Puthan Purakkal Biju Sebastian v. Medicare Speciality Clinic

``` OP(C) 554/2023 ``` ``` 1 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 3[RD] DAY OF MARCH 2023 / 12TH PHALGUNA, 1944 ``` ## **`OP(C) NO. 554 OF 2023`** ``` OS 13/2020 OF SUB COURT, HOSDRUG ``` ## **`PETITIONER/S:`** ``` PUTHAN PURAKKAL BIJU SEBASTIAN AGED 48 YEARS S/O DEVASSIA @ SEBASTIAN, CHRISTAIN, PERMANENTLY RESIDING AT MANGAYAM, BALAL VILLAGE, VELLARIKUNDU TALUK, VELLARIKUNDU P.O, KASARAGOD, PIN - 671534 BY ADVS. K.JAYESH MOHANKUMAR PUSHPARAJAN KODOTH VANDANA MENON VIMAL VIJAY ``` ## **`RESPONDENT/S:`** ``` 1M/S MEDICARE SPECIALITY CLINIC REP. BY ITS MANAGING PARTNER - ANOOP MOHANAN, S/O. MOHANAN.T.K., RESIDING AT THEKKUMSSERIL HOUSE, VELLARIKUNDU, PARAPA VILLAGE, KASARAGOD, PIN - 671533 2ANOOP MOHANAN S/O. MOHANAN.T.K., RESIDING AT THEKKUMSSERIL HOUSE, VELLARIKUNDU, PARAPA VILLAGE, KASARAGOD, PIN - 671533 3JOM JOSE S/O. JOSE, R/AT PARATHOOKIEL HOUSE, CHEMBANCHERI, BALAL VILLAGE, VELLARIKUNDU TALUK AND POST, KASARAGOD DISTRICT, PIN - 671533 4DR. ANILA MOHANAN D/O. MOHANAN.T.K., RESIDING AT THEKKUMSSERIL HOUSE, VELLARIKUNDU, PARAPA VILLAGE, KASARAGOD, PIN - 671533 ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) 554/2023 ``` ``` 2 ``` ## **JUDGMENT** The original petition is filed challenging Ext.P8 order passed in I.A.No.7/2023 in O.S.No.13/2020 by the Court of the Subordinate Judge, Hosdurg. The petitioner is the plaintiff and the respondents are the defendants in the suit. 2. The skeletal facts, relevant for determination of the original petition, are: (i) The petitioner has filed the suit against the respondents for a decree to surrender possession of the shop rooms, damages and arrears of rent. (ii) The respondents have resisted the suit through Exts.P2 to P4 written statements. (iii) When the suit was listed for trial, the respondents filed I.A. No.7/2023 (Ext.P5), to receive the witness list and to issue summons to three witnesses. The application was opposed by the petitioner through Ext.P7 counter statement. (iv) The court below, by the impugned Ext.P8 order, allowed Ext.P5 application. ``` OP(C) 554/2023 ``` ``` 3 ``` (v) Ext.P8 order is manifestly wrong and unsustainable in law. Hence, the original petition. 3. Heard, Sri.Jayesh Mohankumar, the learned counsel appearing for the petitioner, on admission. 4. The question is, whether there is any error in Ext.P8 order. 5. The petitioner has instituted the suit, inter-alia, for recovery of arrears of rent. The respondents 1 and 2 filed their written statement, inter-alia, contending that in the months of July, August and September, 2018, the petitioner had directly collected rent @ Rs.44,462/- per month from the respondents and issued vouchers. 6. Indisputably, the suit was instituted by the wife and power of attorney holder of the petitioner, named Bindu Thressiamma Varghese, on his behalf. 7. Nevertheless, at the time of trial, the petitioner himself mounted the box and gave evidence as PW1. When he was confronted with the vouchers for the above three months, he bluntly denied the same. 8. Immediately, the respondents filed Ext.P5 ``` OP(C) 554/2023 ``` ``` 4 ``` application citing the petitioner’s agent and wife as their witness, to confront and prove the vouchers issued by her. 9. The petitioner resisted the application through Ext.P7 counter statement, contending that there is no provision in law to permit an opposite side to fill in the lacuna through the cross-examination of the witness. 10. At the time of the hearing of the application, the learned counsel appearing for the petitioner placing reliance on the decisions of this Court in **Jortin Antony and others v. Marthanda Varma and others [2000 (2) KLT 680]** and **Managing Director, Kerala Books Publication Society v. Labour Court, Ernakulam** **[2014 (2) KLJ 221]** objected to the application on the ground that a party cannot summon the opposite side as his witness. 11. The court below, after adverting to the rival submissions, by the impugned Ext.P8 order, allowed Ext.P5 application in the following manner: “11. In the case on hand, the defendants' case is that, the power of attorney holder of the plaintiff who is sought to be summoned has issued three vouchers on receipt of rent by cash. The plaintiff, though filed ``` OP(C) 554/2023 ``` ``` 5 ``` the suit through the power of attorney, opted to mount the box by himself, instead of examining the power of attorney holder. Though the defendants confronted the vouchers to PW1, he did not admit the same. Order 8 Rule 1A(4) allows the defendants not to produce those documents that are to be confronted to the plaintiff's witnesses along with the written statement. Admittedly, the 3 witness is the power of attorney holder of the plaintiff. When that be so, there is every reason for the defendants to believe that she would mount the box on behalf of the plaintiff and they are justified in retaining the document with an expectation to confront the same to that witness. **Since the power of attorney holder is not examined and the plaintiff denied the vouchers confronted to him, the defendants are left with no other option to prove these documents. As already discussed, even assuming that the third witness is a party to the proceedings and that the defendants cannot summon her as a matter of right, it is not an absolute bar for examining such witnesses in the court.** As held by Hon'ble High Court in the dictum referred to above, the court, if finds it necessary to summon such witnesses, is competent to summon. At this juncture it is profitable to refer a dictum laid down by the Hon'ble High Court of Gujrat in Pushpaben Champaklal Shah and Another Vs. Rikhavdev Tirhram Sharma and Others (2006 KHC 3508) wherein the Hon'ble High Court referred to the judgment of Hon'ble High Court of Kerala in Jortin Antony's case (supra) and held that, though an application to summon the opposite party shall not be granted as a matter of course, at appropriate stage of hearing, the court can pass such an order keeping the facts of each case and the conduct of the contesting parties in the matter. It was a case where in a suit for specific performance, the power of attorney holder of the plaintiff, who was examined on behalf of the plaintiff, admitted certain documents and conveniently denied genuineness of plaintiff's signature thereon. Therefore the defendant applied for summoning the plaintiff as their witness for confronting documents. Hon'ble High Court in the peculiar facts and circumstances of that case allowed ``` OP(C) 554/2023 ``` ``` 6 ``` the application. Of course, going by the dictum laid down by the Hon'ble High Court in Jortin Antony's case (supra), a party cannot be summoned as a witness at the instance of the opposite party. **But the court has the power to summon such witness if satisfied that his evidence is necessary. Having regard to the facts and circumstance of the case and the defendants being left with no other way to prove the documents produced by them, I find it a fit case to invoke the power conferred upon the court under Order 21 Rule 14 to summon the 3[rd] witness, the power of attorney holder of the plaintiff.** In the result, petition is allowed. Issue summons to witnesses 1 to 3 cited in the witness list filed along with this petition. It is made clear that the 3[rd] witness is summoned since the court feels that she is the best person to speak about the vouchers produced by defendants. No order as to costs.” 12. In the case on hand, undisputedly, the suit was instituted by the petitioner through his wife and power of attorney holder Bindu Thressiamma Varghese. The respondents 1 and 2 have specifically contended in the written statement that the rent for the months of July, August and September, 2018 was paid in cash to the petitioner and vouchers were issued for the payment received. 13. When the parties went to trial, the petitioner himself chose to mount the box instead of his power of ``` OP(C) 554/2023 ``` ``` 7 ``` attorney holder. However, when the petitioner was confronted with the vouchers, he denied them. 14. Immediately, the respondents filed the application, to summon the agent of the petitioner, to confront her with the vouchers. 15. In **Jortin Antony** and **Managing Director, Kerala Books Publication Society** (supra) this Court has held that a party does not have the right to summon the opposite party. Nevertheless, discretion is bestowed on the court to decide, whether a party to a suit is to be permitted to be summoned at the instance of the opposite side. 16. In the instant case, Bindu Thressiamma Varghese, who is cited as witness No.3 in Ext.P5 witness list, is not a party to the suit. She, acting as the agent of the petitioner, has discharged all his functions, including the verification and institution of the plaint. Therefore, it is only to be assumed that, when the respondents 1 and 2 have averred in the written statement that the plaintiff had issued the vouchers, it includes the vouchers issued by the petitioner’s agent also. ``` OP(C) 554/2023 ``` ``` 8 ``` 17. It was in the above factual background, that the respondents filed the application to summon the petitioner’s agent to confront her with the vouchers. Even otherwise, when substantial justice is pitted against technical consideration, it is the former that overrides the latter, in order to establish the truth and to complete justice. Thus, this Court has no hesitation to give its imprimatur to the impugned order. 18. The principles laid down in **Jortin Antony** and **Managing Director, Kerala Books Publication Society** (supra) have no application to the facts and circumstances of the present case. 19. It is trite; the exercise of the power of 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 is restricted ``` OP(C) 554/20239 ``` 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 the wisdom and discretion exercised by the subordinate courts. On an overall conspectus of the pleadings and materials, and the cogent reasoning of the court below in the impugned order and the findings rendered above, this Court finds no ground to hold that the court below has overstepped its power of authority to invoke the power of superintendence of this Court under Article 227 of the Constitution of India. The original petition fails and is, hence, dismissed. ## **Sd/-** ## **C.S.DIAS, JUDGE** okb/3.3.23 //True copy// P.S. to Judge ``` OP(C) 554/2023 ``` ``` 10 ``` ## **`APPENDIX OF OP(C) 554/2023`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P1`|`TRUE COPY OF PLAINT IN O.S.13/2020 ON THE`| ||`FILE OF THE SUBORDINATE JUDGE OF HOSDURG`| ||`DATED 16.02.2020`| |`Exhibit P2`|`TRUE COPY OF THE WRITTEN STATEMENT FILED BY`| ||`RESPONDENTS 1 AND 2 IN O.S.13/2020 ON THE`| ||`FILE OF THE SUBORDINATE JUDGE OF HOSDURG`| ||`DATED 13.07.2020`| |`Exhibit P3`|`TRUE COPY OF THE WRITTEN STATEMENT FILED BY`| ||`THE 4TH RESPONDENT IN O.S.13/2020 ON THE FILE`| ||`OF THE SUBORDINATE JUDGE OF HOSDURG DATED`| ||`31.08.2022`| |`Exhibit P4`|`TRUE COPY OF THE WRITTEN STATEMENT FILED BY`| ||`THE 3RD RESPONDENT IN O.S.13/2020 ON THE FILE`| ||`OF THE SUBORDINATE JUDGE OF HOSDURG DATED`| ||`20.07.2020`| |`Exhibit P5`|`TRUE COPY OF I.A 7/2023 IN OS 13/2020 ON THE`| ||`FILE OF THE SUBORDINATE JUDGE OF HOSDURG.`| ||`DATED 20.02.2023`| |`Exhibit P6`|`TRUE COPY OF I.A.5/2023 IN OS 13/2020 ON THE`| ||`FILE OF THE SUBORDINATE JUDGE OF HOSDURG`| ||`DATED 20.02.2023`| |`Exhibit P7`|`TRUE COPY OF THE COUNTER IN I.A 7/2023 IN OS`| ||`13/2020 ON THE FILE OF SUBORDINATE JUDGE OF`| ||`HOSDURG DATED 23.02.2023`| |`Exhibit P8`|`TRUE COPY OF THE ORDER DATED 24.02.2023 IN`| ||`I.A 7/2023 IN OS 13/2020 FILED ON THE FILE OF`| ||`THE SUBORDINATE JUDGE HOSDURG`|