High Court of KeralaSingle JudgeOriginal Petition allowed; order modified to pe...

Missionary Congregation of the Blessed Sacrament (MCBS) Karukunnu, Karumaloor Village v. Shaji and Others

Case / Petition Number:OP(C).No.10/2022
Neutral Citation:/null

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • A. BADHARUDEEN
Judgment Date
2022-03-25
Court Decision / Holding
The Original Petition is allowed; the order impugned in the petition is modified. The court below is directed to summon and examine witnesses Nos. 3 to 6, in addition to the witnesses already permitted, thereby broadening the scope of admissible testimony while keeping the proceedings within judicial discretion.
Final Disposition
Original Petition allowed; order modified to permit examination of witnesses Nos. 3–6 in addition to those previously permitted.

Parties to the Case

Appellants / Petitioners

  • Missionary Congregation of the Blessed Sacrament (MCBS) Karukunnu, Karumaloor Village, Paravoor Taluk, Ernakulam District

Respondents

  • Shaji, S/o Thomas
  • Joy, S/o Thomas
  • Johny, S/o Ouseph
  • Davis, S/o Augusty
  • Varghese, S/o Thomas
  • Tony, S/o Varghese
  • Joseph, S/o Antony
  • Paulose, S/o Thomas
  • Biju, S/o Pappachan
  • Aneesh, S/o Devassy
  • Pauloose, S/o Chummar
  • Zachariah @ Achankunju
  • Benny, S/o Joseph
  • Varghese, S/o Varghese
  • Devas·sykutty, S/o Varghese
  • Kunjumon, S/o Joseph
  • Jose, S/o Joseph
  • Sabu, S/o Chummar
  • Nixon, S/o Thomas
  • Joseph S/o Devassy
  • Arch-Bishop, Ernakulam-Angamaly Arch-Diocese
  • Vicar General (Proto Syncellus), Arch-Diocese
  • Procurator, Arch-Diocese
  • St.Joseph’s Church, Karukunnu
  • St.Joseph’s Church, Karukunnu (Nadathukaiar), Parur
  • St.Mary’s Church, Alangad, Karumaloor
  • St Mary’s Church, Alangad (Nadathu kai karan)

Legal Representation & Advocates

Counsels for Petitioners

  • • V.N. Sankarjee
  • • V.N. Madhusudanan
  • • R. Udaya Jyothi
  • • M.M. Vinod
  • • M. Suseela
  • • Keerthi B.
  • • Chandran Vijayan Pillai
  • • P.K. Purushothaman Nair
  • • Nitheesh M.

Counsels for Respondents

  • • Carolin Sindhu Vaz
  • • G. Baiju
  • • John Joseph
  • • Vettikad C.
  • • C. Joseph
  • • Johny

Case Synopsis & Summary

This is an Original Petition (OP(C) No. 10 of 2022) under Article 227 of the Constitution of India before the Kerala High Court, arising from an order passed on 8 December 2021 in I.A. No. 15/2021 in O.S. No. 98/2017 before the Munsiff’s Court, North Paravoor. The petitioner, Missionary Congregation of the Blessed Sacrament (MCBS), seeks to set aside or modify the trial court’s handling of witness examination in the related suit. The core dispute concerns the scope of permissible examination of witnesses; the Munsiff’s order had allowed examination of some witnesses while excluding others (witnesses 3, 4, 5, 6, 10, 11, 14, 15, 16 and 18 were initially excluded). The petitioner argues that witness No. 3—the Auxiliary Bishop of the Ernakulam-Angamali Diocese—should be examined because he authored a vital document central to the case, and his status is not the same as a defendant. The respondents oppose summoning witness No. 3, conceding only 4–6 for examination. The court deliberates the propriety of summoning a party as a witness, noting the well-established limit that a party cannot compel the opposite party to testify, but emphasizes the court’s power to regulate proceedings and to summon and examine a party as a witness where justified. Relying on relevant precedents and the factual posture, the judge ultimately holds that there is no valid basis to deny examination of witness Nos. 3–6, and accordingly modifies the impugned order. The petition is allowed to this extent, directing the Munsiff’s Court to summon and examine witnesses 3–6 in addition to those already permitted. The ruling signifies a controlled expansion of witness examination to secure the vital documentary evidence, while reaffirming the court’s procedural authority.

Provisions of Law Cited

Article 227 of the Constitution of India

Legal Doctrines & Maxims

  • No right vested in a party to summon the opposite party as a witness.
  • Courts have power to regulate proceedings and summoning/examining a party as a witness.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the Munsiff’s order restricting the examination of witnesses was too narrow and unjustifiably excluded certain key witnesses, particularly witness No. 3 (the Auxiliary Bishop) who authored a vital document. The petitioner argues that though witness No. 3 is not a formal defendant, his testimony is essential to prove the document and the facts in dispute. The petitioner asserts that the court has implied powers to regulate proceedings and permit the examination of a party as a witness when necessary for the just disposal of the suit, and that a rigid interpretation would undermine the presentation of critical evidence. The petitioner therefore seeks modification of the order to permit examination of witnesses Nos. 3–6 in addition to those already permitted. The aim is to secure a complete evidentiary record while recognizing the court’s discretion to manage proceedings.

Contentions of Respondents

The respondents contend that there is no right for a party to compel the opposite party to testify and that witness No. 3’s examination should not be allowed simply on that basis. They rely on prior decisions to argue that the plaintiff cannot compel the defendant to be examined as a witness, and that the court can regulate the conduct of examinations only within the limits of law. They accept examination of witnesses Nos. 4–6 but oppose extending it to No. 3, arguing that 3’s status and role do not justify treating him as a witness for examination in the suit. They emphasize the need for orderly procedure and adherence to the established limits of witness examination to avoid undermining parties’ rights and the integrity of the pleadings.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Narayana Pillai v. Kalliyani Amma1963 KHC 143 : 1963 KLT 537Mentioned OnlyCited to support the proposition that no right vests in a party to summon the opposite party as a witness; used as background to the general principle, not as controlling authority for the specific modification in this case.
Kalliyara Estates Pvt. Ltd., Padinjaremuri v. State of Kerala & Ors.2012 (3) KHC 386 : 2012 (3) KLT SN 114 : 2012 (3) KLJ 552Mentioned OnlyCited to illustrate the broader legal position on the court’s power to regulate proceedings and to summon/examine a party as a witness, but not to dictate the outcome in this particular matter.

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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 A. BADHARUDEEN** **FRIDAY, THE 25[TH] DAY OF MARCH 2022 / 4TH CHAITHRA, 1944** **OP(C) NO. 10 OF 2022** **ARISING OUT OF THE ORDER DATED 8.12.2021 IN I.A NO. 15/2021 IN O.S NO.98 OF 2017 ON THE FILE OF THE MUNSIFF'S COURT,** ## **NORTH PARAVOOR** ## **PETITIONER/PLAINTIFF:** **MISSIONARY CONGREGATION OF THE BLESSED SACRAMENT (MCBS) KARUKUNNU, KARUMALOOR VILLAGE, PARAVOOR TALUK, ERNAKULAM DISTRICT, REPRESENTED BY ITS PROVINCIAL COUNCILLOR FR.THOMAS JACOB, (S/O CHACKO, AGED 43), ZION (SION) PROVINCE, PROVINCIAL HOUSE, MEDICAL COLLEGE P O, KOZHIKODE673 008.** **BY ADVS. V.N.SANKARJEE V.N.MADHUSUDANAN R.UDAYA JYOTHI M.M.VINOD M.SUSEELA KEERTHI B. CHANDRAN VIJAYAN PILLAI P.K. C.PURUSHOTHAMAN NAIR NITHEESH.M** ## **RESPONDENTS/DEFENDANTS:** **1 SHAJI, S/O THOMAS, AGED ABOUT 45, KIZHAKKUMTHALA, KARUKUNNU, KARUMALOOR VILLAGE, ERNAKULAM DISTRICT-683 511.** O.P(C).No.10/2022 2 - **2 JOY,** - **S/O THOMAS, AGED ABOUT 52, KIZHAKKUMTHALA, KARUKUNNU, KARUMALOOR VILLAGE, ERNAKULAM DISTRICT-683 511.** - **3 JOHNY, S/O OUSEPH,AGED ABOUT 63, KOYIKKARA, KIZHAKKUMTHALA, KARUKUNNU, KARUMALOOR VILLAGE, ERNAKULAM DISTRICT-683 511.** - **4 DAVIS, S/O AUGUSTY, AGED ABOUT 50, CHAKKIATH, , KARUKUNNU, KARUMALOOR VILLAGE, ERNAKULAM DISTRICT-683 511.** - **5 VARGHESE, S/O THOMAS, AGED ABOUT 68,** **CHAKKIATH, KARUKUNNU, KARUMALOOR VILLAGE, ERNAKULAM DISTRICT-683 511.** - **6 TONY, S/O VARGHESE, AGED ABOUT 35, CHAKKIATH, KARUKUNNU, KARUMALOOR VILLAGE, ERNAKULAM DISTRICT-683 511.** - **7 JOSEPH,** **S/O ANTONY, AGED ABOUT 60, KANDATHIL, KARUKUNNU, KARUMALOOR VILLAGE, ERNAKULAM DISTRICT-683 511.** - **8 PAULOSE,** - **S/O THOMAS, AGED ABOUT 60, CHAKKIATH, KARUKUNNU, KARUMALOOR VILLAGE, ERNAKULAM DISTRICT-683 511.** - **9 BIJU,** **S/O PAPPACHAN, AGED ABOUT 42, CHAKKIATH, KARUKUNNU, KARUMALOOR VILLAGE, ERNAKULAM DISTRICT-683 511.** - **10 ANEESH, S/O DEVASSY, AGED ABOUT 40, EDASSERY, KARUKUNNU, KARUMALOOR VILLAGE, ERNAKULAM DISTRICT-683 511.** O.P(C).No.10/2022 3 ## **11 PAULOSE,** **S/O CHUMMAR, AGED ABOUT 62, CHAKKIATH, KARUKUNNU, KARUMALOOR VILLAGE, ERNAKULAM DISTRICT-683 511.** - **12 ZACHARIAH @ ACHANKUNJU, AGED ABOUT 52,** **PARA VILAYIL, KARUKUNNU, KARUMALOOR VILLAGE, ERNAKULAM DISTRICT-683 511.** - **13 BENNY,** **S/O JOSEPH, AGED ABOUT 48, KALAPPARAMABATH, KARUKUNNU, KARUMALOOR VILLAGE, ERNAKULAM DISTRICT-683 511.** - **14 VARGHESE,** - **S/O VARGHESE, AGED ABOUT 48, KALAPPARAMBATH, KARUKUNNU, KARUMALOOR VILLAGE, ERNAKULAM DISTRICT-683 511.** - **15 DEVASSYKUTTY,** - **S/O VARGHESE, AGED ABOUT 62, KALAPPARAMABATH, KARUKUNNU, KARUMALOOR VILLAGE, ERNAKULAM DISTRICT-683 511.** - **16 KUNJUMON,** **S/O JOSEPH, AGED ABOUT 45, KIZHAKKUMTHALA, KARUKUNNU, KARUMALOOR VILLAGE, ERNAKULAM DISTRICT-683511.** - **17 JOSE,** **S/O JOSEPH, AGED ABOUT 65, CHAKKIATH, KARUKUNNU, KARUMALOOR VILLAGE, ERNAKULAM DISTRICT-683 511.** - **18 SABU,** **S/O CHUMMAR, AGED ABOUT 48, KUNDUKULAM, KARUKUNNU, KARUMALOOR VILLAGE, ERNAKULAM DISTRICT-683 511.** - **19 NIXON,** - **S/O THOMAS, AGED ABOUT 38, GOPURATHINKAL, KARUKUNNU, KARUMALOOR VILLAGE, ERNAKULAM DISTRICT-683 511.** - **20 JOSEPH S/O DEVASSY, AGED ABOUT 46, THEKKEKARA, KARUKUNNU, KARUMALOOR VILLAGE, ERNAKULAM DISTRICT-683511.** O.P(C).No.10/2022 4 - **21 ARCH-BISHOP, ERNAKULAM-ANKAMALY ARCH – DIOCESE, ARCH-BISHOP HOUSE, BROADWAY, ERNAKULAM, KOCHI-31.** - **22 VICAR GENERAL (PROTO SYNCHELLUS),** **ERNAKULAM-ANKAMALY ARCH-DIOCESE, ARCH-BISHOP HOUSE, BROADWAY, ERNAKULAM, KOCHI-31.** **23 PROCURATOR, ERNAKULAM-ANKAMALY ARCH-DIOCESE, ARCH-BISHOP HOUSE, BROADWAY, ERNAKULAM, KOCHI-31.** - **24 ST.JOSEPH'S CHURCH, KARUKUNNU, KARUMALOOR VILLAGE, PARUR TALUK, REPRESENTED BY THE PRO VICAR.** - **25 ST.JOSEPH'S CHURCH, KARUKUNNU, KARUMALOOR VILLAGE, PARUR TALUK, REPRESENTED BY THE NADATHUKAIKARAN.** - **26 ST.MARY'S CHURCH, ALANGAD, KARUMALOOR VILLAGE, PARUR TALUK, PIN-683 511, REPRESENTED BY THE VICAR.** - **27 ST MARY'S CHURCH, ALANGAD, KARUMALOOR VILLAGE, PARUR TALUK, PIN-683 511, REPRESENTED BY NADATHUKAIKARAN.** **BY ADVS.** **CAROLIN SINDHU VAZ G.BAIJU JOHN JOSEPH VETTIKAD C.JOSEPH JOHNY.** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22.03.2022, THE COURT ON 25.03.2022 DELIVERED THE FOLLOWING:** O.P(C).No.10/2022 5 ## _**A. BADHARUDEEN, J.**_ ================================ _O.P(C).No.10 of 2022_ ================================ _Dated this the 25[th] day of March, 2022_ ## _**J U D G M E N T**_ Being aggrieved in the matter of dismissal of I.A.No.15/2021 as per order dated 08.12.2021, plaintiff in O.S.No.98/2017 on the file of the Munsiff Court, North Paravoor, has filed this Original Petition under Article 227 of the Constitution of India. 2. Heard the learned counsel on both sides. 3. While arguing this matter, the learned counsel for the petitioner submitted that though the petitioner sought for examination of witness Nos.1 to 18, the court below allowed to examine the witnesses excluding witness Nos.3, 4, 5, 6, 10, 11, 14, 15, 16 and 18. However, the learned counsel submitted that the O.P(C).No.10/2022 6 petitioner would be satisfied if the petitioner is permitted to examine witness Nos.3 to 6 in the list also, in addition to the other witnesses permitted to be examined by the Munsiff Court. 4. The learned counsel for the respondents zealously opposed examination of witness No.3, while conceding that he has no objection in examining witness Nos.4 to 6. 5. It is argued by the learned counsel for the petitioner that third witness in the schedule was the Auxiliary Bishop of the Ernakulam-Angamali Diocese and he held the said post prior to his atonement as such in the Diocese of Mandya, Karnataka. Therefore, it is submitted that status of witness No.3 is as that of the defendant and the plaintiff has no right as such to examine a party to the Suit. 6. Whereas the learned counsel for the petitioner urged that witness No.3 sought to be examined to prove a vital document, which he authored and therefore, his examination is absolutely O.P(C).No.10/2022 7 necessary. It is submitted further that witness No.3 is not a defendant in this case. Therefore, examination of witness No.3 also is liable to be permitted by modifying the order. 7. Relying on the decision reported in [1963 KHC 143 : 1963 KLT 537], _**Narayana Pillai v. Kalliyani Amma;**_ and [2012 (3) KHC 386 : 2012 (3) KLT SN 114 : 2012 (3) KLJ 552], _**Kalliyara Estates Pvt. Ltd., Padinjaremuri v. State of Kerala & Ors.**_ , the learned counsel for the respondents urged that the plaintiff has no right to have the defendant examined as a witness. The legal position is not in dispute on the point that no right is vested in a party to summon the opposite party as a witness. However, the court is not powerless in the matter of regulating the proceedings and summoning and examining a party as a witness. 8. Coming to the facts of the case, witness No.3 is not, in fact, arrayed as a defendant in this case. When the plaintiff wants to examine witness No.3 to prove a vital document in the case, O.P(C).No.10/2022 8 there is no reason to disallow the same. 9. Therefore, I am of the view that witness No.3 also can be permitted to be examined in this matter. In view of the matter, the order impugned is modified and it is ordered that the court below shall summon and examine witness Nos.3 to 6, in addition to the other witnesses already permitted by the learned Munsiff. The Original Petition is allowed as indicated above. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ O.P(C).No.10/2022 9 ## **APPENDIX OF OP(C) 10/2022** ## **PETITIONER'S EXHIBITS** **Exhibit P1 TRUE COPY OF THE PLAINT DATED 12.2.2017 AS AMENDED BY THE ORDER DATED 2.8.2021 IN I A NO.4/2021 IN O.S NO.98/2017 OF THE MUNSIFF'S COURT, NORTH PARAVOOR. Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT DATED 3.6.2017 FILED BY THE 26[TH] DEFENDANT IN O.S NO.98/2017 PENDING BEFORE THE MUNSIFF'S COURT, NORTH PARAVOOR. Exhibit P3 TRUE COPY OF THE ADOPTION STATEMENT DATED 3.6.2017 FILED BY THE 21[ST] DEFENDANT IN O.S NO.98/2017 PENDING BEFORE THE MUNSIFF'S COURT, NORTH PARAVOOR. Exhibit P3(a) TRUE COPY OF THE ADOPTION STATEMENT DATED 3.6.2017 FILED BY THE 22[ND ] DEFENDANT IN O.S NO.98/2017 PENDING BEFORE THE MUNSIFF'S COURT, NORTH PARAVOOR. Exhibit P3(b) TRUE COPY OF THE ADOPTION STATEMENT DATED 3.6.2017 FILED BY THE 23[RD] DEFENDANT IN O.S NO.98/2017 PENDING BEFORE THE MUNSIFF'S COURT, NORTH PARAVOOR. Exhibit P3(c) TRUE COPY OF THE ADOPTION STATEMENT DATED 3.6.2017 FILED BY THE 27[TH] DEFENDANT IN O.S NO.98/2017 PENDING BEFORE THE MUNSIFF'S COURT, NORTH PARAVOOR. Exhibit P4 TRUE COPY OF I.A NO. 1/2021 DATED 8/4/2021 IN O.S NO.98/2017 PENDING BEFORE THE MUNSIFF'S COURT, NORTH PARAVOOR. Exhibit P5 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 28/9/2021 FILED BY THE 18[TH] RESPONDENT IN I.A NO.1/2021 IN O.S NO.98/2017 PENDING BEFORE THE MUNSIFF'S COURT, NORTH PARAVOOR.** O.P(C).No.10/2022 10 - **Exhibit P6 TRUE COPY OF THE ORDER DATED 15.11.2021 IN I.A NO.1/2021 IN O.S NO.98/2017 OF THE MUNSIFF'S COURT, NORTH PARAVOOR.** - **Exhibit P7 TRUE COPY OF THE PETITION DATED 16.11.2021 IN I.A NO.15/ IN OS NO.98/2017 PENDING BEFORE THE MUNSIFF'S COURT, NORTH PARAVOOR.** - **Exhibit P8 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 22.11.2021 FILED BY THE 18[TH ] RESPONDENT IN I.A NO.15/2021 IN O.S NO.98/2017 PENDING BEFORE THE MUNSIFF'S COURT, NORTH PARAVOOR.** - **Exhibit P9 TRUE COPY OF THE ORDER DATED 9.12.2021 IN I.A NO.15/2021 IN O.S NO.98/2017 PENDING BEFORE THE MUNSIFF'S COURT, NORTH PARAVOOR.** - **Exhibit P10 TRUE COPY OF THE EXHIBIT A17 (LETTER DATED 19.2.2007 OF MAR SEBASTIAN ADAYANTHRATH WITH COMMISSION REPORT DATED 16.2.2007 AND COPY OF THE LETTER DATED 27.1.2007 OF MAR SEBASTIAN ADAYANTHRATH) IN O.S NO.98/2017 PENDING BEFORE THE MUNSIFF'S COURT, NORTH PARAVOOR.** - **Exhibit P11 TRUE COPY OF EXHIBIT A18 (PLAN DATED 5.3.2007 WITH CALCULATION SHEET APPROVED) IN O.S NO.98/2017 PENDING BEFORE THE MUNSIFF'S COURT NORTH PARAVOOR.** - **Exhibit P12 TRUE COPY OF EXHIBIT A54 (THE DECREE DATED 2.4.2008 CS/ALND/3 ISSUED BY MAR SEBASTIAN ADAYANTHRATH, AUXILIARY BISHOP) IN O.S NO.98/2017 PENDING BEFORE MUNSIFF'S COURT, NORTH PARAVOOR.** **Exhibit P13 TRUE COPY OF THE ORDER DATED 9.12.2021 IN I.A NO.16/2021 OF THE MUNSIFF'S COURT NORTH PARAVOOR.**