Partly allowed

Midas Pre-Cured Treads (P) Ltd., v. the Kerala State Road Transport Corpn.

Kerala HC4 Jun 2008CRP/384/2008

Case brief

AI extract

What is this about?

The High Court held that reopening evidence after arguments is illegal unless under Order XVIII Rule 17 CPC, but reopening for argument clarification is valid. It dismissed the revision challenging the order allowing leave to apply for amendment of pleadings.

What did the court decide?

C.R.P. No. 384/2008 allowed in part (quashing order reopening evidence); C.R.P. No. 385/2008 dismissed (order granting leave to apply for amendment not illegal).

Midas Pre-Cured Treads (P) Ltd., Vs the Kerala… — Civil Procedure and Limitation | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 4TH JUNE 2008 / 14TH JYAISHTA 1930

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CRP.No. 384 of 2008()

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--------------------OS.718/1996 of PRL.SUB COURT,TRIVANDRUM

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REVN. PETITIONER: PLAINTIFF:

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MIDAS PRE-CURED TREADS (P) LTD., BUILDING NO.184/11, INDUSTRIAL ESTATE, ETTUMANOOR, KOTTAYAM DISTRICT, REPRESENTED BY ITS DIRECTOR, JOHN K.ABRAHAM.

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BY ADV. SRI.RAJIV ABRAHAM GEORGE SRI.EAPEN ABRAHAM GEORGE

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RESPONDENTS: DEFENDANT:

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THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, EAST FORT, TRIVANDRUM-695 023, REPRESENTED BY ITS MANAGING DIRECTOR.

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BY ADV. SRI.K.PRABHAKARAN, SC, K.S.R.T.C. FOR R1

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/06/2008, ALONG WITH CRP NO. 385 OF 2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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M.SASIDHARAN NAMBIAR, J.

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C.R.P.Nos.384 & 385 of 2008

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Dated this the 4^th June, 2008.

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O R D E R

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Petitioner is the plaintiff and respondent is the defendant in the suit. After closing the evidence and hearing the arguments, the suit was posted for judgment to 18.2.2008. Thereafter, learned Sub Judge passed the impugned order challenged in CRP.No.384/2008, dated 18.2.2008, which reads as follows:-

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“Plaintiff represented by Sri.Sonay John. The written statement filed by Defendant is at variance with the argument note filed by Defendant. Invoices (Photocopy) are note admitted by defendant in the hearing note. Hence a clarification is required from the side of defendant. For further hearing. Evidence re-opened. Judgment not pronounced. Call on 25-2-2008.”

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C.R.P.No.384/2008 is filed challenging that order contending that learned Sub Judge should not have re-opened the evidence, after arguments were heard and suit was posted for judgment. After the evidence was re-opened, suit was posted to 25.2.2008. It was again adjourned and taken up on 3.3.2008. On that day, learned Sub Judge

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CRP.Nos.384 & 385/2008

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passed an order stating that counsel appearing for the defendant submitted that in the light of the evidence adduced and pleadings, defendant has to file an application for receiving additional written statement. Holding that it is to be decided whether an additional written statement is to be received or not, suit was adjourned to 15.3.2008 observing that it is not fair and proper to deny the defendant a chance of amending the pleadings, in view of the law laid down by the Apex Court. On the request of the defendant, suit was posted after 7 days. That order is challenged in C.R.P.No.385/2008.

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On hearing the learned counsel appearing for the petitioner, notice was issued to the respondent and a report was called for from the Presiding Officer of the trial court. The report was submitted by the successor of Presiding Officer, as the Presiding Officer who passed the impugned orders was subsequently transferred in the General Transfer. The report submitted by the Presiding Officer shows that on 14.3.2008, respondent filed I.A.No.1608/2008, an application for amendment of the written statement, and, therefore, the case stands posted to 28.5.2008. Counsel further submitted that the case is thereafter posted to this day.

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CRP.Nos.384 & 385/2008

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The learned counsel appearing for the petitioner, as

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well as the learned counsel appearing for the respondent were heard.

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The argument of the learned counsel appearing for the petitioner is that after closing of the evidence and hearing arguments, the suit was posted for judgment, and at that stage, Court is not competent to suo motu re-open the evidence as has been done under the impugned order, dated 18.2.2008. He further argued that in any case, learned Sub Judge should not have granted an opportunity to the defendant to file a petition to receive additional written statement, or found that respondent is entitled to amend the written statement and in such circumstances, both the orders are to be quashed.

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The learned counsel appearing for the respondent however submitted that subsequent to the impugned orders, respondent filed an application to amend the written statement and it is pending, and there is no reason to interfere with the impugned orders. The learned counsel for the petitioner pointed out that under proviso to Rule 17 of Order VI of Code of Civil Procedure, no application for amendment shall be allowed, unless the court comes to

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CRP.Nos.384 & 385/2008

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the conclusion that in spite of due diligence, parties could not have raised the matter before the commencement of the trial, and as against this mandate, the court should not have granted an opportunity to the petitioner to amend the written statement.

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Order XVIII of Code of Civil Procedure deals with hearing of the suit and examination of witnesses. Rule 2 provides for statement and production of evidence. Rule 4 and 5 deals with the recording of evidence. Rule 17 of Order XVIII enables the Court at any stage of the suit to recall any witness who has been examined and to put such questions to him, as the Court thinks fit. It is after recording the evidence as provided under Order XVIII, Court has to hear the argument and pronounce the judgment as provided under Rule 1 of Order XX of Code of Civil Procedure. When the evidence is closed and arguments are heard, and suit is posted for judgment, it Court is competent to re-open the suit posted to hear the counsel appearing for the parties or seek any clarification. Therefore, if the learned Sub Judge found it necessary to have any clarification, he is competent to post the case, after re-opening, for hearing the arguments. Therefore, to that extent, there is no illegality or irregularity in the order dated 18.2.2008. But the court should not

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CRP.Nos.384 & 385/2008

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have re-opened the suit for evidence, unless it is for the purpose of exercising the power under Rule 17, and to that extent, order dated 18.2.2008 is illegal. Therefore, C.R.P.No.384/2008 is allowed in part, quashing the order re-opening the evidence. But the order re-opening the suit for hearing arguments seeking further clarification is perfectly in order.

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As per the impugned order in C.R.P.No.385/2008,

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learned Sub Judge has only granted the prayer of the respondent to file an application to receive additional written statement. The learned Sub Judge did not decide whether the application to be filed to receive

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the additional written statement is to be allowed or not. In such circumstances, I do not find any illegality in the impugned order dated 3.3.2008. Therefore, that revision is dismissed.

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The report of the learned Sub Judge shows that because of the order, dated 3.3.2008, respondent has filed an application to amend the written statement under Rule 17 of Order VI of Code of Civil Procedure. The fact that petition is filed, does not mean that application is to be allowed. It is for the Sub Judge to dispose the application, in accordance with law, taking into

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CRP.Nos.384 & 385/2008

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consideration proviso to Rule 17 of Order VI of Code of Civil Procedure. The Sub Judge shall not be carried away by any observation in the impugned orders challenged in C.R.P.Nos.384 & 385 of 2008.

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M.SASIDHARAN NAMBIAR,

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JUDGE

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nj.

Midas Pre-Cured Treads (P) Ltd., v. the Kerala State Road Transport Corpn.

Case brief

What is this about?

What did the court decide?

Midas Pre-Cured Treads (P) Ltd., v. the Kerala State Road Transport Corpn.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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