, MURIKKAN KARAMAYIL, PARAMBARAM KARA, MUTTUCHIRA VILLAGE. 12. JOSEPH, S/O. GEORGE, DO. DO. 13. TOMY, S/O. GEORGE, DO. DO. 14. JACOB, S/O. DO. DO. 15. MATHEW, S/O. DO. DO. 16. GEORGE, S/O. DO. DO. 17. BEENA, D/O. DO. DO. 18. PHILIP, S/O. DO. DO. 19. KUNJUMOL, D/O. DO. DO. 20. ALEKUTTY, DO. DO. 21. SEJI D/O. JACOB, KARAMAYIL, PARAMBRAM KARA, MUTTUCHIRA VILLAGE 22. RAJI, D/O. DO. DO. 23. TEENA, D/O. DO. DO. (ADDL. R21 TO 23 IMPLEADED AS PER ORDER DT.30/7/2008 IN I.A.11264/04) BY ADV. SRI.SIBY MATHEW FOR R1-R4 SRI.P.JACOB VARGHESE (SR.) FOR R11-R19 SMT.V.A.GANGUJA FOR R11-R19 SRIFRANCIS JOSEPH KURISINKAL FOR R11-R19 SRI.VIVEK VARGHESE P.J. FOR R11-R19 SRI.SIBY MATHEW FOR R1- R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) 29172/2003 ## **APPENDIX** ## **PETITIONERS’ EXHIBITS:-** - EXT.P1:- TRUE COPY OF THE ORDER DATED 6.7.2002 IN I.A.688/02 IN O.S.125/95, MUNSIFF’S COURT, VAIKOM. - EXT.P2:- TRUE COPY OF THE AFFIDAVIT AND THE I.A.790/02 DT. 18.7.2002 - EXT.P3:- TRUE COPY OF THE AFFIDAVIT AND I.A. 791/02 DT. 17.7.02 - EXT.P4:- TRUE COPY OF THE ORDER DT. 23.8.2003 IN I.A. 790/02 IN O.S.125/95, MUNSIFF’S COURT, VAIKOM. - EXT.P5:- TRUE COPY OF THE ORDER IN I.A. 791/02 IN O.S. 125/95, MUNSIFF’S COURT, VAIKOM. ## **RESPONDENTS’ EXHIBITS:-** EXT.R1(a):- TRUE COPY OF THE JUDGMENT IN O.S. NO.568/1997 IN THE COURT OF THE MUNSIFF, KANJIRAPPALLY, DT. 11.7.2002 OKB/- //TRUE COPY// P.A. TO JUDGE ## **ORDER ON I.A.11264/2004 IN WP(C) 29172/2003** ALLOWED. 30.7.2008. SD/- M. SASIDHARAN NAMBIAR, JUDGE OKB/- /TRUE COPY/ P.A. TO JUDGE ## **M. SASIDHARAN NAMBIAR, J.** ------------------------------------------ W.P.(C) NO.29172 OF 2003 -----------------------------------------Dated this the 30[th] day of July, 2008 ## **JUDGMENT** Petitioners are the defendants and respondents the plaintiffs in O.S. 125 of 1995 on the file of Munsiff Court, Vaikom. This petition is filed under Article 227 of Constitution of India to quash Ext.P4 and P5 orders. Ext.P4 order is passed in I.A. 790 of 2002, an application filed under Rule 1 of Order XLVII of Code of Civil Procedure to review the order passed by the Court closing the evidence and posting the case for arguments. Ext.P5 order is passed in I.A. 791 of 2002, an application filed by petitioners to summon the witnesses shown in the application. Petitioners have earlier filed I.A. 688 of 2002 to mark the copies of statements filed by defendants 2, 3 and 10 before Taluk Land Board. Under Ext.P1 order dated 6.7.2002 the petition was dismissed holding that without examining the witnesses documents cannot be marked. Ext.P1 order shows that learned Munsiff also observed that petitioners can mark the documents by recourse to proper procedure as provided under law. After examination of the witnesses on the side of 2 WP(C)29172/03 petitioners/defendants and respondents/plaintiffs, learned Sub Judge closed the evidence on 20.7.2002. It is to re-open the case for evidence by reviewing the order I.A.790 of 2002 was filed contending that the witnesses sought to be examined as per I.A. 791/02 are necessary to prove the case of the petitioners and therefore evidence is to be re-opened. I.A. 791 of 2002 was filed to examine witnesses shown in the witness list. Under Ext.P5 order, learned Munsiff dismissed the application and refused to permit petitioners to examine the witnesses shown therein. Witnesses 1 to 4 shown in the schedule are the defendants. Learned Munsiff relied on the decision of this Court in **Jortin Antony v. S.P.D. Marthanda Varma (2000 (2) KLT 680)** and rejected the prayer. 2. The argument of the learned counsel appearing for petitioners is that the prohibition to summon the opposite party as a witness is only as against the parties and there is no prohibition in Court summoning and examining any of the parties to the suit. On the facts I do not find any illegality or any other reason to interfere with the finding of the learned Munsiff that plaintiffs cannot be summoned to enable defendants to examine them as a witness on their behalf. It is upto the 3 WP(C)29172/03 plaintiffs to decide whether they are to be examined as witnesses or not. They cannot be compelled to give their evidence by the defendants. 3. Learned Munsiff rejected the prayer to examine the other witnesses, who are the advocates, stating that the reason for their examination was not mentioned. It cannot be said that that is not a valid ground. Hence I find no reason to interfere with that portion of the order. The prayer for summoning the Revenue Divisional Officer was rejected on the ground that RDO is sought to be summoned to produce records from the Taluk Land Board and if the records from Taluk Land Board are to be called for, provisions under Rule 120 of Civil Rules of Practice are to be satisfied. Learned Munsiff is correct in that aspect also. If a document in the custody of a public officer is to be summoned, petition is to be filed under Rule 120 of Civil Rules of Practice. If original document is to be produced, it is necessary to show the reason in the petition itself as otherwise party can produce certified copy of the document. Otherwise, it should be satisfied that certified copy was applied for and was not granted. In such circumstances, I do not find any reason to interfere with Ext.P5 order. Review of the order was sought 4 WP(C)29172/03 only for the purpose of examining the witnesses sought for in the other application. When that petition was dismissed, I do not find any reason to interfere Ext.P4 order also. There is no illegality or irregularity in Ext.P4 and P5 orders warranting interference in exercise of the extraordinary powers of this Court under Article 227 of Constitution of India. 4. Learned counsel appearing for petitioners then submitted that in the light of importance of the statements filed before Taluk Land Board by the plaintiffs where there is an admission with regard to the exclusive right of Thomas, the right of petitioners to adduce evidence may not be shut out. If it is taken that there is any such admission by the plaintiffs or their predecessors, petitioners could have produced certified copies of the documents. If such certified copy is produced, learned Munsiff may consider the same, if proper application is filed and reasons are also shown. Writ petition is dismissed. ## **M. SASIDHARAN NAMBIAR, JUDGE** Okb/-