M.K. Chellappan Nair v. Kerala State Electricity Board Ltd

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **MONDAY, THE 16TH DAY OF MARCH 2020 / 26TH PHALGUNA, 1941** ## **OP(C).No.753 OF 2020** **AGAINST THE ORDER/JUDGMENT IN OS 147/88 OF SUB COURT, THODUPUZHA** ## **PETITIONER/S:** **M.K.CHELLAPPAN NAIR AGED 70 YEARS S/O KRISHNAN NAIR, RESIDING AT MURUKASADHANAM HOUSE, MOOLAMATTOM KARA,ARAKULAM VILLAGE, THODUPUZHA TALUK,IDUKKI DIST.** **BY ADVS. SRI.TOM THOMAS (KAKKUZHIYIL) SRI.JOJU KYNADY SRI.A.ABDUL NABEEL** ## **RESPONDENT/S:** **1 KERALA STATE ELECTRICITY BOARD LTD REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM,PATTOM, THIRUVANANTHAPURAM,PIN-695004. 2 THE EXECUTIVE ENGINEER, GENERATION CIRCLE,KSEB, MOOLAMATTOM,IDUKKI DIST, PIN-685589.** ## **OTHER PRESENT:** ## **SRI. ARUN V.G, RESPONDENTS** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(C).No.753/2020** -2- ## **JUDGMENT** **In this Original Petition, the prayer is to set aside Ext.P3 order passed by the court below allowing I.A.No.6/2020 permitting the respondents herein to reopen the evidence for the purpose of reexamination of PW1.** **2. Heard.** **3. The respondents herein filed the above Interlocutory Application under Order** **18 Rule 17 CPC praying for re-opening plaintiff's evidence for the purpose of further examination of PW1. It is contended that when PW1 was examined, he failed to clarify the fact that there is a building in plaint A schedule property and the erstwhile** ## **OP(C).No.753/2020** -3- **building in the B schedule property had been already demolished. To a suggestion by the defence that there are about 30 buildings in the property acquired vide L.A.81/1964, PW1 failed to give the answer that there are only seven buildings including, temple, KSEB Section Office, Arakulam and Fire Force Office. The respondents also wanted to make a correction in the affidavit filed in lieu of the chief-examination, to the effect that the extent of B schedule property is 9.192 cents instead of 9.182 cents.** **4. The learned counsel for the** **petitioner relied on the decisions of the Apex Court in Vadiraj Naggappa Vemekar (D) Through Lrs. v. Sharad Chand Prabhakar [AIR** ## **OP(C).No.753/2020** -4- **2009 SC 1604] and Ram Rati v. Mange Ram (D) Through Lrs. and Others [AIR 2016 SC 1343] and argued that the court below had no jurisdiction to allow the application filed under Order 18 Rule 17 CPC by a party as the court alone is having the power to do so without filing any such application by the party.** **5. The Apex Court in Vadiraj Naggappa Vemekar (supra) held that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the court either on its own motion or on the application filed by any of the parties to the suit.** **6. The Hon'ble Apex Court in Ram Rati (supra) held that to clarify any** ## **OP(C).No.753/2020** -5- **position or doubt, the court may either** _**suo motu**_ **or on the request of any party, recall any witness at any stage in that regard. It is a discretionary power of the court, which has to be used only sparingly and in cases the court decides to invoke the provision, it should also see that the trial is not unnecessarily protracted on that ground. Both the above said decisions do not support the above said argument of the learned counsel for the petitioner.** **7. It is true that it is the discretion of the court to allow or dismiss** **the application. In this case, PW1 is only an Officer of the Kerala State Electricity Board, who was not present at the place** ## **OP(C).No.753/2020** -6- **during the period when the cause of action arose in this case. Therefore, when he had given evidence before the court, he could not state about the present nature of the property, particularly with regard to the buildings situated therein. Therefore, the present application was filed. The court below had recorded that the above application was necessitated on the reason that the said facts arose only during the cross-examination. It was further observed by the court below that the clarification of the same would only aid in the just dispensation of justice.** **8. The functioning of the court is to find out the truth. Truth is the foundation** ## **OP(C).No.753/2020** -7- **of justice. It must be the endeavour of all the Judicial Officers and the Judges to ascertain truth in every matter. Only when the truth triumphs, justice can be said to have been done. So, the endure of the court is to find out the truth. Therefore, since the court below felt that the application was not filed for the purpose of procrastination of the case and that the allowing of the application was necessary for the just dispensation of the case, the court below was justified in allowing the application.** **9. No material has been brought to the notice of this court to indicate that Ext.P3 suffers from any perversity or** **OP(C).No.753/2020** -8- **incorrectness, warranting interference by this Court. There is no allegation that the intention of filing the application was for the purpose of protracting the case. In this case, an Officer of the Kerala State Electricity Board, who was not directly connected with the issues involved in this case, was cited as a witness to give formal evidence for the Kerala State Electricity Board. The matters referred to in the application are the matters which could be stated only after verifying the records, as the said Officer was not connected with the issues involved in this case. Therefore, PW1 could not state the same at the time when he was crossexamined. However, in order to bring to light the** ## **OP(C).No.753/2020** -9- **truth, the Kerala State Electricity Board filed the above said application seeking for further examination of PW1. Having gone through the relevant inputs, I do not find anything justifying the interference of Ext.P3 by this Court.** **In the result, this Original Petition stands dismissed.** **Sd/-** **B. SUDHEENDRA KUMAR, JUDGE** STK **OP(C).No.753/2020** -10- ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPYOF THE I.A.NO.6/2020 IN O.S.NO.147 OF 1988 FILED BEFORE HON'BLE SUB COURT,THODUPUZHA.** **EXHIBIT P2 TRUE COPY OF THE OBJECTION FILED BY THE COUNTER PETITIONER/DEFENDANT IN I.A.NO.6/2020 IN O.S.NO.147/1988. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 10.03.2020 IN I.A.NO.6/2020 IN O.S.NO.147 OF 1988. EXHIBIT P4 TRUE COPY OF THE ADDITIONAL CHIEF AFFIDAVIT FILED BY PW1 IN O.S.NO.147 OF 1988.**