Thomas Eugine v. Lourd Mary, Teena Bella Barbara, Benson Thomas, Berin Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 7TH DAY OF OCTOBER 2016/15TH ASWINA, 1938** ## **OP(C).No. 815 of 2015 (O)** **-------------------------(IA.NO.185/2015 IN OS.NO.167/2010 OF SUB COURT, NEYYATTINKARA)** **---------------------** ## **PETITIONER :** ## **---------------------** **THOMAS EUGINE, S/O.THOMAS, AGED 61 YEARS, RESIDING AT VRINDAVAN, KOTTAMPALLY ROAD, KATTAKKADA, KULATHUMMAL VILLAGE, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU** **RESPONDENT(S):** **---------------------------** **1. LOURD MARY, D/O.MUTHAMMAL, RESIDING AT BARBARA NIVAS, KARUMKULAM P.O., KARUMKULAM VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM-695 121.** **2. TEENA BELLA BARBARA, D/O.LOURD MARY, RESIDING AT 48/264, VASANTHA GARDENS, SECOND STREET, AYANAVARAM, CHENNAI-23.** ## **3. BENSON THOMAS, S/O.LATE THOMAS BROON.** **4. BERIN THOMAS, S/O.LATE THOMAS BROON, RESPONDENTS 3 AND 4 ARE RESIDING AT BARBARA NIVAS, KARUMKULAM P.O., KARUMKULAM VILLAGE, NEYYATTINKARA, THIRUVANANTHHAPURAM-695 121.** **R1 BY ADVS. SRI.V.G.ARUN SRI.ANOOP BHASKAR** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **OP(C).No. 815 of 2015 (O) -------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ---------------------------------------** **EXT.P1. TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE 3RD RESPONDENT DATED 22/9/2014. EXT.P2. TRUE COPY OF THE IA NO.185/2015 IN OS NO.167/2010 ON THE FILE OF THE SUB COURT, NEYYATTINKARA DATED 10/2/2015. EXT.P3. TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER DATED 11/2/2015. EXT.P4. TRUE COPY OF THE ORDER IN IA NO.185/2015 IN OS NO.167/2010 ON THE FILE OF THE SUBORDINATE JUDGE OF NEYYATTINKARA DATED 13/2/2015.** **RESPONDENT(S)' EXHIBITS: NIL -------------------------------------------** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## K.RAMAKRISHNAN, J. =================== O.P. (C). No.815 of 2015 ======================= Dated this the 7[th] day of October, 2016 ## ORDER This is application filed by the petitioner challenging Ext.P4 order passed by the court below in I.A.185 of 2015 in O.S.167 of 2010 on the file of the Sub Court, Neyyattinkara under Article 227 of the Constitution of India. 2. The petitioner is the plaintiff in O.S.167 of 2010 on the file of the Sub Court, Neyyattinkara which was filed by him for recovery of money from the respondents. The respondents filed written statements denying the transaction. 1[St] respondent is the mother of other respondents 2 to 4. The specific case of the 1[st] respondent was that on receipt of the lawyer notice, she had sent a letter to the petitioner eliciting the true facts. The suit was listed for trial and plaintiff was examined and thereafter after closure of the plaintiff's evidence and 3[rd] defendant was examined as DW1 and one witness was examined as DW2 on the side of the defendants. 3[rd] defendant filed Ext.P1 proof affidavit in which he had stated that for the lawyers notice, 1[st] defendant had sent a letter stating the facts. They have not produced the letter said to O.P. (C). No.815 of 2015 2 have been sent by DW1. Thereafter, the 1[st] defendant/first respondent herein filed Ext.P2 application as I.A.185 of 2014 to reopen the evidence and permit her to be examined and the petitioner filed Ext.P3 objection. But the court below allowed the application evidenced by Ext.P4 order which is being challenged by the petitioner by filing this petition. 3. Heard Shri P.S. Appu counsel appearing for the petitioner and Shri. K.Arun V.G. counsel appearing for the respondents. 4. The counsel for the petitioner submitted that even in proof affidavit filed by DW1 who is the 3[rd] defendant in the suit, mention was made about by a letter sent by 1[st] defendant. But they have not produced the same. Further a witness was also examined on their case. It is thereafter that the 1[st] defendant filed the petition to reopen the evidence and permit her to be examined as a witness. The court below had not applied mind judiciously and considered the bar under order 18 Rule 3(A) as a party witness cannot be examined after examination of the witnesses in the case without the leave of the court. Further such practice has been deprecated by the Hon'ble Supreme Court and he had relied on the decision reported in **Bagai Construction v M/sGupta** O.P. (C). No.815 of 2015 3 ## **Building Material Stores** [2013 (I) KHCC SN 37]. 5. On the other hand, the counsel for the respondents submitted that even in the written statements they have stated that a reply has been sent by the 1[st] respondent by way of letter to the lawyer's notice. Further the petitioner has only produced the proof affidavit of the 3[rd] defendant. But in the cross examination he had stated that he had no personal knowledge about the sending of letter and that will be within the knowledge of the 1[st] defendant alone. DW2 was examined not to prove this aspect but only to prove that there was no money transaction between them and the transaction stated by the plaintiff is not correct. So when it has become necessary to examine DW1 to prove this fact, the application was filed and the same was allowed by the court below rightly and there is no illegality committed by the court below. He had relied on the decision reported by **Sadasivan v Dinakaran** [1988 (1) KLT 20] in support of his case. 6. It is an admitted fact that the petitioner as plaintiff filed the suit for realisation of the amount from the defendants. The defendants have denied the transaction as claimed in the plaint. It is also in a way admitted though not produced the copy of the written statement that even in the written statement the defendants O.P. (C). No.815 of 2015 4 had a case that the 1[st] defendant had sent a reply in her personal capacity for the lawyer notice issued stating the true facts. It is true that the plaintiff's evidence was over and thereafter, 3[rd] defendant was examined as DW1 and a witness by name Roy was examined as DW2 on the side of the defendants. It is also true that the evidence was closed and it was posted for hearing but adjourned on several occasions due to various reasons. It is thereafter that, the 1[st] defendant filed petition to reopen the evidence and permit her to adduce evidence regarding the letter sent by her in reply to the lawyer notice sent on behalf of the plaintiff. The court below had allowed the application which is under challenge. ## 7. Order 18 Rule 3A reads as follows:- [“3A Party to appear before other witnessesWhere a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded, permits him to appear as his own witness at a later stage]” 8. It is stated therein that where party himself wishes to appear as a witness, he shall so appear before any other witnesses, on his behalf has been examined unless the court for reasons to be recorded permit him to appear as his own witness at a later stage. The counsel for the petitioner submitted that O.P. (C). No.815 of 2015 5 further only under Order 18 Rule 17 court has power to recall permit a party witness to be examined and without the leave of the court party cannot be examined on a later occasion. 9. It is true that in the decision reported in **Bagai Construction v M/sGupta Building Material Stores** [2013 (I) KHCC SN 37], the practice of filing an application after evidence is over to recall a witness already examined invoking the inherent power under Section 151 Code of Civil Procedure was deprecated as such thing will only help the parties to fill up their lacuna at their will and pleasure. That was a case where the plaintiff had filed a suit, but he had not produced the accounts. But after the evidence was over and it was posted for judgment, the plaintiff filed an application to reopen the case and filed an application to receive the documents and also to recall himself to give evidence regarding this aspect. It was under such circumstances the Hon'ble Supreme Court has held that in a suit for accounts there is a mandatory duty cast on the plaintiff to produce the accounts before the court and that was not done in this case. So on a later occasion, in order to fill up the lacuna of non fulfilling the statutory obligations, he cannot be allowed to reopen the evidence and recall himself to supply the lacuna in the case. That was not the O.P. (C). No.815 of 2015 6 case here. 10. Further in the decision reported in **Sadasivan v Dinakaran** [1988 (I) KLT 20], this court has held that at the discretion of the court party can be allowed to appear as a witness at a later stage, after examination of other witnesses. Such a permission can be granted even after witnesses were examined. But it was opined that it is better to seek the permission after examination of other witnesses on sufficient ground. It may be mentioned here that in this case only the chief affidavit of 3[rd] defendant was produced, in which he had stated that 1[st] defendant had sent a reply letter to the notice issued by the plaintiff. It is true that the document has not been produced. But the counsel for the respondent submitted that when this witness was cross examined, he had stated that he had no personal knowledge about his mother sending any letter. But he had got only hear se knowledge about it as stated by mother. It is under such circumstances, especially when the document has not been produced, in order to prove the fact that she had sent a letter, necessitated the 1[st] defendant to file a petition to reopen the evidence and give evidence on this aspect as she alone has got personal knowledge about the same and she alone can depose about that fact as well. O.P. (C). No.815 of 2015 7 Further, DW2 was not examined to prove this fact. He was examined to prove as to how the entire transaction has taken place between the plaintiff and defendant as claimed by them in their written statement. So what is the circumstances under which the 1[st] defendant had sent a reply in her personal capacity and what was stated by her etc. can be deposed only by her. Non production of the documents said to have been produced can be taken note by the court while appreciating the evidence of that witness on that aspect. So under such circumstances the discretion exercised by the court below allowing the petition to reopen the evidence and permitting the 3[rd] defendant to examine herself as a witness cannot under the circumstances said to be illegal warranting interference of this Court under Article 227 of the Constitution of India. Further court has got ample power to allow the parties to adduce evidence which the court may feel necessary for proper adjudication of the case as well and such an opportunity should not be shut down on technical grounds. So under such circumstances, the petition lacks merits and the same is hereby dismissed. In the result the petition is dismissed. The interim order of stay granted by this Court is hereby vacated. I.A.402 of 2016 O.P. (C). No.815 of 2015 8 Dismissed. Registry is directed to communicate the judgment to the court below at the earliest. Considering the fact that the case was of the year 2010 and evidence has already been started court below is directed to expedite disposal of the suit as expeditiously as possible at any rate within two months from the date of receipt of a copy of this judgment. Sd/K.RAMAKRISHNAN, JUDGE SKV