R.S. Manoj Kumar v. G. Satheesan and Others (OP(C) No. 209 of 2022)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 23[RD] DAY OF FEBRUARY 2022 / 4TH PHALGUNA,** ## **1943** ## **OP(C) NO. 209 OF 2022** **AGAINST THE ORDER IN I.A.No.6/2021 IN OS 112/2019 OF PRINCIPAL MUNSIFF COURT , KOLLAM** ## **PETITIONER/5TH RESPONDENT:** R.S.MANOJ KUMAR, AGED 48 YEARS, S/O.RAMACHANDRAN PILLAI, ATTOOMADAM, NADUVILAKARA, UMAYANALLOOR P.O, KOLLAM – 691589. BY ADV. SRI.SAJU J PANICKER ## **RESPONDENTS/PLAINTIFFS/DEFENDANTS 1 TO 4, 6 TO 11:** 1 G.SATHEESAN, AGED 53 YEARS, S/O. GOPALA PILLAI, THEKKEVELLI KADU, NADUVILAKARA, PULLICHIRA P.O, KOLLAM – 691304. 2 JAYAPRAKASH, AGED 47 YEARS, S/O.GOPALA PILLAI, KOTTUR VEEDU, PULLICHIRA, UMAYANALLOOR P.O, KOLLAM – 691589. 3 THE REGISTRAR, NSS KARAYOGAM, PERUNNAI, CHANGANACHERRY, KOTTAYAM - 686102. 4 THE KOLLAM TALUK NSS UNION, ANANDAVALLESHWARAM, KOLLAM DISTRICT - 691007, REPRESENTED BY ITS PRESIDENT DR. G.GOPAKUMAR. 5 S. CHANDRASEKHARAN NAIR, AGED 66 YEARS, S/O.LATE SREEDHARAN PILLAI, VELIKATTU VEEDU, NADUVILAKARA, PULLICHIRA P.O, KOLLAM - 691304. 6 GOPINATHAN PILLAI AGED 80 YEARS S/O. LATE NANU PILLAI, SANTHOSH BHAVANA, NADUVILAKARA, UMAYANALLOOR P.O, KOLLAM – 691589. **OP(C) No.209 of 2022** 2 7 K. SASIDHARAN, AGED 46 YEARS S/O.LATE KUNJURAMAN PILLAI, KOCHU MAVELIL, NADUVILAKARA, PULLICHIRA P.O, KOLLAM - 691304. 8 N. MURALIDHARAN NAIR, AGED 65 YEARS, S/O.LATE NARAYANA PILLAI, AMBADI, NADUVILAKARA, UMAYANALLOOR P.O, KOLLAM – 691589. 9 P.PRATHAPSENAN PILLAI, AGED 63 YEARS, S/O. LATE PARAMESWARAN PILLAI, LEKSHMI NIVAS, NADUVILAKARA, UMAYANALLOOR P.O, KOLLAM – 691589. 10 S. GOPALAKRISHNAN NAIR, AGED 58 YEARS, S/O.LATE SANKARAN PILLAI, HARI SREE, NADUVILAKARA, UMAYANALLOOR P.O, KOLLAM – 691589. 11 E.C. SASIDHARAN NAIR, AGED 71 YEARS, S/O.CHELLAPPAN PILLAI, ASWATHY, NADUVILAKARA, UMAYANALLOOR P.O, KOLLAM – 691589. 12 THE NADUVILAKARA 447 NO.NSS KARAYOGAM, UMAYANALLOOR, KOLLAM, REPRESENTED BY ITS SECRETARY. BY ADVS. SRI.B.RENJITHKUMAR SRI.JOSE ANTONY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP(C) No.209 of 2022** 3 ## **JUDGMENT** This Original Petition under Article 227 of the Constitution of India has been filed by the 5[th] defendant in O.S. No.112/2019 on the file of Principal Munsiff Court, Kollam. 2. In this case, the 5[th] defendant/ petitioner impugns order dated 20.01.2022 in I.A.No.6/2021 in O.S. No.112/2019. As per the impugned order, the learned Munsiff issued summons against the 5[th] defendant as a witness with direction to produce five documents and give evidence in support of the said documents. 3. Heard the learned counsel for the petitioner/5[th] defendant as well as the learned counsel for the respondents 1 and 2/ plaintiffs. As far as the other respondents herein are concerned, they are co-defendants and, therefore, the interest of the 5[th] defendant is at par with them. Therefore, ## **OP(C) No.209 of 2022** **==> picture [7 x 9] intentionally omitted <==** notice to R3 to R12 is not necessary. Accordingly, notice to them is dispensed with. 4. The learned counsel for the petitioner argued at length to convince this Court that a party to the suit cannot compel another party to the suit to be a witness and such a course of action is impermissible. The learned counsel fairly conceded that the court can summon any person as a witness, inclusive of a party to the suit. The learned counsel highlighted the decision reported in _**Jortin Antony v. S.P.D Marthanda Varma**_ **[2000 (2) KLT** **680].** The said decision is extracted as follows: _it is clear from R.14 of O.16 of the Code as amended that the court has the power when it thinks it necessary to examine a party to the suit or to compel a party to the suit to give evidence so as to enable the court to take a decision satisfactory to its conscience. But this power available to the court and made specifically available by the amendment brought to_ **OP(C) No.209 of 2022** 5 _R.14 cannot be confused with the right of a party to call upon an opposite party to give evidence on his behalf. Clearly, when a party to the suit does not mount the box to speak in support of his case in the pleading that can be a circumstance which would enable the court to accept the case of the opposite party. That can also be a circumstance where the court can draw an adverse inference against the party who has withheld himself from the witness box. But those consequences arising out of non-appearance of a party as the witness cannot confer a right on a party to the suit to cite his opponent as his own witness. The power available to the Court under R.14 of O.16 cannot be confused with a right to a party to the suit. Whereas R.7 enables the court to call on any person whether a party to the suit or a nonparty to the suit who is present in court to give evidence and provides the consequences for the failure of that person to give evidence, R.14 also enables the court to summon a person to give evidence even if he is not present in court whether he be a party or only a witness of its own and in furtherance of its quest to give a just decision in the cause. As regards a party to the suit even this power was not available_ **OP(C) No.209 of 2022** 6 _until the year 1976 and this power becomes available only after the insertion of the amendment of 1976. All that R.21 says is that in case where the court thinks that it is necessary to direct a party evidence, the procedure regarding a witness could be applied by the court regarding that party as well. We are thus of the view that a party to the suit does not have a right as such to summon the opposite party to give evidence. It is really left to the court, possibly after the evidence of all the witnesses made available is completed, to consider whether the examination of one of the parties who has not come before court, is necessary and in that context if found necessary, to compel that party to give evidence in exercise of its jurisdiction under R.14 of O.16 of the Code. A plaintiff like the one in the present case, cannot as a matter of course include the defendant in his schedule of witnesses and as of right seek the issuance of summons to the defendant for being examined as a witness on his own behalf._ Thus, it is submitted that, the order impugned is erroneous and the same is liable to be interfered and set aside. ## **OP(C) No.209 of 2022** 7 5. Whereas, the learned counsel for the respondents 1 and 2/plaintiffs in the suit, submitted that the election of the 11[th] defendant in the suit is a direct question to be decided in the suit and, therefore, examination of the custodian of the records, viz., minutes book, membership register, Nal Vazhi during 2017-2021, counter foil of receipts, audit report and voters list as on 03.02.2019 is absolutely necessary to decide the matter in issue in this case. Hence the custodian is none other than the 5[th] defendant and the evidence of the 5[th] defendant in this regard is absolutely necessary to decide the matter in controversy. Therefore, there is no absolute bar in such cases to examine a party as a witness at the instance of the another party in the same suit. The learned counsel for the respondents 1 and 2/plaintiffs pointed out the decisions highlighted by the learned **OP(C) No.209 of 2022** 8 Munsiff in the order impugned viz., _**Jortin Antony's case**_ (Supra); _**Kalliyara Estates Pvt. Ltd, Padinjaremuri v. State of Kerala and Ors.**_ **[2012 (3) KHC 386];** _**Sree Jain Swetanbar Terapanthi Vid v. Phundan Singh & Ors.**_ **[1999 KHC 999].** He also highlighted the observation made by the learned Munsiff in paragraph No.9 of the impugned order. For clarity, paragraph No.9 is extracted hereunder: _9. I have gone through the bye law of the Karayogam. Cl.32 provides that Treasurer shall be in charge of money and that "Pothuyogan has to get the confidence of Treasurer. Where as Cl.36 is specific that all records shall be in the custody of the Secretary. On that circumstance, the argument of the learned counsel for the respondent will not stand. Another argument taken by the respondent to rebut the petition is that present Secretary has no knowledge regarding the incidents prior to his term and hence summoning him would not serve any purpose. But he being the custodian of the document sought for, I am of the view that there is nothing among in summoning him to produce the_ **OP(C) No.209 of 2022** 9 _documents sought for. Further the learned counsel has also argued that this IA is beyond the scope of pleading in the suit and hence as per the decision of the Hon'ble High Court of Kerala in_ _**Sree Jain Swetanbar**_ _**Terapanthi Vid v.Phundan Singh & Ors. Reported in 1999 KHC 999** , that No IA cannot be allowed which is beyond the scope of relief sought in the suit. It is quite evident that the relief sought in the suit is for cancellation of the election and for auditing the balance - sheet for a period from 2013 2018. In that circumstances, I do not have any hesitation in holding that the documents are to be examined for just decision of the suit. However the prayer in this IA is not allowed in whole. As deposed by DWI and evident from Byelaw, in case of election conducted through Pothuyogam, there is no published voters list. Hence the prayer regarding production of voters list stands rejected and prayer regarding production of other documents is to be allowed. But this court is of the view that production of document beyond the period of election is not necessary._ 6. I have perused the copy of plaint in this matter produced as Ext.P1. In Ext.P1, the **OP(C) No.209 of 2022** 10 prayers are to declare election of defendants 3 to 10 as office bearers of 447 No.NSS, Karayogam held on 03.02.2019 to be void and also for a mandatory injunction directing to conduct audit of the income and expenditure statements of the Karayogam for the past five years. Further grant of injunction restraining the defendants 3 to 10 from conducting the business of the office also prayed for. 7. Thus, it appears that the matter in issue is the procedure violation in the election held on 03.02.2019 and mismanagement of the accounts of the Karayogam. In such a case, the best evidence to decide the issues are document Nos.1 to 5, summoned by the learned Munsiff as per the order impugned. It is true that the learned Munsiff also issued summons to the 5[th] defendant to give evidence also. 8. Before conclusion, suppression of **OP(C) No.209 of 2022** 11 material facts in this matter required to be referred. At the time of filing this Original Petition, it has been submitted by the learned counsel for the petitioner that the case was not listed and the trial not started. In this Original Petition also, such recitals stated. However, as per the report filed by the learned Munsiff on 16.02.2022, it is stated that in this case, the matter was listed on 16.12.2021 and, thereafter, PW1's evidence was completed. Thereafter on 11.01.2022, the evidence on both sides were completed and the plaintiffs filed I.A.No.6/2021 (led to the order impugned) and the same was allowed. Thereafter the petitioner herein filed two petitions and kept the order in abeyance for a period of three weeks and this Original Petition has been filed on 02.02.2022 after suppressing the above material facts. It is submitted by the learned counsel for the ## **OP(C) No.209 of 2022** 12 petitioner that the 5[th] defendant/petitioner not informed these matters to him. Though the said submission cannot be accepted, I am not inclined to venture on it. But I just referred the suppression of material facts which misled this Court, to express that suppression of material facts alone is a ground to disallow prayers canvassed after suppressing material facts. 9. No doubt, the legal position is no more _res integra_ on the point that a party to a suit has no absolute right to summon and examine the opposite party as a witness. However, in cases, wherein examination of a party to the suit and production of documents by the party in the suit are absolutely necessary to decide the matter in issue, the Court has the power under Order 16 Rule 14 of CPC to summon and examine a party as a witness for the said purpose. In the case on ## **OP(C) No.209 of 2022** ## 13 hand, having considered the prayers in the suit along with the order impugned, I am of the view that the learned Munsiff while allowing I.A.No.6/2021 in part, exercised the said power after holding that such an action is necessary to decide the matter in issue. Therefore the learned Munsiff is justified in summoning the 5[th] defendant as a witness for examining and for producing documents 1 to 5 mentioned herein above, so as to decide the case properly. Since I found that the order impugned is in order and the same does not suffer from any perversity, arbitrariness or absolute illegality, the same is confirmed and the Original Petition stands dismissed. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww **OP(C) No.209 of 2022** 14 ## **APPENDIX OF OP(C) 209/2022** PETITIONER'S EXHIBITS: EXHIBIT P1 THE TRUE COPY OF THE PLAINT IN OS NO.112/2019 OF THE MUNSIFF COURT, KOLLAM. - EXHIBIT P2 THE TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN OS.112/2019 OF THE MUNSIFF COURT, KOLLAM. - EXHIBIT P3 THE TRUE COPY OF IA 1354/2019 IN OS.112/2019 OF THE MUNSIFF COURT, KOLLAM. - EXHIBIT P4 THE TRUE COPY OF THE ORDER IN IA 1354 OF 2019 IN OS.112/2019 OF THE MUNSIFF COURT, KOLLAM. - EXHIBIT P5 THE TRUE COPY OF I.A 6 OF 2021 IN OS.112/2019 OF THE MUNSIFF COURT, KOLLAM. EXHIBIT P6 THE TRUE COPY OF THE OBJECTION FILED IN IA 6 OF 2021 IN OS.112/2019 OF THE MUNSIFF COURT, KOLLAM. EXHIBIT P7 THE TRUE COPY OF THE ORDER DATED 20.01.2022 IN I.A NO. 6/2021 IN OS.112/2019 OF THE MUNSIFF COURT, KOLLAM.