M/S. Mulamoottil Investments & Hire Purchase Mulamoottil Buildings vs K. Ramachandran Pillai

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY,THE 26TH DAY OF SEPTEMBER 2018 / 4TH ASWINA, 1940 OP(C).No. 2669 of 2017** **AGAINST THE ORDERS/JUDGMENTS IN IA NO.1561/2012 IN OS 41/1997 AND IA NO.1563/2012 IN OS 41/1997 of SUB COURT, PATHANAMTHITTA** ## **PETITIONER/S:/COUNTER PETITIONER/PLAINTIFF** **M/S. MULAMOOTTIL INVESTMENTS & HIRE PURCHASE MULAMOOTTIL BUILDINGS, KOZHENCHERRY MURI, KOZHENCHERRY VILLAGE, PATHANAMTHITTA689641,REPRESENTED BY JACOB THOMAS, PROPRIETOR.** **BY ADVS. SRI.ARUN.B.VARGHESE SRI.S.SREEKUMAR (SR.)** ## **RESPONDENT/S:/COUNTER PETITIONER/PLAINTIFF** **K. RAMACHANDRAN PILLAI AGED 72 YEARS, S/O KESAVA KURUP,VAZHAPPALLIL HOUSE, KOZHUVALLOOR MURI,MULAKKUZHA VILLAGE, CHENGANNUR TALUK,PATHANAMTHITTA DISTRICT - 689 121.** **BY ADV. SRI.K.S.MOHAMED HASHIM** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 30.7.2018, THE COURT ON 26.09.2018 PASSED THE FOLLOWING:** OP(C) 2669/2017 -2- ## J U D G M E N T The petitioner is the plaintiff in OS No.41/1997 on the file of Sub Court, Pathanamthitta. The suit is one for realisation of money with future interest based on a Promissory Note allegedly executed by the defendant, respondent herein. Copy of the plaint is at Ext.P1. The respondent/defendant contested and filed a written statement denying the borrowal as well as the execution of the Promissory Note. He also denied his signature and handwriting on the Promissory Note and alleged that it was a forged one. However, he admitted that there was a prior transaction between the them for a sum of Rs.1,00,000/- in the year 1994 and as security for the transaction, he had entrusted the plaintiff ten blank signed cheques, blank signed papers and also printed forms. The said transaction was already closed consequent to full payment being made by the defendant. However, there was a difference of opinion between them which resulted in several criminal cases being filed against the defendant for dishonour of cheques. The trial began. The plaintiff was OP(C) 2669/2017 -3- examined and IA No.442/2003 was filed by the defendant requesting the Promissory Note to be examined by a handwriting expert. The trial court allowed the application and the opinion that was obtained, went in favour of the plaintiff. The defendant also was examined as can be seen from the copy of the deposition of the defendant produced at Ext.P2. 2. After about ten years, consequent to the examination of the plaintiff and the defendant, the defendant filed two applications as IA Nos.1561 of 2012 (Ext.P3) and 1563 of 2012 (Ext.P4) for examination of the power of attorney holder of the plaintiff and to recall the plaintiff for cross-examination, respectively. It is stated in the affidavits accompanying the aforementioned applications that the defendant wants to confront that witness in cross examination, using photocopies of his depositions recorded in CC No.114/1997 before the Chief Judicial Magistrate's Court, Pathanamthitta. The plaintiff objected and filed written objections (Exts.P5 and P6) on both Exts.P3 and P4 applications. 3. After hearing both sides, the learned Sub Judge initially dismissed both the applications stating OP(C) 2669/2017 -4- that those are highly belated and filed with an intention to protract the proceedings. Challenging the said order OP(C) No.2068/2013 was filed before this Court and vide Ext.P7 judgment, this Court set aside that order and directed the trial court to re-consider those applications afresh, giving opportunity to both sides of being heard. The petitioner filed a review petition. But the same was not prosecuted. Subsequently, the trial court considered those applications afresh and vide Exts.P8 and P9 orders, allowed the applications. Those orders are very cryptic. The plaintiff is aggrieved by the same and hence challenges the orders before this Court. 4. Heard both sides. 5. The suit is being pending for more than two decades. The plaintiff and the defendant were already examined. It is at that stage that applications were filed by the defendant to examine the power of attorney holder of the plaintiff as an additional witness, as also to recall the plaintiff for the purpose of confronting them with their earlier depositions in CC 114/1997 on the file of the Chief Judicial Magistrate's court. The power of attorney holder of the plaintiff OP(C) 2669/2017 -5- was examined in a criminal case before the Chief Judicial Magistrate, and it is intended to confront him with a photocopy of his deposition. Photocopy of his deposition can never be let in evidence, for whatever reason it may be, and more over, defendant cannot insist on examination of the power of attorney holder of the plaintiff as a witness at this belated stage. Order XVIII Rule 17 of the Code of Civil Procedure is what is intended to be invoked. The provision is for recalling a witness, who has been examined, and putting such questions on him as the court thinks fit. A party cannot insist on recalling of the plaintiff for crossexamination. And examination of a new witness is not contemplated under the aforesaid provision. Hence, the defendant cannot, after examination of the witnesses of both sides are over, recall a witness to fill up a lacuna which has been created. The learned counsel for the petitioner relies on the decision in 2009 KHC 4539 [Vadiraj Naggappa Vernekar (D) through LRs v. Sharad Chand Prabhakar Gogate], where the Honourable Supreme Court has held thus: “16. In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the OP(C) 2669/2017 -6- parties for recall of witnesses, the main purpose of the said 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. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. As indicated by the learned Single Judge, the evidence now being sought to be introduced by recalling the witness in question, was available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared. In the instant case, Sadanand Shet was shown to have been actively involved in the acquisition of the flat in question and, therefore, had knowledge of all the transactions involving such acquisition. It is obvious that only after crossexamination of the witness that certain lapses in his evidence came to be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC.” 6. The learned counsel has also relied on the decision of a Division Bench of this Court in 2000 KHC 426 [Jortin Antony v. S.P.D.Marthanda Varma] , wherein it is held that a party to the suit does not have a right as such to summon the opposite party to give OP(C) 2669/2017 -7- evidence. It is really left to the court, possibly after the evidence of all the witnesses made available is completed, to consider whether the examination of one of the parties who has not come before court, is necessary and in that context if found necessary, to compel that party to give evidence in exercise of its jurisdiction under Order XIV Rule 16 of the CPC. What is sought by the defendant in this case is to compel the plaintiff to adduce evidence which he cannot. He did have his opportunity to cross-examine the plaintiff when he had let in evidence. 7. The standard of proof as required in a criminal case under Section 138 of the Negotiable Instruments Act is totally different from what is required in a civil suit for recovery of money. The defendant has raised a series of contentions, including total denial of execution of Promissory Note. He himself had taken initiative to get the Promissory Note examined by an expert to establish that he did not execute the Promissory Note. After having failed in his attempt because of the positive opinion by the expert, the defendant is bent upon protracting the litigation some way or the other. The learned Sub OP(C) 2669/2017 -8- Judge has not given any explanation about why the applications should be allowed. The order is very cryptic and hasty. Justification is not given. On examination of the entire facts and circumstances of the case, I find no reason whatsoever to allow the prayer of the petitioner in the IAs to recall either the plaintiff or his power of attorney holder for subjecting him to examination or further crossexamination. Hence, the Original Petition is only to be allowed and Exts.P8 and P9 orders are dismissed. No order as to costs. Being an old suit, the learned Sub Judge is directed to dispose of the suit as expeditiously as possible, at any rate, within a period of three months from the date of receipt of certified copy of this judgment. **Sd/-** **ASHOK MENON** **JUDGE** OP(C) 2669/2017 -9- ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF PLAINT DTD.31.3.1997 IN O.S NO.41 OF 1997 OF THE SUB COURT, PATHANAMTHITTA.** **EXHIBIT P2 TRUE COPY OF THE DEPOSITION OF THE RESPONDENT DATED 19.6.2003 IN EXT.P1 SUIT.** **EXHIBIT P3 TRUE COPY OF I.A NO.1561 OF 2012 DATED 14.2.2009 FILED IN EXT.P1 SUIT.** **EXHIBIT P4 TRUE COPY OF I.A NO.1563 OF 2012 DATED 14.9.2012** **EXHIBIT P5 TRUE COPY OF OBJECTION DTD.27.9.2012 IN EXT.P3** **EXHIBIT P6 TRUE COPY OF OBJECTION DTD.27.9.2012 IN EXT.P4** **EXHIBIT P7 TRUE COPY OF THE JUDGMENT DTD.17.2.2017 IN OP(C) NO.2068 OF 2013,. EXHIBIT P8 TRUE COPY OF ORDER DTD.9.8.2017 IN EXT.P3 EXHIBIT P9 TRUE COPY OF ORDER DTD.9.8.2017 IN EXT.P4** //TRUE COPY// PS TO JUDGE. jg