Ravindran Nair v. Latha Nair

``` OP(C) NO. 731 OF 2023 ``` ``` 1 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 22[ND] DAY OF MARCH 2023 / 1ST CHAITHRA, 1945 OP(C) NO. 731 OF 2023 ``` ``` AGAINST THE ORDER IN I.A NOS.8/2022 AND 9/2022 IN OS 392/2016 OF III ADDITIONAL MUNSIFF COURT,THIRUVANANTHAPURAM ``` ## **`PETITIONER/PETITIONER/PLAINTIFF`** ``` RAVINDRAN NAIR.V AGED 69 YEARS S/O. VELAYUDHAN PILLAI, T.C. 10/2202(6), CHATHRAMOOLA VEEDU, KANJIRAMPARA P.O., THIRUVANANTHAPURAM, PIN - 695030 BY ADVS. K.T.SHYAMKUMAR HARISH R. MENON K.N.ABHA A.G.PRASANTH ALEENA SEBASTIAN ``` ## **`RESPONDENT/COUNTER PETITIONER/DEFENDANT:`** ``` LATHA NAIR D/O. RAJAMMA, TC 6/983-1, PRA-3, SREE MADHAVAM, PADAYANI ROAD, VATTIYOORKAVU, THIRUVANANTHAPURAM, PIN – 695013 ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 731 OF 2023 ``` ``` 2 ``` ## **JUDGMENT** Aggrieved by Exts.P8 and P9 orders passed in I.A Nos.8 and 9 of 2022 in O.S No.392/2016 by the Court of the Additional Munisff-III, Thiruvananthapuram, the plaintiff has filed the original petition. The respondent is the defendant in the suit. 2. The relevant background facts leading to Ext.P9 order are: (i). The petitioner has filed the suit against the respondent for a decree of fixation of boundary, recovery of possession of plaint ‘B” schedule property and other consequential reliefs. (ii) The suit is resisted by the respondent through Ext.P2 written statement. (iii) At the instance of the petitioner, an Advocate Commissioner has filed Ext.P3 report. ``` OP(C) NO. 731 OF 2023 ``` ``` 3 ``` (iv). The parties went to trial. The petitioner and the Advocate Commissioner were examined as PWs1 and 2 and Exts.A1 to A6 and Exts.C1 and C1(a) were marked through them. The respondent did not let in any oral evidence, but marked six documents on her side. (v). During cross-examination of the petitioner, certain questions were put to him regarding the identity of the property. (vi) Then the counsel for the petitioner immediately filed an application to re-open the evidence, but the same was dismissed. (vii) The petitioner changed his counsel and appointed a new counsel. (viii) Subsequently, the petitioner filed I.A No.8/2022 in (Ext.P4) to re-open the evidence and I.A No.9/2022 (Ext.P5) to take out a survey commission.The applications were opposed by the respondent through Exts.P6 and P7 counter affidavits. ``` OP(C) NO. 731 OF 2023 ``` ``` 4 ``` (ix) The court below, by the impugned Exts.P8 and P9 orders, dismissed Exts.P4 and P5 applications. (x) Exts.P8 and P9 orders are patently wrong and erroneous. Hence, the original petition. 3. Heard; Sri.Harish.R.Menon, the learned counsel appearing for the petitioner, on admission. 4. The short point is, whether there is any error in Exts.P8 and P9 orders. 5. The plaint was instituted as early as on 18.2.2016. The respondent has resisted the suit through Ext.P2 written statement, which was filed on 18.4.2016. 6. At the instance of the petitioner, an Advocate Commissioner has filed Ext.P3 report, that too on 22.2.2016. 7. After six long years, the suit was listed for trial. The petitioner was cross-examined on 28.9.2022. He was asked about the lie and location of the property based on ``` OP(C) NO. 731 OF 2023 ``` ``` 5 ``` the documents produced by the respondent. Although an application was filed to re-open the evidence, the same was dismissed and the order has attained finality. 8. Later, the petitioner changed his counsel and filed Exts.P4 and P5 applications, to re-open the evidence and to take out a survey commission. 9. Indisputably, the suit stands posted for final hearing. 10. In **Ram Rati v. Mange Ram (D) through Lrs and others** [2016 KHC 6187], the Hon’ble Supreme Court has categorically held that the party does not have a right to re-open the evidence. Even though the discretionary power is conferred on the court to re-open the evidence, the same has to be sparingly exercised even if it does not cause prejudice to the opposite side. 11. In the case on hand, the petitioner was examined as early as on 28.9.2022. An earlier application to re-open the evidence was dismissed. ``` OP(C) NO. 731 OF 2023 ``` ``` 6 ``` Without challenging the said order, the present Ext.P4 application is filed for identical relief, to re-open the evidence. The petitioner has also sought to appoint a survey commission, in order to fill up the lacuna that has occurred in his cross-examination. 12. Going by the law laid down in **Ram Rathi** and also taking into consideration the fact that the suit is of the year 2016, I am not inclined to exercise the discretionary powers of this Court under Order 18, Rule 17 of the Code of Civil Procedure. The court below has not overstepped its bounds of authority or power in passing Exts.P8 and P9 orders warranting interference by this Court under Article 227 of the Constitution of India. The original petition is merit-less and is consequentially dismissed. ## **Sd/- C.S.DIAS** ma/22.3.2023 **JUDGE** ``` OP(C) NO. 731 OF 2023 ``` ``` 7 ``` ## **`APPENDIX OF OP(C) 731/2023`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1A TRUE COPY OF THE PLAINT DATED 18.2.2016 IN OS NO. 392/2016 ON THE FILE OF THE IIIRD ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM ``` ``` Exhibit P2TRUE COPY OF THE WRITTEN STATEMENT DATED 18.4.2016 FILED BY THE DEFENDANT IN OS 392/2016 Exhibit-P3TRUE COPY OF THE REPORT DATED 22.2.2106 OF THE ADVOCATE COMMISSIONER SUBMITTED IN I.A. NO: 1840/2016 IN O.S. NO: 392/2016 ON THE FILE OF THE IIIRD ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM ``` ``` Exhibit-P4TRUE COPY OF THE APPLICATION FOR REOPENING THE EVIDENCE FILED AS I.A. NO: 8/2022 IN O.S. NO: 392/2016 ON THE FILE OF THE IIIRD ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM DATED 12.12.2022 ``` ``` Exhibit P5TRUE COPY OF THE APPLICATION FOR APPOINTMENT OF A SURVEYOR TO ASSIST THE ADVOCATE COMMISSIONER TO MEASURE THE PROPERTY FILED AS I.A. NO: 9/2022 IN O.S. NO: 392/2016 ON THE FILE OF THE IIIRD ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM DATED 12.12.2022 ``` ``` ExhibitP6A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT HEREIN IN I.A. NO: 8/2022 IN O.S. NO: 392/2016 ON THE FILE OF THE IIIRD ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM ``` ``` Exhibit P7TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT IN I.A. NO: 9/2022 IN O.S. NO: 392/2016 N THE FILE OF THE IIIRD ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM DATED 15.12.2022 ``` ``` Exhibit P8A TRUE COPY OF THE ORDER PASSED BY THE COURT BELOW IN IA NO 8/2022 IN OS NO. 392/2016 DATED 28-2-2023 OF THE IIIRD ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM ``` ``` Exhibit P9A TRUE COPY OF THE ORDER PASSED BY THE COURT BELOW IN IA NO 9/2022 IN OS NO. 392/2016 DATED 28-2-2023 OF THE IIIRD ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM ``` ``` Exhibit TRUE COPY OF I.A. NO: 1840/2016 IN O.S.NO: P10392/2016 ON THE FILE OF THE IIIRD ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM DATED 18.2.2016 ``` ``` OP(C) NO. 731 OF 2023 ``` ``` 8 ```