Dismissed

Sri.S.Abhilashkumar v. Sri.Benny Francis

Kerala HC13 Jan 2016OP(C)/101/2016

Case brief

AI extract

What is this about?

This petition challenged the dismissal of an application for examining witnesses by a commissioner. The court held that under Order 18 Rule 4(2) CPC, the trial court has discretion, not obligation, to appoint a commissioner. Given the complexity of the suit and the status of the witnesses as practicing lawyers, the High Court affirmed the lower court's decision to examine them in court.

What did the court decide?

The petition was dismissed with the direction that the application for commissioner's examination must be dismissed.

Sri.S.Abhilashkumar Vs Sri.Benny Francis — Contract and Commercial Disputes | Kerala HC (2016)

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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 K.ABRAHAM MATHEW

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WEDNESDAY, THE 13TH DAY OF JANUARY 2016/23RD POUSHA, 1937

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OP(C).No. 101 of 2016 (O)

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O.S.NO.1178/2014 OF MUNSIFF'S COURT, ERNAKULAM.

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PETITIONER:

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SRI.S.ABHILASHKUMAR, AGED 42 YEARS, S/O.LAKSHMANAN, RESIDING AT IDBI BANK OFFICERS QUARTERS, A-4, NO.IV, RAMESWARAM ROAD, T NAGAR, CHENNAI, TAMILNADU.

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BY ADVS.SRI.ANIL S.RAJ

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SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SMT.ANILA PETER

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RESPONDENT:

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SRI.BENNY FRANCIS, S/O.FRANCIS, AGED 49 YEARS, KARIPPATT HOUSE, CC 41/2892, KATTIKARAN ROAD, OFF CHITTOOR ROAD, KACHERIPPADY, ERNAKULAM VILLAGE, KOCHI - 682018.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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OP(C).No. 101 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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P1:TRUE COPY OF THE PLAINT IN OS. NO. 1178/2014 ON THE FILES OF THE HON'BLE MUNSIFF'S COURT DTD 30/8/2014.

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P2:TRUE COPY OF WRITTEN STATEMENT FILED BY THE DEFENDANT IN OS. NO. 1178/2014 DTD 19/6/2015.

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P3:TRUE COPY OF IA. NO. 11739/2015 IN OS.NO.1178/2014 FILED BEFORE THE HONOURABLE MUNSIFFS COURT, ERNAKULAM, DTD 19/12/2015.

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P4:TRUE COPY OF IA. NO. 11740/2015 IN OS.NO. 1178/2014 FILED BEFORE THE HONOURABLE MUNSIFFS COURT, ERNAKULAM, DTD 19/12/2015.

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P5:TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT TO EXT P3 DTD 4/1/2016.

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P6:TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT TO EXT P4 DTD 4/1/2016.

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P7:TRUE COPY OF ORDER IN IA NO 11740/2015 IN OS. NO. 1178/2014 OF THE HONOURABLE MUNSIFFS COURT DTD 5/1/2016.

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RESPONDENT(S)' EXHIBITS: NIL

//TRUE COPY//

P.S. TO JUDGE

mbr/

K.ABRAHAM MATHEW, J.

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O.P.(C). No.101 of 2016

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Dated this the 13^th day of January, 2016

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JUDGMENT

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Petitioner is the plaintiff in O.S.No.1178 of 2014 of Principal Munsiff Court, Ernakulam. He filed Ext P4 application for a direction to examine his witnesses by a commissioner. This was objected to by the respondent/defendant. The learned munsiff dismissed Ext P4 application by Ext.P7 order. This is challenged.

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Heard.

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Order 18 Rule 4 sub rule 2 provides that cross-examination

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and re-examination of a witness who has filed an affidavit in lieu of his examination in chief shall be conducted either by the court or by the commissioner appointed by it. The court is given discretion to decide whether the witness should be examined by it or by a commissioner. No party has a right to ask the court that his witness should be examined by a commissioner. In Salem Advocate Bar Association,

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Tamilnadu vs. Union of India (2005) 6 Supreme Court Cases 344)

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the Supreme Court has made the following observations:

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Further, the trial court in appropriate cases can permit the examination-in-chief to be recorded in court. The proviso to Order 18 Rule 4(2) clearly suggests that the

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O.P.(C). No.101 of 2016 2

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court has to apply its mind to the facts of the case, nature of allegations, nature of evidence and importance of the particular witness for determining whether the witness shall be examined in court or by the Commissioner appointed by it. The power under Order 18 Rule 4(2) is required to be exercised with great circumspection having regard to the facts and circumstances of the case. For instance, a case may involve complex questions of title, complex questions in partition or suits relating to partnership business or suits involving serious allegations of fraud, forgery, serious disputes as to the execution of Wills, etc. In such cases, as far as possible, the court may prefer to itself record the cross-examination of the material witnesses and the prayer for recording evidence by the Commissioner may be declined by the court.

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Though this is a suit for money the facts are very complicated. The witnesses proposed to be examined by the plaintiffs are practising lawyers. These facts indicate that the decision of the learned munsiff to examine them by the court is right. I do not find any reason to disagree with the learned munsiff. The O.P is liable to be dismissed.

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In the result, this O.P is dismissed.

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K.ABRAHAM MATHEW JUDGE

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Sri.S.Abhilashkumar v. Sri.Benny Francis

Case brief

What is this about?

What did the court decide?

Sri.S.Abhilashkumar v. Sri.Benny Francis

Case brief

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