Mary Ronald @ Sobha et al. v. C.A. Paul @ Baby and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 01ST DAY OF DECEMBER 2020 / 10TH AGRAHAYANA, 1942** ## **OP(C).No.2749 OF 2019** **AGAINST THE ORDER IN I.A.NO.1586/2019 AND I.A.NO.1633/2019 IN O.S 3/2018 DATED 11-10-2019 OF ADDITIONAL SUB COURT, NORTH PARAVUR** ## **PETITIONERS/DEFENDANTS:** - **1 MARY RONALD @ SOBHA AGED 57 YEARS W/O RONALD ANTONY AND D/O LATE C.P. ANTONY, RESIDING AT BLK 234A, SERANGOON AVE-2, 05-135, SINGAPORE-5512324.** - **2 RANI XAVIER @ NIRMALA AGED 55 YEARS W/O C.M. XAVIER AND D/O LATE C P ANTONY, CHOOLALLAL HOUSE, SPICES STREET LISSIE ROAD, ERNAKULAM, KOCHI-682017** - **3 C.A JOY @ JOEMON AGED 51 YEARS S/O LATE C.P.ANTONY, CHAKKIATH HOUSE, AYROOR, AYROOR P.O, KURUMASSERY (VIA), ERNAKULAM DISTRICT, PIN-683 579** - **4 MARTIN ANTONY @ JOEMON AGED 47 YEARS S/O LATE C.P ANTONY, CHAKKIATH HOUSE, AYROOR, AYROOR P.O., KURUMASSERY (VIA) ERNAKULAM DISTRICT, PIN - 683 579** **5 MANU MARTIN @ ELIZABETH AGED 45 YEARS W/O A.V.MARTIN AND D/O LATE C.P.ANTONY, ANTHIKKAD HOUSE, ELOOR FERRY, UDYOGAMANDAL P.O, PIN-683 501** **6 JULIE MARTIN @ JULIET AGED 42 YEARS W/O M.D MARTIN AND D/O LATE C.P. ANTONY, MOOTHEDAN HOUSE, AMBATTUKAVU, ALUVA, PIN-683 101** **BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA** ## **RESPONDENTS/PLAINTIFFS:** **1 C.A.PAUL @ BABY AGED 61 YEARS S/O LATE C.P ANTONY, CHAKKIATH HOUSE, JULISTAN, N.PARAVUR, ERNAKULAM DISTRICT. PIN- 683 513 2 C.A PETER @ RAJAN AGED 59 YEARS S/O LATE C.P ANTONY, CHAKKIATH HOUSE, HOUSE NO.2978 OF PARAVOOR MUNICIPALITY, NEAR ANDISSERY TEMPLE, N PARAVUR, ERNAKULAM DISTRICT, PIN 683 513.** - **3 ANTONY MATHEW @ SANTHOSH AGED 53 YEARS ADVOCATE, S/O LATE C.P. ANTONY, CHAKKIATH HOUSE, AYROOR, AYROOR P.O, KURUMASSERY (VIA), ERNAKULAM DISTRICT, PIN - 683 579.** **R1-3 BY ADV.SRI.C.S.MANU** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 18-11-2020, THE COURT ON 01-12-2020 DELIVERED THE FOLLOWING:** O.P.(C) No.2749/2019 3 ## **R.NARAYANA PISHARADI, J** ************************ O.P.(C) No.2749 of 2019 -------------------------------------------------Dated this the 1[st] day of December, 2020 ## **J U D G M E N T** The petitioners are the defendants and the respondents are the plaintiffs in the suit O.S.No.3/2018 on the file of the Additional Sub Court, North Paravur. 2. The suit is for partition of properties. On 06.08.2019, on the date on which the cross-examination of PW1 was scheduled to be conducted, the counsel for the defendants did not cross-examine the witness and the trial court recorded that fact. 3. Subsequently, on 29.08.2019, the defendants filed an application as I.A.No.1586/2019 (Ext.P4) for receiving documents. On 05.09.2019, the defendants filed another application as I.A.No.1633/2019 (Ext.P3) for recalling the witness (PW1) for cross-examination. O.P.(C) No.2749/2019 4 4. As per Ext.P5 order, the trial court allowed Ext.P4 application but dismissed Ext.P3 application. 5. The defendants have filed this original petition under Article 227 of the Constitution of India, challenging the legality and propriety of Ext.P5 order passed by the trial court, dismissing Ext.P3 application. 6. Heard learned counsel for the petitioners and also the respondents. 7. Learned counsel for the petitioners submitted that, due to an inadvertent omission on the part of the junior counsel who appeared for the defendants, it was submitted before the trial court that there was no cross-examination of the witness to be conducted. Learned counsel would also submit that the finding of the trial court in Ext.P5 order that it is a fit case in which a judgment on admission can be passed is not correct. 8. Learned counsel for the respondents submitted that the application filed by the defendants for recalling the witness is the result of afterthought and the defendants have admitted in the written statement that the properties are partible. O.P.(C) No.2749/2019 5 9. The main reason stated by the trial court in Ext.P5 order, for dismissing Ext.P3 application, is that it is a fit case in which a judgment on admission could certainly be passed. True, there is a recital in the written statement that the defendants are ready to partition, whatever extent of property available, into equal shares. But, the trial court should have considered the entire averments in the written statement as a whole, instead of picking out a sentence from it, to reach a finding that a judgment on admission can be passed in the suit. The trial court has omitted to note that the defendants have not only disputed the extent of the property available for partition but also the survey numbers of the property sought to be partitioned. 10. However, the contention of the learned counsel for the petitioners that, the submission before the trial court that there was no cross-examination of the witness to be conducted was an inadvertent omission on the part of the junior counsel, is not at all convincing. When the counsel had specifically made a statement before the trial court that there was no crossexamination of the witness to be made, it cannot be treated as 6 O.P.(C) No.2749/2019 an “inadvertent omission”. 11. But, considering the facts of the case, the trial court should have taken a reasonable view of the matter and allowed Ext.P3 application on payment of reasonable amount of costs by the defendants to the plaintiffs. 12. Order XVIII Rule 17 of the Code of Civil Procedure, 1908 (for short 'the Code') states that, 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. 13. The ambit and scope of the provision contained in Order XVIII Rule 17 of the Code have been considered by this Court in **Savithri v. Sreenivasan : 1987 (2) KLT 388** and by the Supreme Court in **Vadiraj Naggappa Vernekar v. Sharad Chand Prabhakar Gogate: AIR 2009 SC 1604** , **Velusamy v. Palanisamy : (2011) 11 SCC 275** , **Bagai Construction v. M/s Gupta Building Material Store : AIR 2013 SC 1849** and **Ram Rati v. Mange Ram : AIR 2016 SC 1343** . O.P.(C) No.2749/2019 7 14. After a survey of the aforesaid decisions, in **Mathew Lawrence v. Rockey C. Neroth** [ **2020 SCC OnLine Ker 3849 : 2020 (5) KLT OnLine 1016** ], this Court has stated as follows: _“The following principles can be culled out from the decisions referred to above. The power of the Court to invoke the provision under Order XVIII Rule 17 is discretionary and ought to be exercised very sparingly. The discretion shall be exercised judicially and on well accepted principles and not arbitrarily or capriciously. The power can be exercised by the Court at any stage of the suit, that is, before pronouncing judgment. The main purpose of this rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. It is not a provision intended to be used to fill up omissions or lacunae in the evidence of a witness who has already been examined. The power under Order XVIII Rule 17 of the Code can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit. It will not be proper to invoke the power under this provision merely for the reason that recalling a witness at the instance of a party will not cause any prejudice to_ O.P.(C) No.2749/2019 8 _the opposite party. But, the inherent power of the court under Section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to re-open the evidence and/or recall witnesses for further examination and it is not a power which is affected by the express power conferred upon the court under Order XVIII Rule 17 of the Code. The power under Section 151 of the Code shall be sparingly exercised when the Court feels that it is absolutely necessary to do so. Where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production of such evidence earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit such additional evidence. But,in such cases, the Court shall ensure that delay in the proceedings in the suit is avoided and that the party affected is compensated by payment of costs. Deletion of the provision contained in Order XVIII Rule 17A from the Code does not mean that no evidence can be received at all, after a party closes his evidence. But, an application under Order XVIII Rule 17 of the Code, for recalling a witness for further crossexamination on points left out earlier, cannot be entertained by the Court.”_ O.P.(C) No.2749/2019 9 15. Ext.P3 application was filed by the defendants under Order XVIII Rule 17 of the Code. Even if that provision cannot be invoked, in appropriate cases, the power under Section 151 of the Code can be invoked by the trial court. The trial court did not consider any of the relevant aspects and it dismissed Ext.P3 application on a wrong understanding of the recitals in the written statement filed by the defendants. It is not a case where the witness is sought to be recalled for further crossexamination. It is a case where there was no cross-examination of the witness conducted by the defendants when opportunity was granted to them and they filed an application for granting a further opportunity for cross-examination of the witness. 16. In my view, the order of the trial court, dismissing Ext.P3 application, has resulted in manifest injustice. Therefore, I am inclined to interfere with that order but certainly on the condition that the defendants shall pay reasonable amount of costs to the plaintiffs to compensate the hardship that would be caused to them by allowing Ext.P3 application. O.P.(C) No.2749/2019 10 17. Consequently, the original petition is disposed of as follows: Ext.P5 order, as far as it relates to the dismissal of Ext.P3 application, is set aside. Ext.P3 application filed by the petitioners/defendants in the trial court shall stand allowed on the condition that the petitioners/defendants shall deposit an amount of Rs.5,000/- (Rupees five thousand only) in the trial court towards costs to be paid to the respondents/plaintiffs. The parties shall appear before the trial court on 15.12.2020. The petitioners/defendants shall deposit the amount of Rs.5,000/(Rupees five thousand only) in the trial court on or before that date. If the petitioners/defendants fail to deposit the amount within that period, Ext.P3 application filed by them shall stand dismissed. The trial court shall dispose of the suit as expeditiously as possible. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr O.P.(C) No.2749/2019 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **THE TRUE COPY OF THE PLAINT IN OS NO. 3/2018 OF THE SUB COURT NORTH PARAVUR** **EXHIBIT P2 THE TRUE COPY OF THE WRITTEN STATEMENT IN OS NO. 3/2018 OF THE SUB COURT II PARAVUR** **EXHIBIT P3 THE TRUE COPY OF THE I.A NO. 1633/2019 IN OS NO. 3/2018 OF THE SUB COURT II PARAVUR.** **EXHIBIT P4 THE TRUE COPY OF THE I.A NO 1586/2019 IN OS NO. 3/2018 OF THE SUB COURT II PARAVUR** **EXHIBIT P5 THE TRUE COPY OF THE COMMON ORDER PASSED I.A NO. 1586/2019 AND I.A NO.1633/2019 IN OS NO. 3/2018 ADDL SUB COURT NORTH PARAVUR DATED 11/10/2019.** ## **RESPONDENTS' EXHIBITS : NIL** TRUE COPY PS TO JUDGE