N.K. Jayakumar v. M/s Aswani Apparels Priceless Shop and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 28[TH] DAY OF MAY 2024 / 7TH JYAISHTA, 1946 ``` ## **`OP(C) NO. 471 OF 2024`** ``` AGAINST THE ORDER DATED 23.01.2024 IN I.A. NO.1263/2019 IN OS NO.18 OF 2015 OF ASSISTANT SESSIONS COURT/II ADDITIONAL SUB COURT,ERNAKULAM ``` ## **`PETITIONER/2ND RESPONDENT/DEFENDANT:`** ``` N.K.JAYAKUMAR AGED 48 YEARS S/O.V.G. KUMARAN NAIR, 'REVATHY' HOUSE, KURUMASSERY P.O, OPP. BETHRONY SEMINARY, EMAKULAM DISTRICT, PIN - 683579 ``` ``` BY ADVS. BOBBY MATHEW KOOTHATTUKULAM V.S.ARCHANA CHANDRAN ``` ## **`RESPONDENTS/PETITIONER AND RESPONDENT 1 &3/PLAINTIFF AND`** ``` DEFENDANTS 1 &3: ``` - **`1 M/S. ASWANI APPARELS PRICELESS SHOP, VYTILLA, ERNAKULAM, A REGISTERED PARTNERSHIP FIRM REPRESENTED BY ITS PARTNER SUSHIL D. ASWANI, AGED 39 YEARS., PIN - 682019`** - **`2 SUDHEESH NARAYANAN AGED 62 YEARS`** - **`S/O. LATE ANANTHA KRISHNA IYER RESIDING AT AVITTOM, KADAVANTHRA, COCHIN-682020. NOW RESIDING AT MADAMPADY KIZHEKKE MADOM, MANCOMPU KARA, PULINKUNNU VILLAGE, KUTTANAD TALUK, ALLEPPEY DISTRICT,, PIN - 688502`** - **`3 SMT. NIRMALA SISUPALAN AGED 47 YEARS W/O. T.C SLSUPALAN, THACHAITH HOUSE, NEAR ST JOHN'S HOSPITAL, UDAYAMPEROOR, SOUTH PARAVOOR, ERNAKULAM DISTRICT, PIN - 682307`** 2 ## **OP(C) No. 471 of 2024** ``` BY ADVS. A.T.ANILKUMAR A.T. B.RENJITHKUMAR P.M.NATESAN(K/000569/1987) CLARA SHERIN FRANCIS(K/638/2020) SANGEERTHANA M.(K/002738/2022) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 **OP(C) No. 471 of 2024** **Dated this the 28[th] day of May, 2024** ## **JUDGMENT** This Original Petition has been filed challenging Ext.P8 order passed by the Sub Court, Ernakulam (for short 'the trial court') allowing an application under Order 18 Rule 17 of the Code of Civil Procedure (for short C.P.C.) to recall PW1. 2. The original petitioner is the defendant and the respondents are the plaintiff and defendants 1 and 3 respectively in O. S. No.18/2015 before the trial court. The case of the plaintiff was that the defendants 1 to 3 while working as assistant manager, showroom manager and supervisor in the plaintiff's firm misappropriated a sum of Rs.15,52,500/- (Rupees fifteen lakh fifty two thousand and five hundred only). It is to realise the said amount, the suit has been instituted. The plaintiff was examined as PW1. Thereafter, the petitioner herein was examined as DW2. When DW2 was examined, the original of the register of 4 ## **OP(C) No. 471 of 2024** wages extracted for the period from 01.12.2012 to 31.12.2012 in respect of defendants 1 to 3 were shown to him and the question regarding their names, designations and signatures mentioned in the wage extract were put. He admitted their designations seen in the register of wage extract, but denied their signatures. Thereafter, the plaintiff produced the original of the register of wage extract for the above period and filed Ext.P4 application to recall and reopen the evidence of PW1 and also to mark the registers produced. The trial court as per Ext.P8 order allowed Ext.P4 application. It is challenging the said order, this Original Petition has been filed. 3. I have heard Sri.Bobby Mathew Koothattukulam, the learned counsel for the petitioner and Sri. A. T. Anilkumar and Sri. B. Renjithkumar for the respondents 1 and 2, respectively. 4. As per Order 18 Rule 17 of C.P.C., the court is empowered to recall any witness who has been already examined at any stage of the suit, if it is necessary for the 5 ## **OP(C) No. 471 of 2024** just decision of the case. The learned counsel for the petitioner relying on two judgments of the Supreme Court of India in **Velusamy K. K. vs. N. Palanisamy** [2011 KHC 4302] and **Vadiraj Naggappa Vernekar (D) Through Lrs.** **vs. Sharad Chand Prabhakar Gogate** [2009 KHC 4539] submitted that Order 18 Rule 17 of C.P.C. application cannot be allowed as a matter of routine and the said provision cannot be used to fill up the omissions in the evidence of a witness who has already been examined. In **Velusamy K. K.** (supra), it was held that the power under Order 18 Rule 17 C.P.C. is not intended to be used routinely, merely for the asking. However, it was observed that where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. In **Vadiraj Naggappa Vernekar** (supra), it was 6 **OP(C) No. 471 of 2024** held that the main purpose of the Order 18 Rule 17 of C.P.C. 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 plaintiffs and the said provisions are not intended to be used to fill up the omissions in the evidence of a witness who has already been examined. There is no dispute with regard to the said legal propositions. 5. As stated already, the definite case of the plaintiff is that the defendants while working as assistant manager, showroom manager and supervisor in the plaintiff company during the period from 23.06.2005 to 11.05.2013 misappropriated a sum of Rs.15,52,500/-(Rupees fifteen lakh fifty two thousand and five hundred only). In the written statement filed by the defendants 1 to 3 they contended that they never worked as assistant manager, showroom manager and supervisor respectively in the plaintiff's firm or during the alleged period and they never verified participated in the stock verification. The document now sought to be produced is the original of the register of wage 7 **OP(C) No. 471 of 2024** extract for the disputed period. This document was confronted to DW2 when he was in dock. In fact, he admitted certain entries in the said documents. However, he disputed his signature as well as the signature of the remaining defendants. Since the issue involved in the case is whether the defendants 1 to 3 had misappropriated amount while they were working in various capacity in the plaintiff's firm, the document which would show that the defendants were working in the plaintiff's firm during the relevant period is, no doubt, a material document. The learned counsel for the petitioner submitted that the respondents could have produced the document earlier or along with the plaint. The defendants or a party to the suit has every right to confront a document to a witness while he is in the dock. The document not sought to be produced is a document which is confronted to DW2 while he was in the dock. Though he admitted certain entries regarding the names and designations of the defendants 1 to 3 in the said document, he denied the signatures. Hence, the plaintiff felt it 8 **OP(C) No. 471 of 2024** necessary to produce the document before the court. It is not a case where the document now sought to be produced is to fill up the lacuna in the evidence. That apart, the trial court rightly found that the said document is necessary for the just decision in the case. I see no illegality or impropriety in the impugned order. Accordingly, this original petition is dismissed. ## **Sd/-** **DR. KAUSER EDAPPAGATH** **JUDGE** BR 9 **OP(C) No. 471 of 2024** ## **`APPENDIX OF OP(C) 471/2024`** ``` PETITIONER’S EXHIBITS Exhibit P1 ``` ``` TRUE COPY OF THE PLAINT IN O.S.18/2015 DATED 09.01.2015 ``` ``` Exhibit P2 ``` ``` TRUE COPY OF THE JOINT WRITTEN STATEMENT FILED BY THE DEFENDANTS 1 AND 2 IN O.S.NO.18/2015 DATED 18.06.2015 ``` ``` Exhibit P3TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT DATED 05.12.2017 FILED BY THE 2ND DEFENDANT ``` - **`Exhibit P4`** - **`Exhibit P5`** - **`TRUE COPY OF I.ANO.1263/2019 DATED 20.03.2019 FILED IN O.S.NO.18/2015`** - **`TRUE COPY OF THE REGISTER OF WAGES FROM 01.12.2012 TO 31.12.2012 ALONG WITH ADDITIONAL LI.ST OF DOCUMENTS DATED 20.12.2019 IS PRODUCED ALONG WITH EXHIBIT P5`** - **`Exhibit P6 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER DATED 04.04.2019 TO EXHIBIT P4 PETITION`** - **`Exhibit P7 TRUE COPY OF THE ADDITIONAL COUNTER AFFIDAVIT FILED BY THE PETITIONER DATED 20.07.2023`** - **`Exhibit P8 TRUE COPY OF THE ORDER OF THE SECOND ADDITIONAL SUB COURT IN EXHIBIT P4 APPLICATION DATED 23.01.2024`** - **`Exhibit P9 TRUE COPY OF DEPOSITION OF PW1 IN EXHIBIT P1 SUIT INCLUDING HIS PROOF AFFIDAVIT DATED 06.03.2019`** - **`Exhibit P10 TRUE COPY OF THE DEPOSITION OF DW2 IN EXHIBIT P1 SUIT ALONG WITH PROOF AFFIDAVIT DATED 18.03.2019`** ``` RESPONDENT’S EXHIBITS: NIL ```