Mammad Koya @ Mammu v. P.M. Imbichammu and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 29TH JULY 2011 / 7TH SRAVANA 1933** **OP(C).No. 116 of 2010(O)** **------------------------------OS.172/2008 of PRL.MUNSIFF COURT, KOZHIKODE-I** **....................** ## **PETITIONER** ## **---------------** **MAMMAD KOYA @ MAMMU, S/O.IMBICHAYISHABI, PATHARA HOUSE, NAGARAM AMSOM DESOM, KOZHIKODE DISTRICT - 673 001.** **BY ADVS. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.B.SUBRAMANYAN** ## **RESPONDENT(S):** **--------------------** **1. P.M.IMBICHAMMU, S/O.THEKKAKATH AHAMMAD KOYA, NAGARAM AMSOM, KOZHIKODE DISTRICT - 673 001.** ## **2. P.KADEEJABI, D/O.AYISHABI, IN DO. DO.** **3. K.V.ABDURAHIMAN, S/O.THEKKAKATH IMBICHAMMAD, IN DO. DO.** **4. K.V.IMBICHAYISHABI, W/O.THEKKAKATH IMBICHAMMAD, IN DO. DO.** ## **5. MOHAMMADALI,** **S/O.THEKKAKATH IMBICHAMMAD, IN DO. DO. REPRESENTED BY POWER OF ATTORNEY HOLDER, K.V.ABDURAHIMAN, S/O.THEKKAKATH IMBICHAMMAD, IN DO. DO.** ## **6. BASHEER AHAMMAD, S/O.DO. IN DO. DO.** **svs** **..........2/-....** **...2...** ## **OPC.NO.116/2010** ## **7. ABDUL ASEES,** **S/O.THEKKAKATH MOIDEEN KOYA, PANNIYANKARA AMSOM DESOM, REPRESENTED BY POWER OF ATTORNEY HOLDER ARIF, S/O.SUBAIR, ZUFAM, 15/391A, WHITE NAGAR, KUNDUNGAL ROAD, P.O.KALLAI- 673 003.** **8. HAJARA, D/O.THEKKAKATH MOIDEEN KOYA, KALATHINKUNNU AMSOM DESOM, KOZHIKODE DISTRICT- 673 001.** **9. ABDUL SALAM, S/O.DO. PANNIYANKARA AMSOM DESOM, KOZHIKODE REPRESENTED BY POWER OF ATTORNEY HOLDER, ARIF, S/O.SUBAIR, ZUFAM, 15/391A, WHITE NAGAR, KUNDUNGAL ROAD, KALLAI.** ## **10. ABDUL SATHAR, S/O.DO. RESIDING IN** **DO. DO.** ## **11. ABDUL LATHEEF, S/O.DO. RESIDING IN** **DO. DO.** ## **12. V.M.MOOSAKOYA,** **S/O.THEKKAKATH AHAMMAD KOYA, NAGARAM AMSOM DESOM, KOZHIKODE- 673 001.** **R1 TO 11 BY ADVS. SRI.K.M.FIROZ** **SMT.M.SHAJNA** **R12 BY ADV. SRI.AVM.SALAHUDIN** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **svs** ## **O.P.(C). NO. 116/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: DATED 20/02/2008, COPY OF THE PLAINT IN O.S. NO.172/2008 MUNSIFF'S COURT-I, KOZHIKODE.** - **P2: DATED 31/07/2008, COPY OF THE WRITTEN STATEMENT IN O.S. NO.172/2008, MUNSIFF'S COURT-I, KOZHIKODE FILED BY DEFENDANT.** - **P3: DATED 18/11/2009 COPY OF THE ADDITIONAL WRITTEN STATEMENT IN O.S. NO.172/2008, MUNSIFF'S COURT-I, KOZHIKODE FILED BY DEFENDANTS 1 TO 6 AND 8 TO 11.** - **P4: DATED 02/08/2009, COPY OF THE WRITTEN STATEMENT IN O.S. NO.172/2008, MUNSIFF'S COURT-I, KOZHIKODE FILED BY DEFENDANT NO.12.** - **P5: DATED 13/09/2010, COPY OF DEPOSITION OF DW-2 IN O.S. NO.172/2008, MUNSIFF'S COURT-I, KOZHIKODE.** - **P6: DATED 13/09/2010, COPY OF THE ORDER IN O.S. NO.172/2008 MUNSIFF'S COURT-I, KOZHIKODE.** - **P7: DATED 15/09/2010, COPY OF I.A. NO. 3062/2010 IN O.S.NO.172/08, MUNSIFF'S COURT-I, KOZHIKODE.** ## **RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** ## **P.A. TO JUDGE.** **svs** ## **THOMAS P. JOSEPH, J.** **-------------------------------------O.P.(C) No.116 of 2010 -------------------------------------Dated this the 29[th] day of July, 2011.** ## **JUDGMENT** Petitioner is 4[th] defendant in O.S.No.172 of 2008 of the court of learned Principal Munsiff-I, Kozhikode. That is a suit for partition filed by respondents 1 to 11. Defendants 1 to 6 and 8 to 11 contested the suit. (Learned counsel for petitioner/4[th] defendant submitted that 7[th] defendant is actually objecting to the partition). Petitioner claimed that the property is not partiable in view of Ext.B3, gift deed. One of the (alleged) attesting witnesses to the gift deed expired, the other being the 12[th] defendant. Hence, 12[th] defendant was cited as a witness by the petitioner for proving the gift deed since execution of that gift deed is denied by the contesting plaintiffs. 12[th] defendant was examined as DW2. According to the petitioner, in chief examination 12[th] defendant as DW2 has given evidence regarding execution of gift deed but in cross examination, gave certain answers which tented to support the stand of respondents 1 to 11/plaintiffs. Hence after cross examination was over petitioner sought permission to put leading question to the 12[th] defendant which was refused by learned Munsiff as per Ext.P6, order. That order is under challenge. Learned counsel for petitioner contended that the trend of evidence of 12[th] defendant in cross examination is as if he signed the document at the office of Sub Registrar while according to the petitioner, the document was executed at the house of the donor. It is also stated that evidence given by the witness in cross **OP(C) No.116 of 2010** 2 examination may give the impression that the document was not read over to anybody (including the donor) and if that evidence remains as such it may affect claim of petitioner regarding due execution and attestation of Ext.B3. Hence it is contended that Ext.P6, order is not correct and petitioner ought to have been given opportunity to put leading question. 2. Learned counsel for respondents 1 to 11/plaintiffs contend that even in chief examination the witness has stated that he signed the document at the office of Sub Registrar concerned and if necessary petitioner/4[th] defendant ought to have sought permission of the court to put leading question in the course of chief examination. Having not done, it is not open to the petitioner to seek that facility after cross examination is over. Reliance is placed on the decision of the Supreme Court in **State of Bihar v. Laloo Prasad alias** **Laloo Prasad Yadav and another [(2002) 9 SCC 626]** . Learned counsel for 12[th] defendant (DW2) supports the stand of respondents 1 to 11. 3. It is true that in the decision relied on by respondents 1 to 11/plaintiffs request of the Public Prosecutor to put leading questions to the witnesses after cross examination was over was declined by the trial court and that discretionary order passed by the trial court was not interfered by the Supreme Court observing that had the Public Prosecutor sought such facility in the course of chief examination there would have been no good reason for the **OP(C) No.116 of 2010** 3 trial court to disallow the prayer of Public Prosecutor. It is not as if under no circumstances a party calling the witness cannot be allowed to put leading question in re-examination or even questions which could be put in cross examination. It is within the power of the court to permit the party calling a witness to put question which could be put in cross examination in view of Section 154 of the Evidence Act Now, the question is whether on the facts of the case such a facility ought to have been given to the petitioner. 4. I must bear in mind that 12[th] defendant/DW2 who according to the petitioner is one of the attesting witnesses to the impugned gift deed (Ext.B3) has filed a statement supporting the case of respondents 1 to 11 (that the property is partiable meaning thereby that 12[th] defendant is not supporting Ext.B3, gift deed). Learned counsel for 12[th] defendant has submitted that 12[th] defendant is supporting respondents 1 to 11. Thus, position of 12[th] defendant is clear that though according to the petitioner/4[th] defendant, the former figures as an attesting witness he is not supporting petitioner/4[th] defendant in the matter of due execution and attestation of Ext.B3, gift deed. I find from the copy of deposition of the witness (DW2) that in chief examination he stated that he signed the impugned gift deed at the office of Sub Registrar. He stated that when he was called upon to sign document at that office, he obliged. He also stated in chief examination that he had not read the document in question. But in cross examination apart from asserting that he signed the document at the office of **OP(C) No.116 of 2010** 4 Sub Registrar he also stated that nobody had read the impugned document in his presence. That is a statement that he has made in cross examination for the first time and, what he stated in chief examination is only that he had not read the document in question. Thus a statement has been made in cross examination that according to the 12[th] defendant/DW2 nobody had read the impugned document in his presence. It that remained unchallenged it may have a bearing on the finding that the court has to enter regarding the due execution and attestation of Ext.B3. In such a situation it was only appropriate that the learned Munsiff exercised the discretion under Section 154 of the Evidence Act in favour of petitioner/4[th] defendant and permitted him to put such questions as might be put in cross examination. Having regard to these aspects I am inclined to think that learned Munsiff has not exercised the discretion in the proper manner which requires interference by this Court. 5. Learned counsel for respondents 1 to 11/ plaintiffs submitted that after the evidence of petitioner/4[th] defendant is over respondents 1 to 11 may be given opportunity to adduce further evidence. That is a matter which respondents 1 to 11 can urge before the learned Munsiff. Resultantly this Original Petition is allowed. Ext.P6, order is set aside. Petitioner is permitted to put such questions as might be put in cross examination to 12[th] defendant/DW2. Learned Principal Munsiff-I, Kozhikode **OP(C) No.116 of 2010** **==> picture [7 x 9] intentionally omitted <==** shall re-call the witness for the said purpose. If after such examination by the petitioner is over any further examination of that witness by any other party is required it is open to the parties to make a request in that regard before learned Principal Munsiff. **THOMAS P.JOSEPH, Judge.** **cks**