OP(C) No. 2124 of 2017 (O)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 31ST DAY OF JULY 2018 / 9TH SRAVANA, 1940** **OP(C).No. 2124 of 2017** **---------------------AGAINST THE ORDER/JUDGMENT IN IA.990/2017 IN OS 504/2009 of PRL.SUB COURT,KOTTAYAM** **PETITIONER(S)/DEFENDANTS 1 TO 3:** **--------------------------------** **1 RAJU MALLIYATH** **S/O LATE M.G NARAYANAN NAIR, AGED 58 YEARS, MALLIYATH KAMALA MANDIRAM HOUSE, PALLIKACHIRA PO, PAYIPPADU VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT. NOW RESIDING AT MALLIYATH HOUSE, NEAR SREE VALLABHA TEMPLE, KAVUMBHAGAM VILLAGE, THIRUVALLA TALUK.** ## **2 RAJIKUMAR N,** **S/O LATE M.G NARAYANAN NAIR, AGED 56 YEARS, MALLIYATH KAMALA MANDIRAM HOUSE, PALLIKACHIRA PO, PAYIPPADU VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, NOW RESIDING AT MADHAVA MANDIRAM HOUSE, PERUNNA PO, CHANGANASSERI TALUK.** ## **3 RAMESHKUMAR N.** **S/O LATE M.G NARAYANAN NAIR, AGED 51 YEARS, MALLIYATH KAMALA MANDIRAM HOUSE, PALLIKACHIRA PO, PAYIPPADU VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, NOW RESIDING AT KOHINOOR VILLAGE, KUTTOOR PO, KUTTOOR VILLAGE, THIRUVALLA TALUK.** **BY ADVS.SRI.T.KRISHNANUNNI (SR.)** **SMT.MEENA.A. SRI.VINOD RAVINDRANATH SRI.SAJU.S.A SRI.K.C.KIRAN SRI.M.DEVESH SRI.VINAY MATHEW JOSEPH SRI.ASHWIN SATHYANATH** **OP(C).No. 2124 of 2017 (O) ---------------------------** **2** ## **RESPONDENT(S)/PLAINTIFF AND 4TH DEFENDANT: ------------------------------------------** ## **1. P.H.NASSAR** **S/O HASSAN RAVUTHAR, AGED 58 YEARS, PRAYIL HOUSE, VAZHOOOR VILLAGE, CHANGANASSERI TALUK, KOTTAYAM, PIN-686101.** ## **2. SINDHU K.N.,** **W/O ARAVINDAKSHAN PILLAI, AGED 52 YEARS, MANIMANDIRAM HOUSE, MAVELIKKARA TALUK, MEVELIKKARA VILLAGE, KOTTANKAVUMURI, BUDHA JUNCTION, PIN 690101.** ## **3. MUHAMMEDKUNJU,** **S/O HASSAN RAVUTHAR, AGED 68 YEARS, MALLIYATH KAMALA MANDIRAM, PAYIPPATTU VILLAGE, PALLIKKACHIRA, PIN-686635.** **R1 BY ADV. SRI.M.P.MADHAVANKUTTY** **R3 BY ADV. SMT.R.REMA** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 31-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C).No. 2124 of 2017 (O) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** **EXHIBIT P1 TRUE COPY OF THE PLAINT DATED 17.10.2009 IN O.S. 504/2009 ON THE FILES OF THE SUBORDINATE JUDGE OF KOTTAYAM. EXHIBIT P2 TRUE COPY OF THE PLAINT DATED 17.12.2012 IN O.S. 724/2012 ON THE FILES OF THE COURT OF THE SUBORDINATE JUDGE OF KOTTAYAM. EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 17.6.2017 FILED BY THE PETITIONERS. EXHIBIT P4 TRUE COPY OF THE COUNTER DATED 21.6.2017 FILED BY THE 3RD RESPONDENT. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 27.6.2017 IN I.A NO.990/2017 IN O.S 504/2009 ON THE FILES OF THE COURT OF THE PRINCIPAL SUB JUDGE, KOTTAYAM.** ## **RESPONDENT(S)' EXHIBITS:** ## **-----------------------** ## **NIL** ## **/TRUE COPY/** **PA TO JUDGE** _**dkr**_ ## ASHOK MENON, J. ------------------------------------------O.P.(C) No. 2124 of 2017 ------------------------------------------Dated this the 31[st] day of July, 2018 ## J U D G M E N T Four suits, namely, O.S.Nos.504/2009, 724/2012, 328/2013 and 329/2013 were being jointly tried before the Sub Court, Kottayam. O.S.No.504/2009, the earliest in point of time, was filed by one Nazar, who is the 1[st] respondent herein, for specific performance based on an agreement for sale allegedly entered into between him and the petitioners herein, who are the defendants 1 to 3 in that suit. He sought specific performance with respect to a property belonging to the petitioners herein and their sister in accordance with the agreement produced in the suit. The defendants 1 to 3 and their sister, who was impleaded as the 4[th] defendant, are the owners of the property, and contested the suit. The defendants 1 to 3 contended that they did not agree to sell the property to the plaintiff as alleged and challenged the veracity of the sale agreement. They contended that they had some financial dealings in connection with their business with one Muhammed Kunju and that the said Muhammed Kunju had advanced some _OP(C) 2124/2017_ 2 money to them and got certain papers signed. One of those papers was allegedly misused to concoct an agreement for sale in the name of the plaintiff Nassar. 2. While O.S.No.504/2009 was being contested, the sister of the petitioners herein, who is the 4[th] defendant in the suit for specific performance, filed O.S.No.724/2012 for partition of the property against her brothers, the petitioners herein. She also impleaded Muhammed Kunju, as 4[th] defendant, since he appeared to be claiming certain right over the property. 3. O.S.No.328/2013 was filed by the plaintiff in the suit for specific performance to protect his possession and his right to enjoy the profits from the property which he claimed to be in his possession, following part performance. 4. O.S.No.329/2013 was filed by defendants 1 to 3, the petitioners herein, for an injunction against Nassar as well as Muhammed Kunju, and their sister, the 4[th] defendant. 5. Joint trial was ordered by the Court in all the four cases, and later on, O.S.No.329/2013, the injunction suit filed by the petitioners herein, was withdrawn. _OP(C) 2124/2017_ 3 6. Nassar was examined as PW1 in O.S.No.504/2009, which was taken as the lead case. One of the defendants was examined and evidence of the witnesses was in progress. At that time, the petitioners herein filed I.A.No.990/2017 in O.S.No.504/2009 for examining Muhammed Kunju as a witness, because they had set up the defence that it was Muhammed Kunju, who got certain papers from them, which was later concocted into the agreement for sale relied upon the plaintiff in suit for specific performance. Hence they insist that Muhammed Kunju is an essential witness to prove their case. The application was opposed and Muhammed Kunju himself, who is also the 4[th] defendant in the partition suit, O.S.No.724/2012 and filed an objection stating that he does not intend to appear as a witness for the petitioners herein. Considering his objection, and the necessity of him being examined, vide the impugned order at Ext.P5, the learned Sub Judge observed that Muhammed Kunju is not a material witness in the case, and therefore, the examination is not necessary for a proper adjudication of the suit. The learned Sub Judge also held that a party to a suit has no right to summon the opposite party and compel him to give evidence. _OP(C) 2124/2017_ 4 7. The consideration before this Court is whether the petitioners herein can be allowed to examine Muhammed Kunju, who is a defendant in one of the suits, as a witness. The petitioners herein would rely on the decision of this Court in Kalliyara Estates Pvt.Ltd., Padinjaremuri v. State of Kerala, 2012 (3) KHC 386 , wherein it is held that even though there is no right vested in a party to summon the opposite party as a witness, the Court is entitled to ascertain whether the purpose of examining the witnesses is relevant and in such case, under Section 30 the power can be exercised by the Court either on its own motion or on the application filed by the party and the limitation prescribed under Order XVI of the C.P.C. cannot prevent the Court from exercising that power of examining a witness, if found necessary. 8. The learned Counsel for the 1[st] respondent, who is the plaintiff in O.S.No.504/2009, submits that Muhammed Kunju being one of the defendants in O.S.No.724/2012, which is being jointly tried with O.S.No.504/2009, cannot be compelled to appear as witness for the defendants therein, by virtue of the embargo under Order XVI, Rule 21, C.P.C. He relies on two decisions of this Court _OP(C) 2124/2017_ 5 in support of his argument. In Syed Mohammed v. Aziz, 1990 KHC 504, this Court has relied on the decision of the Privy Council in Kishori Lal v. Chunni Lal , wherein it was observed that the parties shall not be allowed to force the opponent to appear as a witness. In Kaumudi Madhavan v. State Election Commissioner, 2004 KHC 608 also it is held that based on the provisions of Order XVI, Rule 21, C.P.C. the party to the proceedings has no right to compel the presence of another party to the suit to give evidence. But, at the same time, it is also held that if the Court ultimately finds based on evidence that such examination is required for a proper adjudication of the provisions, the provisions empowers the Court to do so. Considering the facts and circumstances of this case, the observation made by the learned Sub Judge that Muhammed Kunju is not at all a material witness in this dispute between the parties, cannot be dealt with proper. Right from the inception of the litigation, in the written statement filed by the petitioners in O.S.No.504/2009, the main contention taken up by the defendants therein is that they had transaction only with Muhammed Kunju and not with the plaintiff Nassar, and that Nassar was only a benami for _OP(C) 2124/2017_ 6 Muhammed Kunju who had misused certain papers entrusted to him to be concocted into a sale agreement in favour of Nassar. Hence, having set up the defence regarding the involvement of Muhammed Kunju, it was incumbent upon the defendants/petitioners to establish their case by attempting to examine Muhammed Kunju as a witness. Considering that aspect, the learned Sub Judge ought to have allowed the application, I.A.No.990/2017, to permit the petitioners to examine Muhammed Kunju as witness despite his not being inclined to appear. I, therefore, set aside the impugned order of the learned Sub Judge in I.A.No.990/2017 and this Petition stands allowed. Considering the fact that the main suit is of the year 2009, the learned Sub Judge shall make earnest effort to dispose of the suit, as expeditiously as possible, at any rate within a period of four months from the date of receipt of this judgment. The Original Petition allowed. No order as to costs. Sd/ASHOK MENON Judge dkr