Mathappan, S/o Enasu v Vinodan and Pauloose

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR** ## **TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930** ## **WP(C).No. 20126 of 2007(U)** **------------------------------------** ## **OS.594/1998 IN IA NO.4324/04 of SUB COURT,THRISSUR** **....................** ## **PETITIONER:** - **------------------** **MATHAPPAN,S/O.ENASU, EDAKKALATHUR HOUSE, MULLASSERY AMSOM DESOM, CHAVAKKAD TALUK.** **BY ADV. SRI.K.K.MOHAMED RAVUF** ## **RESPONDENTS:** **----------------------** **1. VINODAN,S/O.PARAN, NINIYATH HOUSE,MULLASSERRY AMSOM, AND DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT.** **2. PAULOSE,S/O.INASU EDAKKALATHOORU HOUSE, MULLASSERY AMSOM AND DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT.** **BY ADV. SRI.M.RAJAGOPALAN SRI.RAJIT - R1** **SRI.RANJIT BABU - R1** **SRI.K.MUHAMMED SALAHUDHEEN - R2** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C).20126/2007-U** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE I.A. NO.1811 OF 2001.** **EXT.P2: COPY OF I.A. NO. 4325 OF 2004.** **EXT.P3: COPY OF THE PETITION I.A. NO.4324/2004 FOR SENDING THE SIGNATURE OF THE PETITIONER AND ANOTHER AND THE ORDER IN I.A. NO.4324 OF 2004 DATED 14/10/2004.** **EXT.P4: COPY OF THE ORDER OF THE LOWER COURT.** **EXT.P5: COPY OF THE JUDGMENT DATED 15/06/2007 IN W.P.(C). NO.32875 OF 2004.** **EXT.P6: COPY OF THE ORDER DATED 29/03/2007 OF THE LOWER COURT.** ## **RESPONDENT'S EXHIBITS: NIL** ## **// TRUE COPY //** **Rs/** ## **M.SASIDHARAN NAMBIAR,J.** =========================== W.P.(C) NO.20126 OF 2007 =========================== Dated this the 1st day of July, 2008 ## JUDGMENT Petitioner who is not a party to O.S.594/1998 but one of the defendants in the connected suit which is jointly tried by Sub Court, Thrissur filed this petition challenging Ext.P6 order passed by the learned Sub Judge in I.A.4324/2004, an application filed by first respondent plaintiff for a direction to the petitioner to be present in court to give his signature to be sent to the Forensic Science Laboratory for comparison of the signature seen in the agreement allegedly entered into by first respondent with second respondent. Under Ext.P6 order learned Sub Judge directed petitioner who is only an attesting witness to the disputed agreement dated 6.2.1996, to appear and give his signature to be forwarded to the expert. The petition was originally allowed without a speaking order and was challenged before this court W.P.(C)20126/2007 2 in W.P.(C)32875/2004. As per Ext.P5 judgment the order was set aside and learned Sub Judge was directed to pass fresh order after considering the objections. It is thereafter Ext.P6 order was passed. 2. Learned counsel appearing for petitioner and first respondent were heard. 3. Learned counsel appearing for petitioner argued that what is sought to be proved by first respondent by sending the signature of petitioner to the expert is that petitioner attested the disputed agreement allegedly executed by second respondent defendant and as far as that agreement is concerned, petitioner has no role to play and in such circumstance, being a witness, petitioner cannot be compelled to give his signature to be sent to the expert for comparison and Rule 14 of Order XVI of Code of Civil Procedure will not apply. Learned counsel argued that proof of signature of the attesting witness to the document arises only when the conditions provided under section 71 of Indian Evidence Act is attracted and before evidence was recorded, question of proof of W.P.(C)20126/2007 3 the attestation of the agreement does not arise and therefore Ext.P6 order is to be quashed. 4. Learned counsel appearing for first respondent relying on the Division Bench decision of this Court in **Jortin Antony v. S.P.D. Marthanda** **Varma (2000(2) KLT 680)** argued that eventhough Rule 7 of Order XVI does not enable first respondent to insist for the presence of petitioner to give evidence, Rule 14 enables court to compel any witness to be present in court to give evidence or to produce document and under Ext.P6 order, learned Sub Judge has invoked his power provided under Rule 14 and therefore the Writ Petition is to be dismissed. 5. As far as the disputed agreement is concerned, petitioner is only a witness who allegedly attested the execution. As rightly argued by learned counsel appearing for petitioner proof of the signature of the attesting witness to the agreement arises only when he is examined in court and denies his signature as provided under section 71 of Indian Evidence Act. Though Rule 14 of Order XVI enables the court at any time it W.P.(C)20126/2007 4 thinks necessary, to examine any person including a party to the suit, and also any witness who is not called by a party to the suit, to appear either to give evidence or to produce evidence or both, the power provided under Rule 14 does not enable the court to compel a probable witness who may be a necessary witness at a later stage, to be present in court and that too to give evidence to compare the signature of that witnesses for the purpose of proving a document which is relevant in that suit. The Division Bench did not uphold any such power to the court. The Division Bench has only held that it cannot be said that court has no power to direct examination of a party to the suit, if it considers necessary to order his examination. Analysing the decisions of various High Courts, it was held that there is nothing in the Code or the said decisions to enable one party citing the opposite party as his witness and there is no clear enabling provision which entitles one party to insist on his opponent being called as a witness. It was held that in the absence of any provision conferring such a right on a party to the suit, it is to be 5 ## W.P.(C)20126/2007 held that there is no such right in a party to the suit to summon his opponent to give evidence. Division Bench held that a party to the suit does not have a right as such to summon the opposite party to give evidence and it is really left to the court, possibly after the evidence of all the witnesses made available is completed, to consider whether examination of one of the parties who has not come before the court is necessary and in that context to compel that party to give evidence in exercise of its jurisdiction under Rule 14 of Order XVI of the Code. Therefore Rule 14 will not enable the court to compel petitioner who is not a party to O.S.594/1998, though a party to the connected suit which is jointly tried, to give his signature to enable the plaintiff in O.S.594/1998 to send his signature to the expert to compare it with the signature seen in the disputed agreement to prove execution of the document by the second respondent. The proof of signature of the attesting witness to the agreement will not serve any purpose, unless execution and signature of the alleged executant of the document is established. The proof of the W.P.(C)20126/2007 6 signature of the attesting witness to the agreement would arise only if that witness was examined and he denies the signature seen in the document. Then only as provided under section 71 of Indian Evidence Act, petitioner will get the right to prove the signature of the attesting witness, who denied his signature in the document. In such circumstance, learned Sub Judge was not justified in compelling petitioner to appear and give his signature as directed in Ext.P6 order. Writ Petition is allowed. Ext.P6 order is quashed. I.A.4324 of 2004 stands dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- ## M.SASIDHARAN NAMBIAR, J. --------------------W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006