Reji P. Cherian & Saji P. Cheriyan v. Muhammed & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **WEDNESDAY, THE 6TH DAY OF NOVEMBER 2013/15TH KARTHIKA, 1935** ## **OP(C).No. 2892 of 2013 (O)** **--------------------------AGAINST THE ORDER/JUDGMENT IN OS 153/2006 of SUB COURT, MANJERI** ## **PETITIONER(S):** **--------------------------** ## **1. REJI P. CHERIAN,** - **S/O P.K. CHERIYAN, COMPANY EMPLOYEE KEEZHATTUR AMSOM DESOM, PERINTHALMANNA TALUK** **2. SAJI P. CHERIYAN,. S/O P.K. CHERIYAN, OWN AFFAIRS, KEEZHATTUR AMSOM DESOM PERINTHALMANNA TALUK** **BY ADVS.SRI.M.P.RAMNATH** **SRI.P.ABRAHAM CHERIAN SRI.P.RAJESH (KOTTAKKAL) SRI.JEN.V.KURIAKOSE SMT.UMA R.KAMATH** ## **RESPONDENT(S):** **----------------------------** ## **1. MUHAMMED,** **S/O MANAKKADAVAN MUHAMMED, BUSINESS, VALAMBUR AMSOM THIRURKKAD DESOM, PERINTHALMANNA TALUK MALAPPURAM DISTRICT 676 505.** ## **2. THONIKKARA MUHAMMEDALI,** **S/O ABU HAJI, THONIKKARA (H) VALAMBUR AMSOM THIRURKAD DESOM, PERINTHALMANNA TALUK REPRESENTED BY POWER OF ATTORNEY HOLDER SHAMEER BABU, S/O MOOSA RESIDINGA AT VALAMBUR AMSOM, THIRURKAD DESOM PERINTHALMANNA TALUK, MALAPPURAM DISTRICT 676 505.** ## **3. PARAMBAN NIYAZ,** **S/O MUHAMMEDALI, EDAVANNA VILLAGE, ERANAD TALUK MALAPPURAM DISTRICT 676 505.** ## **4. KONDOTTY HUSSAIN,** **S/O ALAVI, AGRICULTURIST, MANKADA VILLAGE, VELLILA DESOM, PERINTHALMANNA TALUK 676 505.** **2** ## **OP(C).No. 2892 of 2013 (O)** ## **5. ELACHOLA ABUBACKER SIDDIQUE,** - **S/O AHAMMED, BUSINESS, KOOTTILANGADI VILLAGE PERINTHALMANNA TALUK, MALAPPURAM DISTIRCT 676 505.** ## **6. KOORIMANNIL VALIYAMANNIL ANWAR,** - **S/O SAINUDHEEN, ANAKKAYAM AMSOM AND DESOM ERANAD TLAUK, MALAPPURAM DISTRICT 676 505.** ## **R1 BY ADV. SRI.K.M.SATHYANATHA MENON** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **---------------------------** **3** ## **OP(C).No. 2892 of 2013 (O)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** **EXHIBIT P1: PHOTO COPY OF THE AGREEMENT DATED 05-09-2003 BETWEEN THE PETITIONERS/ PLAINTIFFS AND OTHERS AND THE IST RESPONDENT/ 3RD DEFENDANT.** **EXHIBIT P2: PHOTO COPY OF IA NO 827/2013 FILED BY THE IST REPSONDENT HEREIN/ 3RD DEFENDANT IN OS 153/2006 BEFORE THE HON'BLE SUB COURT, MANJERI.** **EXHIBIT P3: PHOTO COPY OF THE OBJECTIONS FILED BY THE PETITIONERS HEREIN AS RESPONDENTS 1 & 2 TO IA 827/2013 IN OS 153/2006 SUB COURT, MANJERI.** - **EXHIBIT P4: PHOTO COPY OF THE ORDER DATED 24-06-2013 IN IA NO 827/2013 IN OS 153/2006 OF THE HON'BLE SUBORDINATE JUDGE'S COURT, MANJERI.** ## **RESPONDENT(S)' EXHIBITS NIL** ## **---------------------------------------** ## **/TRUE COPY/** ## **P.A. TO JUDGE** **VPV** ## **P.N.RAVINDRAN, J.** =-=-=-=-=-=-=-=-=-=-=-=-= ## **O.P.(C)No.2892 of 2013** =-=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 6[th] day of November, 2013** ## **JUDGMENT** The petitioners are the plaintiffs in O.S.No.153 of 2006 on the file of the Court of the Subordinate Judge of Manjeri. The first respondent is the third defendant and respondents 2 to 6 are defendants 1, 2 and 4 to 6 respectively therein. The suit instituted by the petitioners is one for a declaration that an agreement for sale dated 5.9.2003 entered into between them and others with the third defendant (later marked as Ext.A1) and the power of attorney dated 5.9.2003 executed by him and others in favour of the second defendant are all sham documents as per which and under which, the defendants would not and could not get any right title, interest or possession over the plaint schedule property (C schedule property in the agreement dated 5.9.2003) and that the second defendant would not get any right or authority under the power of attorney dated 5.9.2003 to register any sale deed in the name of the first defendant or anyone else and that the first defendant would not and did not derive any title to or interest or possession over the property scheduled to the plaint as per sale deed dated 17.10.2003 registered as document No.4161/2003 of Melattoor sub **O.P.(C)No.2892 of 2013** **2** registry. The petitioners have also sought a declaration that the plaint schedule property continues to be in the ownership and possession of the plaintiffs as owners. 2. The first plaintiff was examined as PW1 on 9.3.2013 and Exts.A1 to A4 and C1 were marked. On the side of the defendants, the first defendant was examined as DW1 on 19.3.2013 and Exts.B1 and B2 were marked. After the first plaintiff was examined as PW1, the plaintiffs filed I.A.No.700 of 2013 for an order directing the defendants, more particularly defendants 1 and 3, to produce the duplicate of the agreement dated 5.9.2003 along with the plan, if any, forming part of the said agreement. The first plaintiff had in the affidavit filed by him in support of the said application averred that he had produced and marked the agreement entered into between him and his family members on the one side and the third defendant on the other as Ext.A1, that there is a recital in Ext.A1 regarding a plan but no such plan was prepared or handed over at the time of the agreement and that no plan formed part of the agreement. He had averred that though the line of crossexamination was on the basis that a plan was prepared, no such plan was prepared and it did not form part of the agreement. He further deposed that the recital in the agreement in that regard is only a mistake. The first plaintiff proceeded to state in the affidavit **O.P.(C)No.2892 of 2013** **3** that the agreement itself recites that it is prepared in duplicate and therefore, in order to clarify the situation and prove the genuineness and truthfulness of his statement that no plan was prepared and the recital in Ext.A1 regarding the plan is only a mistake, it is necessary that the respondents or whoever among them is in custody of the agreement dated 5.9.2003, are directed to produce the duplicate of the agreement along with the plan, if any, forming part of the agreement. That application was allowed and the duplicate copy of the agreement dated 5.9.2003 with the plan appended to it was produced by the third defendant on 18.3.2013. The third defendant thereafter filed I.A.No.827 of 2013 under section 151 of the Code of Civil Procedure praying that the evidence may be reopened for the purpose of marking a copy of the agreement produced by him on 18.3.2013 pursuant to the order passed on I.A.No.700 of 2013. The petitioners opposed the said application by filing Ext.P3 objections dated 26.3.2013. The trial court considered the rival contentions and allowed I.A.No.827 of 2013 by Ext.P4 order passed on 24.6.2013. The said order is under challenge in this original petition. 3. I heard Sri.M.P.Ramnath, learned counsel appearing for the petitioners and Sri.K.M.Sathyanatha Menon, learned counsel appearing for the first respondent. Sri.M.P.Ramnath, learned **O.P.(C)No.2892 of 2013** **4** counsel appearing for the petitioners contended that in view of the deletion of rule 17A from Order XVIII of the Code of Civil Procedure, the state of affairs that existed as on 1.2.1977 stood restored and therefore, the third defendant could not have applied for reopening the evidence for the purpose of marking the duplicate of the agreement dated 5.9.2003 produced by him on 18.3.2013. The learned counsel contended that as the third defendant was in possession of the duplicate of the agreement dated 5.9.2003 and had produced it on 18.3.2013 pursuant to the order passed by the court below, he cannot plead that it was not in his knowledge or could not be produced by him earlier and therefore, the court below erred in allowing the application to reopen the evidence. The learned counsel also submitted that even assuming that the application was liable to be allowed, the court below should not have entered a finding regarding the genuineness and authenticity of the duplicate copy of the agreement dated 5.9.2003. 4. Per contra, Sri.K.M.Sathyanatha Menon, learned counsel appearing for the first respondent contended that the plaintiffs had sought production of the duplicate copy of the agreement dated 5.9.2003 for the purpose of establishing their case that the plan did not form part of Ext.A1 agreement and therefore, the plaintiffs cannot object to the evidence being reopened for the purpose of **O.P.(C)No.2892 of 2013** **5** formally proving and marking the duplicate copy of the agreement in evidence. The learned counsel also contended that the mere fact that rule 17A has been deleted from Order XVIII of the Code of Civil Procedure will not stand in the way of the court from reopening the evidence if the circumstances warrant such a course of action. 5. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. The Apex Court has in **Salem Advocate Bar Association, Tamil Nadu v. Union of India** [(2005) 6 SCC 344) held after referring to the earlier decision in **Salem Advocate Bar Association v. Union of India** [(2003) 1 SCC 49] that deletion of Order XVIII rule 17A does not disentitle production of evidence at a later stage. It was held that on a party satisfying the court that after exercise of due diligence that evidence was not within his knowledge or could not be produced at the time the party was leading the evidence, the court may permit leading of such evidence at a later stage on such terms as may appear to be just. In the instant case, it was not the defendants who sought production of the duplicate of the agreement dated 5.9.2003 into evidence. It was the plaintiffs who filed I.A.No.700 of 2013 to cause its production after the first plaintiff was examined as PW1 on 9.3.2013. That application was allowed and pursuant to the **O.P.(C)No.2892 of 2013** **6** order passed thereon, the duplicate of the agreement dated 5.9.2003 was produced by the third defendant in court on 18.3.2013. The first defendant was examined on 19.3.2013. The plaintiffs had sought production of the duplicate of the agreement for the purpose of substantiating their contention that a plan did not form part of the agreement dated 5.9.2003. Without the duplicate of the agreement being formally proved and marked, no reliance can be placed on it and therefore, even without the defendants applying for reopening the evidence the court below could have on its own reopened the evidence for the purpose of marking the said document in evidence. That apart, the third defendant had in the affidavit filed in support of I.A.No.827 of 2013 averred that though the document was produced on 18.3.2003, it was omitted to be marked at the time of trial and therefore, the evidence may be reopened for the purpose of marking the document in evidence. As stated earlier, the first defendant was examined only on 19.3.2013, the day after the document was produced. Since the document was produced before the witness on the side of the defendants was examined, it cannot be said that it is a case of the evidence being reopened for the purpose of marking a document which was produced after the defence witnesses were examined. In such circumstances, as the evidence is sought to be reopened to mark a **O.P.(C)No.2892 of 2013** **7** document, the production of which was caused by the plaintiffs, I am persuaded to take a view that no exception can be taken to the order passed by the court below allowing the application to reopen the evidence. I am however of the opinion that the court below should not have ventured to form an opinion regarding the admissibility of the document or its authenticity and genuineness and should have confined itself to the question whether the evidence should be reopened for the purpose of marking a document, the production of which was caused by the plaintiffs. I accordingly vacate the observations and findings regarding the authenticity and genuineness of the duplicate of Ext.A1 agreement dated 5.9.2003 and the plan accompanying it. The original petition fails and is dismissed but with the aforesaid observation. Sd/- **P.N.RAVINDRAN JUDGE** ## **vpv**