P.K.C Fruits v. Shihabudheen, Sakeer and Parambil Ibrahim

OP(C) NO. 630 OF 2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 20[TH] DAY OF MARCH 2023 / 29TH PHALGUNA, 1944** ## **OP(C) NO. 630 OF 2023** **AGAINST THE ORDER/JUDGMENT IN OS 40/2015 OF SUB COURT, TIRUR** ## **PETITIONER/S:** P.K.C FRUITS , M.M ALI ROAD, PALAYAM CALICUT REPRESENTED BY ITS MANAGING PARTNER MAJEED K.P, S/O MOIDEEN FOUJI VILLA, POOVATTUPARAMBU (PO), PERUVAYAL AMSOM POOVATTUPARAMBA DESOM KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN - 673008 BY ADVS. JAMSHEED HAFIZ K.K.NESNA T.S.SREEKUTTY ## **RESPONDENT/S:** 1 SHIHABUDHEEN, S/O IBRAHIM MARIPARAMBIL HOUSE KUMARANALLOOR AMSOM VELLALOOR DESOM OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN - 679552 2 SAKEER , S/O PAREED KALLUMPADATH HOUSE EDAPPAL AMSOM UDINIKARA DESOM PONNANI TALUK, MALAPPURAM, PIN - 679576 3 PARAMBIL IBRAHIM, S/O ABOOBACKER PARAMBIL HOUSE KUMARANALLOOR AMSOM VELLALOOR DESOM OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN - 679552 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 630 OF 2023 2 ## **JUDGMENT** King Robert Bruce's tenacity seems to have inspired the petitioner in repeatedly filing original petitions before this Court, despite the direction passed by this Court in FAO No.9/2017 to dispose of the suit within two months from 16.11.2022. The petitioner is the plaintiff and the respondents are the defendants in OS No.40/2015 of the Court of the Subordinate Judge, Tirur. 2. The brief but relevant facts leading to the original petition are: (i) The petitioner has filed the suit against the respondents, for recovery of money. (ii) The respondents have resisted the suit by filing their written statement with a counter claim. (iii) The petitioner had filed an application for OP(C) NO. 630 OF 2023 3 attachment before which was judgment dismissed by the court below. - (iv) Challenging the order of the dismissal of the application, the petitioner filed FAO No.9/2017 before this Court. By Ext.P4 judgment, this Court directed the court below to dispose of the suit within two months. - (v) The parties went to trial. The petitioner examined PWs 1 to 5 and the respondents examined DWs 1 to 3. - (vi) After the examination of DW3, the petitioner felt the necessity to reopen the evidence and reexamine additional witnesses. But, the application was rejected by the court below. - (vii) The petitioner challenged the order before this Court in OP(C) No.165/2023. By Ext.P5 judgment OP(C) NO. 630 OF 2023 4 dated 30.01.2023, this Court permitted the reopening of the evidence and the examination of four witnesses mentioned in the witness list on day to day basis. Further, the court below was directed to dispose of the suit on or before 28.02.2023. - (viii) The petitioner had filed a chief affidavit with request to mark Exts.A1 to A12 documents. Yet, the court below only marked Exts.A1 to A3 documents and rejected the marking of Exts.A4 to A7 documents. Ext.A10 document was marked, but subject to the objection of the respondents. - (ix) The petitioner filed IA No.9/2021 (Ext.P7) to accept account statement on record, which was not opposed by the respondents. - (x) During the cross-examination of the Accountant OP(C) NO. 630 OF 2023 5 of the petitioner (PW3) specific questions pertaining to Exts.A4 to A6 were put to him. Likewise, the questions regarding the same documents were put to PWs 4 and 5 also. (xi) Surprisingly, at the time of final hearing, the court below, by Ext.P11 order, held that Exts.A4 to A6 cannot be marked. Ext.P11 is unjust, illegal and arbitrary. (xii) The petitioner filed IA Nos.11/2023, 12/2023, 13/2023, 14/2023, 15/2023, 16/2023 and 17/2023 to reopen the evidence, to re-call PW1, to receive in evidence the documents produced with IA No.9/2021, to receive four additional documents in evidence and to recall PWs 3 to 5, to summon the Manager of Allahabad Bank and to summon the Bank Manager of Indian Bank, respectively. The applications were opposed by the OP(C) NO. 630 OF 2023 6 respondents. - (xiii) The court below, by the impugned Ext.P17 common order allowed IA No.11/2023 and 16/2023, and dismissed IA Nos.12/2023, 14/2023, 15/2023 and 17/2023. The petitioner is permitted to only summon the Bank Manager of Allahabad Bank. (xiv) Ext.P17 common order is manifestly wrong and erroneous. Hence, the original petition. 3. Heard; Sri.Jamsheed Hafiz, the learned Counsel appearing for the petitioner and Sri.Babu Karukapadath, the learned Counsel appearing for the 2[nd] respondent. 4. The question posed is, is there any error in Exts.P11 and P17 orders. 5. The suit is filed for recovery of money. The same is resisted by the respondents through Ext.P3 written OP(C) NO. 630 OF 2023 7 statement and a counter claim. 6. On a challenge made by the petitioner against an order rejecting an application for attachment before judgment, a Division Bench of this Court, by Ext.P4 judgment, has directed the court below to dispose of suit within two months from 16.11.2022 i.e, on or before 16.01.2023. 7. It is after the above direction was passed the petitioner filed IA Nos.2/2023 and 3/2023 to reopen evidence and to examine four witnesses. 8. Although the above applications were dismissed by the court below, this Court by Ext.P5 judgment taking a lenient view in the matter and to avoid a pre-emptory foreclosure of the petitioners' evidence, in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, reopened the evidence and permitted the petitioner to examine the four witnesses, OP(C) NO. 630 OF 2023 8 on a day to day basis from 08.2.2023. 9. It is conceded, pursuant to Ext.P5 judgment, four witnesses were examined. It is after their examination, that the petitioner has chosen to file IA Nos.11/2023 to 17/2023 for the already mentioned purposes. 10. The court below, after appreciating the rival pleadings, concluded that the petitioner has been in deep in slumber in contesting the proceedings, despite the specific directions of this Court, and the documents sought to be introduced in evidence lacks certification under Section 65B of the Indian Evidence Act, 1872. Thus, the court below rejected all the applications except IA Nos.11/2023 and 16/2023. 11. On a reading of Ext.P17 order, this Court found that the petitioner has deliberately suppressed the fact of its challenge against the orders passed in IA Nos.8/2023 and 9/2023 by the court below rejecting the OP(C) NO. 630 OF 2023 9 prayer to accept additional documents and to direct the Sub Inspector, Malappuram Cyber Crime Police Station to conduct an investigation. This Court, by judgment dated 22.02.2023 in OP(C) No.463/2023, considering the earlier directions passed in FAO No.9/2017 and OP(C) No.165/2023 held that the petitioner cannot conduct the trial on a piecemeal basis, that too after this Court has specifically directed the court below to dispose of the suit. 12. The suppression of this material fact is strongly deprecated in the strongest terms. 13. In **Ram Rati vs. Mange Ram and others** [2016 KHC 6187] the Honourable Supreme Court has emphatically held, that a party does not have the right to reopen the evidence. The power cannot be invoked by a party to fill up the omissions in the evidence that is already on record, even if it does not cause prejudice to OP(C) NO. 630 OF 2023 10 the opposite side. Even the discretionary power conferred on a Court under Order 18 Rule 17 of the Code is to be sparingly exercised and that too with a rider that the trial of the suit shall not be unnecessarily protracted. 14. In the instant case, it is to be remembered that the suit is of the year 2015. The suit was directed to be disposed of by a Division Bench by Ext.P4 judgment, within two months from 16.11.2022. Thus, the parties were alerted to get ready for the trial and co-operate with the court below to dispose of the suit within the stipulated time period. 15. Notwithstanding the said direction, this Court again by Ext.P5 judgment, taking a lenient view, permitted the petitioner to examine four more witnesses, and enlarged the time period fixed in Ext.P4 judgment till 28.02.2023. 16. Despite the above concession shown, the OP(C) NO. 630 OF 2023 11 petitioner did not choose to examine the witnesses and produce the documents that it now seeks to bring on record. 17. Nevertheless, the court below, after a threadbare analysis of the applications and their objections, has exercised its discretion and allowed IA Nos.11/2023 and 16/2023. 18. The petitioner should bear in mind though it is the dominus litis, it cannot run the show as per its whims and caprice. When a time period is fixed, the petitioner cannot remain lethargic and expect that the Courts would concede to his demand from time to time. Lest said of the suppression, the petitioner ought to have stopped his endeavour with the dismissal of OP(C) No.463/2023, than from expecting something like King Robert Bruce. 19. It is trite; the exercise of the power of OP(C) NO. 630 OF 2023 12 superintendence of this Court under Article 227 of the Constitution of India is to keep the courts of the District Judicature within their bounds of authority and to see that they do the duty as expected of them. The High Court is not vested with any unlimited prerogative to correct all decisions made within the limits of the jurisdiction of the subordinate courts. The exercise of this power and interfering with the orders of the courts is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also nigh settled that while acting under this Article, the High Court is not acting as an appellate court to substitute its judgment in place of the subordinate courts. In the above conspectus, especially considering the mandate laid down in **Ram Rati** (supra), this Court does not intend to sit in judgment over the discretionary OP(C) NO. 630 OF 2023 13 powers exercised by the court below in passing Exts.P11 and P17 orders by invoking the power of superintendence of this Court under Article 227 of the Constitution of India. The original petition is an abuse of process of the law. This Court refrains from imposing cost on the petitioner on the assumption that it would not venture in such frivolous litigation. The original petition is meritless and is hence dismissed. **Sd/C.S.DIAS JUDGE** rkc/20.03.23 OP(C) NO. 630 OF 2023 14 ## **APPENDIX OF OP(C) 630/2023** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|TRUE COPY OF THE PLAINT IN O.S 40/2015| ||BEFORE THE SUB COURT TIRUR DATED| ||03.06.2015| |Exhibit P2|TRUE COPY OF THE WRITTEN STATEMENT FILED| ||BY THE IST RESPONDENDENT DEFENDANT DATED| ||15.12.2015| |Exhibit P3|TRUE COPY OF THE WRITTEN STATEMENT OF| ||THE PETITIONER TO THE COUNTER CLAIM| ||DATED 18.08.2016| |Exhibit P4|TRUE COPY OF THE COMMON JUDGMENT IN| ||F.A.0 9/2017 AND OPC 219/2017 BEFORE| ||THIS HONOURABLE COURT DATED 16.11.2022| |Exhibit P5|TRUE COPY OF THE JUDGMENT IN O.P.C| ||165/2023 DATED 10.01.2023 OF THIS| ||HONOURABLE COURT.| |Exhibit P 6|TRUE COPY OF THE DEPOSITION FILED BY THE| ||PETITIONER HEREIN DATED 06.08.2021| |Exhibit P7|TRUE COPY OF THE IA. NO.9/2021 IN OS.| ||NO. 40/2015 BEFORE THE SUB COURT,TIRUR| ||FILED BY THE PETITIONER DATED 07.10.2021| |Exhibit P8|TRUE: COPY OF THE DEPOSITION OF PW3 IN| ||THE CASE DATED 06.02.2023| |Exhibit P9|TRUE COPY OF THE DEPOSITIONS OF PW4 IN| ||THE CASE DATED 06.02.2023| |Exhibit P10|TRUE COPY OF THE DEPOSITION OF PW5 IN| ||THE CASE DATED 06.02.2023| |Exhibit P11|TRUE COPY OF THE ORDER DATED 27.02.2023| ||IN I.A 9/2021 IN OS. NO. 40/2015 BEFORE| OP(C) NO. 630 OF 2023 15 ||THE SUB COURT, TIRUR| |---|---| |Exhibit P12|TRUE COPY OF THE IA.12/2023 IN OS. NO.| ||40/2015 BEFORE THE SUB COURT, TIRUR| ||DATED 23.02.2023| |ExhibitP12a|TRUE COPY OF THE COUNTER IN IA. 12/2023| ||IN OS. NO. 40/2015 BEFORE THE SUB COURT,| ||TIRUR DATED 25.02.2023| |Exhibit P13|TRUE COPY OF THE IA. 13/2023 IN OS. NO.| ||40/2015 BEFORE THE SUB COURT, TIRUR| ||DATED 23.02.2023| |Exhibit P13a|TRUE COPY OF THE COUNTER IN IA. 13/2023| ||IN OS, NO. 40/2015 BEFORE THE SUB COURT,| ||TIRUR DATED 25.02.2023| |Exhibit P14|TRUE COPY OF THE IA. 14/2023 IN OS. NO.| ||40/2015 BEFORE THE SUB COURT, TIRUR| ||DATED 23.02.2023| |Exhibit P14a|TRUE COPY OF THE COUNTER IN IA. 14/2023| ||IN OS. NO. 40/2015 BEFORE THE SUB COURT,| ||TIRUR DATED 25.02.2023| |Exhibit P15|TRUE COPY OF THE IA 15/2023 IN OS. NO.| ||40/2015 BEFORE THE SUB COURT, TIRUR| ||DATED 23.02.2023| |Exhibit P15a|TRUE COPY OF THE COUNTER IN IA. 15/2023| ||IN OS. NO. 40/2015 BEFORE THE SUB COURT,| ||TIRUR DATED 25.02.2023| |Exhibit P16|TRUE COPY OF THE IA. 17/2023 IN OS. NO.| ||40/2015 BEFORE THE SUB COURT, TIRUR| ||DATED 27.02.2023| |Exhibit P16a|TRUE COPY OF THE COUNTER IN IA. 17/2023| ||IN OS. NO. 40/2015 BEFORE THE SUB COURT,| ||TIRUR DATED 27.02.2023| |Exhibit P17|TRUE COPY OF THE COMMON ORDER IN IA.| OP(C) NO. 630 OF 2023 **==> picture [13 x 9] intentionally omitted <==** 11/2023 , IA. 12/2023, IA. 13/2023, IA. 14/2023. IA. 15/2023, IA. 16/2023 AND IA. 17/2023 IN OS. NO. 40/2015 PASSED BY THE SUB COURT, TIRUR DATED 28.02.2023