High Court of KeralaSingle Judge2011-06-07Original Petition dismissed.

Kalliyara Estates Pvt. Ltd. v. State of Kerala and others

Case / Petition Number:OP(C).No. 582 of 2011 (O)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K.T. Sankaran
Judgment Date: 2011-06-07
Court Decision / Holding: The Original Petition lacks merit; it is dismissed. The court held that summoning the opposite party as a witness is not warranted given the potential for opinion evidence, and upheld the trial court’s discretionary dismissal.
Final Disposition: Original Petition dismissed.

Parties to the Case

Appellants / Petitioners

Kalliyara Estates Pvt. Ltd.

Respondents

State of Kerala
Conservator and Custodian of Vested Forests, Olavakkode, Palakkad
District Forest Officer, Olavakkode, Palakkad
Village Officer, Malampuzha Village, Palakkad District
Kerala State Forest Development Corporation, Kottayam
Prakashini G. Menon
Jayasree Nair
Kallakulangara Sri Emoor Bhagavathy Temple, Olavakkode PO, Palakkad
V.K. Sreenivasan

Legal Representation & Advocates

Counsels for Petitioners

• V. John Mani

Counsels for Respondents

• M.P. Prakash, Special Government Pleader for Forests

Case Synopsis & Summary

Kalliyara Estates Pvt. Ltd. filed OP(C) No. 582 of 2011 challenging an order of the Sub Court, Palakkad, that dismissed I.A. No. 133/2010 in O.S. No. 205 of 2006 seeking summons of four witnesses. The suit, originally instituted by the plaintiff, seeks a declaration that the plaint schedule property, claimed to extend over 3300 acres, exclusively belongs to the plaintiff and that defendants 1–8 have no right, title, possession or interest in the property, along with a permanent injunction restraining trespass. The 3rd defendant contended that the suit is barred under the Kerala Private Forests (Vesting and Assignment) Act, 1971. The petitioner sought to examine four persons including the Principal Chief Conservator of Forests and other forest officers to establish a discussion and an assurance allegedly given by the PCCF that forest officials had no right to take possession under the Act. The trial court dismissed on grounds that the applicant did not state the purpose for summoning witnesses and failed to file a Form No. 20 list. The High Court upheld the dismissal, noting that the sought witnesses were the opposite party or forest officers and that opinion evidence is not relevant; it also emphasized judicial discretion under CPC sections. The court concluded that the petition lacks merit and dismissed the petition, with no interference under Article 227.

Provisions of Law Cited

Section 30(b) of the Code of Civil ProcedureOrder XVI of the CPCRule 69 of the Civil Rules of Practice, KeralaKerala Private Forests (Vesting & Assignment) Act, 1971Article 227 of the Constitution of India

Legal Doctrines & Maxims

No right is vested in a party to summon the opposite party as a witness.
Opinion evidence is not relevant.
Court has discretion under Section 30 and Order XVI to regulate the summoning of witnesses; summoning the opposite party as a witness is generally deprecated.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that summoning four officers, including the PCCF and forest officials, is necessary to establish the alleged assurance given during a discussion held on 19.11.2009, and to prove discussion/opinions relevant to the controversy but not legally admissible as evidence of law. It argues that the witnesses would shed light on the alleged lack of notification under the 1971 Act and assist in determining the rights to possession and cultivation of the plaint property; the absence of Form No. 20 should not bar relevant evidence.

Contentions of Respondents

The respondents argue that summoning opposite party or forest department officers as witnesses is improper, as the purpose is to obtain opinion evidence and policy statements rather than admissible facts. They contend that Section 30(b) CPC and Order XVI limits exist to regulate witness summons, and there is no absolute right to summon the opposite party. The court below correctly held that the proposed evidence is not relevant and that the petition lacks merit; the matter does not warrant interference under Article 227.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Jortin Antony v. S.P. Marthanda Varma	2000 (2) KLT 680	Positive	Cited to support the proposition that summoning opposite party as a witness is deprecated.
Narayana Pillai v. Kalliyani Amma	1963 KLT 537	Positive	Cited to illustrate limits on summoning opposite party witnesses.
Muhammed Kunju v. Shahabudeen	1969 KLT 170	Positive	Cited for the principle against summoning the opposite party as a witness.
Syed Mohammed v. Aziz	1990 (2) KLT 952	Positive	Cited to reinforce restrictions on opposite party witnesses.
Mary Francis v. Kesavan	1993 (1) KLT 4	Positive	Cited as authority on limited use of witness summons against the opposite party.

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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 K.T.SANKARAN TUESDAY, THE 7TH DAY OF JUNE 2011/17TH JYAISHTA 1933 ## **OP(C).No. 582 of 2011 (O)** AGAINST THE ORDER DATED 11.8.2010 IN I.A.NO.133/2010 IN I.A.NO.4131/2009 IN O.S.NO.205/2006 OF SUB COURT, PALAKKAD ## **PETITIONER:** KALLIYARA ESTATES PVT. LTD.PADINJAREMURI, MALAMPUZHA, PALAKKAD DISTRICT, REP. BY ITS DIRECTOR SAJITHA PREMSI. BY ADV. SRI.V.JOHN MANI ## **RESPONDENTS:** 1. STATE OF KERALA REP.BY THE DISTRICT COLLECTOR, PALAKKAD. 2. THE CONSERVATOR AND CUSTODIAN OF VESTED FORESTS, OLAVAKODE, PALAKKAD. 3. THE DISTRICT FOREST OFFICER, OLAVAKODE, PALAKKAD. 4. THE VILLAGE OFFICER, MALAMPUZHA VILLAGE, PALAKKAD DISTRICT. 5. THE KERALA STATE FOREST DEVELOPMENT CORPORATION, KOTTAYAM 6. PRAKASHINI G.MENON, D/O.GOVINDAN PARAMESWARAN NAIR, NAIR MAHAL,S.B.MARG, MAHIM PO, MUMBAI-16. 7. JAYASREE NAIR -DO- -DO- 8. KALLAKULANGARA SRI EMOOR BHAGAVATHI TEMPLE, OLAVAKODE PO, PALAKKAD, REP.BY ITS EXECUTIVE OFFICER-678002. 9. V.K.SREENIVASAN, S/O.LATE KUNJUVELAPPAN DIRECTOR, KALLIYARA ESTATES PVT.LTD, PADINJAREMURI MALAMPUZHA PO, PALAKKAD DISTRICT- 678 651. BY SRI.M.P.PRAKASH,SPL.GP FOR FORESTS THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07-06-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - EXT.P1 TRUE COPY OF THE PLAINT IN O.S.NO.205/2006 OF THE SUB COURT, PALAKKAD. - EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT DATED 28.8.2006 OF THE THIRD DEFENDANT IN O.S.NO.205 OF 2006 OF THE SUB COURT, PALAKKAD. - EXT.P3 TRUE COPY OF THE WRITTEN STATEMENT DATED 17.1.2007 OF THE 8TH DEFENDANT IN O.S.NO.205 OF 2006 OF SUB COURT, PALAKKAD. - EXT.P4 TRUE COPY OF I.A.NO.4131/2009 DATED 17.11.2009 IN O.S.NO.205/2006 OF THE SUB COURT, PALAKKAD. - EXT.P5 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 15.12.2009 IN O.S.NO.205/2006 OF THE SUB COURT, PALAKKAD. - EXT.P6 TRUE COPY OF I.A.NO.133/2010 DATED 12.1.2010. - EXT.P7 TRUE COPY OF THE ORDER DATED 11.8.2010 IN I.A.NO.133/2010 IN I.A.NO.4131/2009 IN O.S.NO.205/2006 OF THE SUB COURT, PALAKKAD. ## **RESPONDENTS' EXHIBITS** : NIL //TRUE COPY// AHZ/ ## **K.T.SANKARAN, J.** **-----------------------------------------------------O.P.(C). NO. 582 OF 2011 O -----------------------------------------------------Dated this the 7[th] day of June, 2011** ## **JUDGMENT** The petitioner, the plaintiff in O.S.No.205 of 2006, Sub Court, Palakkad, is aggrieved by the order dated 11.8.2010 passed by the court below dismissing I.A.No.133 of 2010 filed by the plaintiff for summoning witnesses. 2. The suit is for a declaration that the plaint schedule property, having an extent of 3300 acres, exclusively belongs to the plaintiff and that defendants 1 to 8 or any of them have no manner of right, title, possession or interest in the property. There is also a prayer for permanent prohibitory injunction restraining defendants 1 to 8 from trespassing into the plaint schedule property. Defendants 1 to 8 are: (1) State of Kerala; (2) Conservator and Custodian of Vested Forest, Olavakkode, Palakkad; (3) District Forest Officer, Olavakkode; (4) Village Officer, Malampuzha; (5) Kerala Forest Development Corporation; (6) Prakashini.G.Menon; (7) Jayasree Nair and (8) Kallekulangara Sri Emoor Bhagavathy Temple. In the O.P.(C) NO.582 OF 2011 O :: 2 :: written statement filed by the third defendant, a contention is raised that the suit is barred under the provisions of the Kerala Private Forests (Vesting and Assignment) Act, 1971. 3. The plaintiff filed I.A.No.133 of 2010 to issue summons to examine the following persons as witnesses on behalf of the plaintiff. They are: (1) The Principal Chief Conservator of Forest, Thiruvananthapuram; (2) the second defendant; (3) The former Forest Divisional Officer, Olavakkod, Palakkad; and (4) The Range Officer, Walayar, Palakkad. The application was opposed by the defendants. The court below, by the order impugned in this Original Petition, dismissed the application on the ground that the petitioner did not mention the purpose for which the witnesses are proposed to be examined and also on the ground that the petitioner did not file a witness list in form No.20 as stipulated under Rule 69 of the Civil Rules of Practice, Kerala. 4. In the affidavit accompanying the application, the petitioner stated thus: “4. I have also contended that the Forest Tribunal by order dated 27.2.96 held that there is no notification ## O.P.(C) NO.582 OF 2011 O :: 3 :: under the Kerala Private Forest (Vesting & Assignment) Act, 1971 relating to the property and that V.K.Sreenivasan along with V.S.Sujith and their counsel met the Principal Chief Conservator of Forest on 19.11.2009 and submitted a representation and had a discussion in the matter of the harassment of the forest officials in conducting the cultivation in the plaint scheduled property. During the course of discussion the Prl. Chief Conservator of Forest has assured them that the forest officials have no right to take possession of any plantation under the Kerala Private Forest (Vesting & Assignment) Act, 1971 and they have not taken possession of Kalliaya estates or G.P.Nair plantation or any of the 17 Industries.” The learned counsel for the petitioner submitted that V.K.Sreenivasan and V.S.Sujith referred to in the affidavit are the Directors of the plaintiff Company. 5. One of the witnesses sought to be examined is the second defendant himself. Others are the officers of the Forest Department and a former officer of the Forest Department. In effect, apart from the second defendant, the other three witnesses sought to be examined would also satisfy the term “opposite party”. The reason O.P.(C) NO.582 OF 2011 O :: 4 :: for examining these officers is apparently to prove a discussion which took place between the Principal Chief Conservator of Forests and the Directors of the plaintiff Company and the alleged assurance made by the Principal Chief Conservator of Forests. The averment in paragraph 4 of the affidavit would also indicate that what is sought to be proved is an opinion on a question of law made by the Principal Chief Conservator of Forests and an assurance based on that opinion. Such opinion evidence is not relevant at all. 6. Summoning the opposite party as a witness is deprecated by this Court in various decisions. [See **Jortin Antony** v. **S.P.D.Marthanda Varma** (2000 (2) KLT 680); **Narayana Pillai** v. **Kalliyani Amma** (1963 KLT 537); **Muhammed Kunju** v. **Shahabudeen** (1969 KLT 170); **Syed Mohammed** v. **Aziz** (1990 (2) KLT 952) and **Mary Francis** v. **Kesavan** (1993 (1) KLT 4).] A party to the suit is entitled to examine himself and give evidence. He is also entitled to adduce such other relevant evidence by examining other witnesses. The Court has power to summon any witness whose evidence appears to be relevant. Section 30(b) of the Code of Civil Procedure confers vast powers on the civil court to O.P.(C) NO.582 OF 2011 O :: 5 :: issue summons to persons whose attendance is required either to give evidence or to produce documents or such other objects as mentioned in clause (a). The power vested in a Court under Section 30 is subject to such conditions and limitations as may be prescribed. The power under Section 30 can be exercised either on its own motion or on the application of any party. The conditions and limitations prescribed occur in Order XVI of the Code of Civil Procedure. No right is vested in a party to summon the opposite party as a witness. The Court is entitled to ascertain whether the purpose of summoning witnesses is for adducing relevant evidence or whether it is an attempt to cause inconvenience and embarrassment to the opposite party. It is not the absolute right of a party to summon any person as a witness or to examine any number of witnesses. The Court is not powerless in the matter of regulating the proceedings for taking evidence in the case. 7. The court below was justified in dismissing the application. The evidence sought to be adduced is not relevant. The persons sought to be examined are the second defendant and officials of the Forest Department, who satisfy the term “opposite party”. No grounds are made out for exercising the jurisdiction under Article 227 O.P.(C) NO.582 OF 2011 O :: 6 :: of the Constitution of India to interfere with the order passed by the court below. The Original Petition lacks merit and it is accordingly dismissed. **(K.T.SANKARAN) Judge** ahz/