OP(C) No. 1640 of 2016 (O) in the High Court of Kerala at Ernakulam

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Ramakrishnan
Judgment Date: 2016-08-05
Court Decision / Holding: The petition is disposed of. The lower court is directed to include the case in the additional list on 27.08.2016 and, if an application is filed by the petitioner to recall PW1 and cross-examine the witness already examined as PW1, then the court below is directed to allow that application and permit him to cross-examine the witness and then proceed with the case and dispose of it in accordance with law, after affording opportunity to the parties to adduce necessary evidence in the case. The interim order granted is vacated.
Final Disposition: Disposed of with directions to re-list and permit recall/cross-examination if sought; interim stay vacated

Parties to the Case

Appellants / Petitioners

Justin Joseph

Respondents

Sri. V.R.Manoj Kumar @ Parayil Manojkumar, S/O Balaram an Nair; 2. Sri. C.V.George @ Papan; 3. Sri. M.O.Varkey; 4. Sri. Vineshkumar Parayil

Legal Representation & Advocates

Counsels for Petitioners

• Sajeevan Kurukkuttiyullathil
• Saritha Thomas

Case Synopsis & Summary

This Kerala High Court petition under Article 227 challenges the Munsiff Court Ettumanoor’s handling of OP(Election) No.1/2015. The petitioner Justin Joseph, the first counter petitioner, contends that the lower court proceeded with the trial without granting him an opportunity to participate after his counsel’s health-related adjournment requests, and issued a certified copy in IA 904/2016 in the election petition. He had sought adjournment on account of counsel’s neck surgery and voice-rest, backed by Ext. P3; the petition alleges the adjournment motion was dismissed and the case continued, with PW1 examined and Exhibits A1–A4 marked on 04.07.2016. The petition claims the court erred by proceeding ex parte and thereby depriving the petitioner of cross-examination and fair participation. The report from the lower court outlines the sequence of adjournments, stay orders, and the attempt to keep the matter alive, including a two-week stay on 13.07.16 and further adjournments. The judge notes reliance on Divakara Panicker v. Pathumma and Pokker Haji v. Muhammad Barami, but states he will not apply their dicta here, choosing to grant the petitioner an opportunity to participate and to recall PW1 if needed. The court disposes of the petition with directions to re-list on 27.08.2016 and, if sought, permit cross-examination, then proceed in accordance with law, vacating the interim stay.

Provisions of Law Cited

Article 227 of the Constitution of India

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the trial court erred by proceeding with Exhibit P1 without granting him an opportunity to participate after the adjournment application (IA 904/2016) was dismissed, and without setting him ex parte. He seeks to stay the proceedings in Exhibit P1 until he can challenge the order on Exhibit P4 and to recall PW1 for cross-examination, citing Divakara Panicker v. Pathumma and Pokker Haji v. Muhammad Barami to argue that a court denying adjournment must compel ex parte proceedings before continuing.

Contentions of Respondents

The respondents relied on the cited decisions to contend that if an application for adjournment is filed and rejected, the court below must set the defendant ex parte and proceed; without such an ex parte setting, continuing the case would be improper. However, the court later notes it will not apply these dicta for this case and instead affords both sides an opportunity to present evidence.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Divakara Panicker v. Pathumma	1990 KHC 371	Mentioned Only	Cited by counsel but the court states it will not apply the dicta in this case to the present matter.
Pokker Haji v. Muhammad Barami	1971 KHC 88	Mentioned Only	Cited in argument but the court indicates it will not apply the dicta to this case.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 5TH DAY OF AUGUST 2016/14TH SRAVANA, 1938** **OP(C).No. 1640 of 2016 (O) --------------------------** **OP(ELECTION)NO.1/2015 OF MUNSIFF COURT, ETTUMANOOR. ........** **PETITIONER/1ST COUNTER PETITIONER: ----------------------------------** **JUSTIN JOSEPH, S/O.KURIAN JOSEPH, AGED 54 YEARS, RESIDING AT THOTTIL HOUSE, AARPOOKKARA EAST.P.O., AARPOOKKARA VILLAGE, KOTTAYAM DISTRICT.** **BY ADVS.SRI.SAJEEVAN KURUKKUTTIYULLATHIL SMT.SARITHA THOMAS** **RESPONDENT(S)/ORIGINAL PETITIONER AND COUNTER PETITIONERS 2 TO 4:** **-------------------------------------** **1. SRI. V.R.MANOJ KUMAR @ PARAYIL MANOJKUMAR, S/O.BALARAMAN NAIR, AGED 48 YEARS, VECHUVEETTIL HOUSE, AARPPOOKKARA POST.P.O., AARPOOKKARA VILLAGE, KOTTAYAM DISTRICT-686 008.** **2. SRI.C.V.GEORGE @ PAPAN, AGED 55 YEARS, S/O.VARKEY, CHAMAKKALAYIL, VILLONNI.P.O., AARPPOOKKARA VILLAGE, KOTTAYAM THALUK.** **3. SRI.M.O.VARKEY, AGED 69 YEARS, S/O.OUSEPH, RESIDING AT MURYANKARI HOUSE, AARPPOOKKARA WEST P.O., AARPOOKKARA VILLAGE, KOTTAYAM DISTRICT.** **4. SRI.VINESHKUMAR PARAYIL, AGED 37 YEARS, S/O.PARAMESWARA PANICKER, VILLONNI.P.O., AARPPOKKARA VILLAGE, KOTTAYAM THALUK-686 008.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **OP(C).No. 1640 of 2016 (O) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **-----------------------** **P1 : TRUE COPY OF THE PETITION IN OP(ELECTION) 1/2015 ON THE FILES OF THE MUNSIFF'S COURT, ETTUMANOOR.** **P2 : TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN EXT.P1 CASE.** **P3 : TRUE COPY OF THE DISCHARGE SUMMARY DATED 31.05.2016 IN RESPECT OF ADV. JOSEPH ABRAHAM.** **P4 : TRUE COPY OF THE APPLICATION FOR ADJOURNMENT FILED BY THE PETITIONER IN EXT.P1.** **RESPONDENT(S)' EXHIBITS: NIL** **-----------------------** ## **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## **K. Ramakrishnan, J. ============================== O.P.(C)No.1640 of 2016 ============================== Dated this, the 05[th] day of August 2016.** ## **J U D G M E N T** 1.This is a petition filed by the petitioner, challenging the procedure adopted by the court below in proceeding with the case without setting him ex-parte and issuing certified copy in I.A.No.904/2016 in O.P.(Election)No.1/2015 pending before Munsiff Court, Ettumanoor, under Article 227 of Constitution of India. 2.It is alleged in the petition that petitioner is the first counter petitioner in Ext.P1 Election Petition filed by the first respondent, challenging his election to the Aarpookkara Grama Panchayath. He filed a written statement. Thereafter, after steps, the case was listed for trial on 04.07.2016. On that day, since his counsel Shri.Joseph Abraham had undergone a surgery to his neck on 30.05.2016 and he was advised to have voice rest for a period of 15 days and during the second review, he was advised to have voice rest for a further period of O.P.(Civil)No.1640 of 2016 : 2 : one month, evidenced by Ext.P3 and he was not able to come to court and conduct the cases, he filed I.A.No.904/2016 for adjournment and remove the case from list, due to the inconvenience of the lawyer due to health reasons. That petition was dismissed and without setting the petitioner ex-parte, the court below decided to proceed with the case by examining the petitioner in that case which is not proper. So, the petitioner has no other remedy except to approach this Court seeking the following reliefs: - _“i) Issue direction to the learned Munsiff to dispose of the trial of the Exhibit-P1 case by following the ratio in_ ## _**Divakara Panicker v. Pathumma (1990 (1) KLJ 787)**_ _and forbid him from proceeding with the case on merit even if the Exhibit-P4 is dismissed. To stay the further proceedings in Exhibit P1 suit till the petitioner is enabled to challenge the order in Exhibit P4 by appropriate proceedings; and_ _ii) Pass such other and further equitable remedies as this Honourable Court may deem fit and proper in interest of justice and circumstances of the case.”_ ## 3.Though notice was issued to the respondents, none appeared. ## 4.A report was called for from the court below regarding O.P.(Civil)No.1640 of 2016 : 3 : ## the present stage and the learned Munsiff sent a report which reads as follows: _“I humbly submit the following facts for the kind consideration and necessary action of the Hon'ble High Court._ _The case OP(election) 1/2015 on the file of this court was filed seeking order declaring the election of the 1[st] respondent in ward No.3 of the Arpookara Grama Panchayath as void and declaring the petitioner as the duly elected member of the said ward. There are four respondents in this case. The respondent Nos.2 to 4 did not file objection to the original petition. The 1[st] respondent filed objection to the original petition. The application filed by the 1[st] respondent for removing the case from the list was dismissed on 04.07.16. On that day itself, PW1 was examined and Ext.A1 to A4 were marked. The 1[st] respondent had not cross examined PW1. The 1[st] respondent was not set exparte. No other person was examined so far. Summons was issued to the witness for examination and production of documents. Since the witness sought for time for producing documents, the case was adjourned to 13.07.16. On that day the 1[st] respondent submitted that the Hon'ble High Court was pleased to stay the matter for 2 weeks. So the case was adjourned to 27.07.16. On 27.07.16 the 1[st] respondent submitted that the stay was extended. Hence the case was removed from the list and adjourned to 27.08.2016. The above said matters are submitted for the consideration of the Hon'ble High Court of Kerala.”_ ## 5.Heard the learned counsel for the petitioner O.P.(Civil)No.1640 of 2016 : 4 : Shri.Sajeevan Karuukuttiyullathil. 6.The counsel has relied on the decisions reported in **Divakara Panicker Vs. Pathumma [1990 KHC 371]** and **Pokker Haji Vs. Muhammad Barami [1971 KHC 88]** for the proposition that when an application for adjournment is filed and that application is rejected, then, court below has to set the defendent ex-parte and then proceed with the case. Without setting ex-parte and proceed with the case is not proper. 7. Anyhow, I am not now considering the dictum laid down in the above decisions for this case as the counsel for the petitioner submitted that he wants only an opportunity to participate in trial of the case and cross examine the witness. It is seen from the report that, on 04.07.2016, when the application was filed by the petitioner seeking removing the case from the list, that was dismissed and on that day itself, PW1 was examined Exts.A1 to A4 were marked. It is seen from the report that first respondent who is the petitioner herein, did not cross examine PW1. But, he was not set ex-parte. O.P.(Civil)No.1640 of 2016 : 5 : Though summons was issued to the witnesses to produce documents, they wanted time to produce documents and so, case was adjourned to 13.07.2016. On that day, the first respondent submitted that this Court has stayed the proceedings for two weeks and the case was adjourned to 27.07.2016. On the basis of the submission made by the first respondent, the case was adjourned after removing the case from the list and posted to 27.08.2016. Since the case has been removed from the list and posted to 27.08.2016, this Court feels that the petition can be disposed of as follows: The court below is directed to include the case in the additional list on 27.08.2016 and if an application is filed by the petitioner to recall PW1 and cross examine the witness already examined as PW1, then, court below is directed to allow that application and permit him to cross examine the witness and then, proceed with the case and dispose of the case in O.P.(Civil)No.1640 of 2016 : 6 : accordance with law, after affording opportunity to the parties to adduce necessary evidence in the case. With the above direction and observation, the petition is disposed of. The interim order granted is vacated. Registry is directed to communicate this judgment to the court below at the earliest by fax as the court below can comply with the direction of this Court and to dispose of the case accordingly. Sd/- **K.Ramakrishnan,** **Judge.** Bb/06/08/2016 _[True copy]_ _P.A to Judge_