NABEESA v. RAJEEV and ANEESH

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 14TH DAY OF NOVEMBER 2017/23RD KARTHIKA, 1939** ## **OP(C).No. 3001 of 2017 (O)** **--------------------------IA. NO. 1988/2017 IN OS 423/2013 OF MUNSIFF COURT, OTTAPALAM ------------** ## **PETITIONER//PETITIONER :** **--------------------------------------** **NABEESA, AGED 55 YEARS, D/O. ABDUL RAHIMAN, RAHMAN MANZIL, PALAPPURAM, OTTAPALAM.** ## **BY ADV. SRI.L.RAJESH NARAYAN** ## **RESPONDENTS/RESPONDENTS :** **-----------------------------------------------** **1. RAJEEV, AGED 27 YEARS, S/O. RADHAKRISHNAN, SREERAGAM, MELAMURI, NEYKAKKARA STREET, VADAKKANTHARA, PALAKKAD - 678081.** **2. ANEESH, AGED 29 YEARS, S/O. SWAMINATHAN, KRISHNA NIVAS, SELVINAGAR, VADAKKANTHARA, PALAKKAD-678081.** ## **R1 & R2 BY ADV. SRI.NIREESH MATHEW** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 14-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** ## **OP(C).No. 3001 of 2017 (O) -------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ------------------------------------EXHIBIT P1: TRUE COPY OF THE PLAINT DATED 5.11.2013. EXHIBIT P2: TRUE COPY OF THE WRITTEN STATEMENT DATED 10.6.14. EXHIBIT P3: TRUE COPY OF I.A NO.1659/2017. EXHIBIT P4: TRUE COPY OF THE OBJECTION TO EXT. P3. EXHIBIT P5: TRUE COPY OF THE IA DATED 22.8.2017. EXHIBIT P6: TRUE COPY OF THE ORDER DATED 24.8.17. EXHIBIT P7: TRUE COPY OF THE ORDER DATED 24.8.2017 IN IA NO.1661/2012 (WRONGLY TYPED FOR 2017). EXHIBIT P8: TRUE COPY OF IA NO.1659/17 DATED 23.9.17. EXHIBIT P9: TRUE COPY OF THE ORDER DATED 23.9.2017. EXHIBIT P10: TRUE COPY OF THE IA DATED 4.10.2017. EXHIBIT P11: TRUE COPY OF THE OBJECTION DATED 4.10.2017. EXHIBIT P12: TRUE COPY OF THE ORDER DATED 11.10.2017.** **RESPONDENT(S)' EXHIBITS : NIL.** **//TRUE COPY//** **P.A. TO JUDGE** **bp** **ANIL K. NARENDRAN, J. ----------------------------------------------O.P(C) No.3001 of 2017 -----------------------------------------------** Dated this the 14th day of November, 2017 ## **J U D G M E N T** The petitioner, who is the plaintiff in O.S.No.423 of 2013 on the file of the Munsiff's Court, Ottapalam is before this Court in this original petition filed under Article 227 of the Constitution of India, seeking an order to set aside Ext.P9 order dated 23.9.2017 in I.A.No.1865 of 2017 in O.S.No.423 of 2013 and Ext.P12 order dated 11.10.2017 in I.A.No.1988 of 2017 in O.S.No.423 of 2013. 2. On 16.10.2017, when this original petition came up for admission, this Court issued urgent notice by special messenger to the respondents. This Court has also directed the Registry to get a report from the Munsiff's Court, Ottapalam as to the present status of O.S.No.423 of 2013. Pursuant to the said order, a report dated 17.10.2017 has been received, wherein it has been stated that O.S.No.423 of 2013, which is jointly tried along with O.S.No.491 of 2013, was posted for hearing on 17.10.2017. The said cases stand adjourned to 26.10.2017. 3. On 26.10.2017, this Court ordered that final disposal of O.P.(C)No.3001 of 2017 :-2-: the suit shall be deferred for a period of one week and the said interim order was extended by ten days on 3.11.2017. 4. Heard the learned counsel for the petitioner/plaintiff in O.S.No.423 of 2013 and also the learned counsel for the respondents/defendants in that suit. 5. The sole issue that arises for consideration in this original petition is as to whether any interference is warranted on Exts.P9 and P12 orders passed by the court below in I.A.Nos.1865 of 2017 and 1988 of 2017 in O.S.No.423 of 2013, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. 6. O.S.No.423 of 2013 filed by the petitioner/plaintiff is one for cancellation of document Nos.5336/1/2012 and 5337/1/2012 in respect of the plaint schedule property and for consequential injunction against the respondents/defendants. The respondents/defendants filed O.S.No.491 of 2013 against the petitioner/plaintiff seeking recovery of possession of the aforesaid property and both suits are being tried jointly. O.P.(C)No.3001 of 2017 :-3-: 7. On 11.7.2017, both the suits were listed for trial. On the date of trial, the petitioner/plaintiff filed I.A.No.1241 of 2017 in O.S.No.423 of 2013 seeking adjournment. The said application was allowed and the suits were listed to 13.7.2017. On that day, the matter was referred for mediation as it was submitted on behalf of both sides that there is a chance of settlement. Accordingly, the case was listed to 18.7.2017 for plaintiff's evidence, if the matter is not settled. On that day, the plaintiff was absent and therefore, the court below dismissed the suit for default. Later, as per order dated 22.7.2017 in I.A.No.1324 of 2017, the suit was restored to file and posted for plaintiff's evidence to 25.7.2017. 8. On 25.7.2017, the case was adjourned to 1.8.2017 as the learned counsel for the defendant sought adjournment. On 1.8.2017, the plaintiff was examined and the case was posted for further evidence of the plaintiff to 4.8.2017. On that day, the counsel for the plaintiff sought adjournment and the case was posted to 9.8.2017. On that day it was adjourned to 10.8.2017 on request. The plaintiff again sought adjournment and the case was O.P.(C)No.3001 of 2017 :-4-: adjourned on payment of a cost of 500/- to 17.8.2017. On₹ 17.8.2017, the suit was adjourned at the request of the plaintiff to 21.8.2017 on payment of a cost of 1,000/-. ₹ 9. On 21.8.2017, PW2 was examined. After closing plaintiff's evidence, the case was posted to 22.8.2017 for defendant's evidence. On that day, the plaintiff filed I.A.No.1659 of 2017 seeking an order to reopen the evidence. On 24.8.2017, the said interlocutory application was allowed on payment of a cost of ₹2,000/- and the case was posted to 26.8.2017. On that day, as the cost was not paid, I.A.No.1659 of 2017 was dismissed. The plaintiff filed I.A.No.1719 of 2017 to adjourn the case, which was also dismissed. Thereafter, the case was posted to 29.8.2017 for defendant's evidence. 10. On 29.8.2017, plaintiff filed I.A.No.1727 of 2017 for adjournment on the personal inconvenience of the counsel and accordingly, the case was adjourned to 15.9.2017. On that day the case was again adjourned to 23.9.2017 on the ground that the father of the plaintiff's counsel passed away. On 23.9.2017, the O.P.(C)No.3001 of 2017 :-5-: plaintiff filed I.A.No.1865 of 2017 seeking an order to restore I.A.No.1659 of 2017, which was dismissed on 26.8.2017 by Ext.P9 order, since no reason has been stated in I.A.No.1865 of 2017 as to why the cost was not paid in time. 11. I.A.No.1988 of 2017 is one filed by the plaintiff seeking an order to recall DW1. The said interlocutory application, a copy of which is marked Ext.P10, is supported by an affidavit sworn to by the learned counsel for the plaintiff in O.S.No.423 of 2013. In the said affidavit, it is stated that as the court did not grant time to examine witness on the side of the plaintiff, he could not examine the witnesses. While the matter was listed for trial, the father as well as mother-in-law of the plaintiff's counsel passed away due to serious illness. For the said reason, witnesses on the side of the plaintiff could not be produced in time. Though the above reasons were stated, the court did not take into consideration those facts and dismissed the application. Further, at the time of defendant's evidence, the plaintiff's counsel was not given a copy of the proof affidavit in advance. The counsel was also not informed about who O.P.(C)No.3001 of 2017 :-6-: was going to be examined on that day and the first defendant in O.S.No.423 of 2013 mounted the box. The court directed the plaintiff's counsel to cross-examine the witness even without granting an opportunity to go through the proof affidavit. During cross examination, the defendant's counsel interfered with and submitted that the first defendant, not being a party to O.S.No.491 of 2013, is not aware of the facts of that case. Therefore, the second defendant will be examined as a witness and questions can be put to him. Believing the words of the defendant's counsel, the plaintiff's counsel restricted cross-examination of the first defendant. However, the second defendant was not examined as a witness. While going through the proof affidavit of the first defendant, the plaintiff's counsel came to know that the submission made by the defendant's counsel before the court was untrue and therefore, the plaintiff filed I.A.No.1988 of 2017 seeking an order to recall DW1, for putting certain relevant questions. 12. After considering the rival contentions, the court below noticed that in the affidavit of the plaintiff's counsel filed in support O.P.(C)No.3001 of 2017 :-7-: of I.A.No.1988 of 2017 contains all sorts of wrong imputations against the court. Further, the reason put forth by the plaintiff for recalling DW1 is that the plaintiff's counsel was carried away by the words of the defendant's counsel that the second defendant will be examined as a witness. After noticing the fact that DW1 has been cross examined at length, the court below dismissed I.A.No.1988 of 2017 with cost, by Ext.P12 order, stating that there is no reason that warrants recalling of DW1 and that, the filing of the said interlocutory application can only be viewed as delay tactics. 13. In the original petition it is contended that, the court below dismissed Ext.P10 application by a 'cryptic' order. The term 'cryptic' means 'with a hidden meaning or a meaning not easily seen'. A bare perusal of Ext.P12 order would show that, the court below after considering the rival contentions dismissed Ext.P10 application stating that there is no reason that warrants recalling of DW1 and that, the filing of I.A.No.1988 of 2017 can only be viewed as delay tactics. Ext.P12 order cannot be said to be a O.P.(C)No.3001 of 2017 :-8-: 'cryptic' order or even an order passed without application of mind. Therefore, the contention of the petitioner that the court below dismissed Ext.P10 application by a 'cryptic' order can only be repelled. 14. Order XVIII, Rule 4 of the Code of Civil Procedure, 1908 deals with recording of evidence. Sub-rule (1) of Rule 4 provides that, in every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. Going by the proviso to sub-rule (1), where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the court. Rule 53 of the Civil Rules of Practice, 1971 which deals with filing of affidavits in court provides that, except with the leave of the court, no affidavit which has not been filed in court and of which copy has not been given to the opposite side at least three days before the hearing shall be used in any matter. 15. In **Safiya v. Mammu [2005 (4) KLT 223]** a learned O.P.(C)No.3001 of 2017 :-9-: Judge of this Court held that after the amendment of the Code of Civil Procedure, 1908 examination of parties and witnesses in court has become an exception and their examination by issuing commission has become the rule. Necessarily, proof affidavits of the parties have to be filed under Rule 4 of Order XVIII of the Code. The cross examination of the witnesses takes place on the basis of the proof affidavit. The proof affidavit is in lieu of examination in chief. In appropriate cases the Court may take evidence of a party or witness in open court. It is just and proper to grant a breathing time to the opposite party to go through the proof affidavit and get ready for the cross examination of the party or witness concerned. For that purpose, there is nothing wrong in following a uniform practice of insisting the filing of the proof affidavit within a stipulated time before the examination of the party or witness. The Rules do not provide for any period within which the proof affidavit should be filed. In the absence of a specific provision in the Rule, it is in the realm of the discretion of the court. The discretion is to be exercised not arbitrarily or O.P.(C)No.3001 of 2017 :-10-: capriciously. In a given case, a litigant may not be able to produce proof affidavit well before the date fixed for examination. That need not be a ground for rejecting his case on merits. After all, filing of the proof affidavit is a prelude to the examination of that witness in cross examination. Had the amendment been not there, the examination in chief of the party would be taken in open court and on that day itself the cross examination also would be insisted. So the view taken by the trial court that since the proof affidavit was not filed before three days it is liable to be rejected, is hypertechnical, which has resulted in miscarriage of justice. The trial court should have granted a day's adjournment if the opposite party wanted time on the ground that the proof affidavit was not filed earlier. In the said decision, this Court held further that, in appropriate cases, the court will be justified in awarding costs to the opposite party, as a condition for accepting the proof affidavit filed belatedly. The subordinate courts should take a pragmatic approach in this matter and afford reasonable and meaningful opportunity to the parties to file proof affidavit. At the same time, O.P.(C)No.3001 of 2017 :-11-: the litigants and counsel appearing for them also owe a duty to the court to cooperate with the court for the smooth trial and disposal of the case, by filing the proof affidavit and other particulars well within time. 16. In the instant case, the first defendant in O.S.No.423 of 2013 mounted the box on 28.9.2017. The fact that a copy of the proof affidavit of the first defendant, who was examined as DW1, was given to the plaintiff's counsel only on 28.9.2017 in not in dispute. In such circumstances, I deem it appropriate to set aside Ext.P12 order dated 11.10.2017 and allow I.A.No.1988 of 2017 in O.S.No.423 of 2013 filed by the petitioner/plaintiff for recalling DW1, as prayed for. 17. Now, coming to the challenge made against Ext.P9 order dated 23.9.2017 in I.A.No.1865 of 2017 in O.S.No.423 of 2013 is concerned, the plaintiff's evidence was closed on 21.8.2017 after the examination of PW2 and the case was listed to 22.8.2017 for defendant's evidence. On that day, the plaintiff filed I.A.No.1659 of 2017 seeking an order to reopen the evidence, O.P.(C)No.3001 of 2017 :-12-: which was allowed on 24.8.2017, on payment of a cost of ₹ 2,000/-, and the case was posted to 26.8.2017. As the cost was not paid, I.A.No.1659 of 2017 was dismissed on 26.8.2017 and the case was listed to 29.8.2017 for defendant's evidence. On 29.8.2017, plaintiff filed I.A.No.1727 of 2017 for adjournment and accordingly, the case was adjourned to 15.9.2017. On that day the case was again adjourned to 23.9.2017 on the ground that the father of the plaintiff's counsel passed away. On 23.9.2017, the plaintiff filed I.A.No.1865 of 2017 seeking an order to restore I.A.No.1659 of 2017, which was dismissed on 26.8.2017 by Ext.P9 order, since no reason has been stated in I.A.No.1865 of 2017 as to why the cost was not paid in time. 18. In **Abdul Khader v. Surburban Chit Funds (P) Ltd. (2006 (1) KLT 749)** this Court held that, delay in the judicial process will only be further aggravated if this Court by invoking the powers under Article 227 of the Constitution of India were to show undeserved indulgence to parties to a civil suit. An incorrect impression has gained ground that any and every error, O.P.(C)No.3001 of 2017 :-13-: inadequacy and contumacious lethargy in the conduct of civil cases can be corrected at later stages by approaching the superior courts. Law is for the alert. Justice can be claimed only by those who pursue the avenues open to them with diligence. 19. A copy of I.A.No.1865 of 2017 filed for restoration of I.A.No.1659 of 2017 is placed on record as Ext.P8. A reading of the affidavit in support of Ext.P8 application would show that, the said affidavit has been drafted in a casual manner harbouring the notion that the courts are required to restore an interlocutory application dismissed for non-payment of cost, based on such an application filed within the prescribed time limit, on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. As rightly noticed by the court below, no reason has been stated in the affidavit in support of Ext.P8 application as to why the cost ordered in I.A.No.1659 of 2017 was not paid in time. Further, as borne out from paragraph 7 of Ext.P9 order, the trial of the suit was adjourned on several occasions at the instance of the petitioner/plaintiff. O.P.(C)No.3001 of 2017 :-14-: 20. However, considering the facts and circumstances of the case I deem it appropriate to set aside Ext.P9 order dated 23.9.2017 in I.A.No.1865 of 2017 in O.S.No.423 of 2013 on payment of a cost of **Rs.20,000/-** payable to the respondents/ defendants in O.S.No.423 of 2013, as against the cost of **Rs.2,000/-** ordered to be paid in I.A.No.1659 of 2017 in O.S.No.423 of 2013. On such payment being made, within **three weeks** from the date of receipt of a certified copy of this judgment, I.A.No.1865 of 2017 in O.S.No.423 of 2013 will stand allowed thereby restoring I.A.No.1659 of 2017 in O.S.No.423 of 2013. This original petition is disposed of as above. Sd/- **ANIL K. NARENDRAN JUDGE** //True Copy// P.A to Judge ab