This writ petition challenged a sub-judge's order allowing reopening of evidence to examine attesting witnesses in a specific performance suit. The High Court modified the cost award while permitting the reopening to ensure proper adjudication.
Enhanced cost of Rs. 2,000/-; directive to lower court to permit plaintiff to examine witness on payment of cost.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
TUESDAY, THE 19TH DAY OF JULY 2016/28TH ASHADHA, 1938
OP(C).No. 2281 of 2015 (O)
PETITIONER:
SUNITHI, AGED 51 YEARS W/O.MURALIDHARAN, RESIDING AT SREE NIVAS, KRISHNAPURAM, NENMARA, CHITTUR.
BY ADV. SRI.RAJESH SIVARAMANKUTTY
RESPONDENT:
GIREESHKUMAR, AGED 41 YEARS S/O.MANICKAN, RESIDING AT MATTUPARA HOUSE, NENMARA, CHITTUR-678001.
BY ADV. SRI.NIREESH MATHEW
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 2281 of 2015 (O)
APPENDIX
PETITIONER(S)' EXHIBITS
RESPONDENT(S)' EXHIBITS :-
/TRUE COPY/
P.A. TO JUDGE
DCS
K. RAMAKRISHNAN, J.
---------------------------------------
O.P.(C). No. 2281 OF 2015
Dated this the 19th day of July, 2016
JUDGMENT
This is a petition filed by the petitioner challenging Ext. P7 order passed by the Principal Sub Court, Palakkad under Article 227 of the Constitution of India. It is alleged in the petition that the respondent herein filed Ext. P1 suit as O.S. No. 782/2012 before the Principal Sub Court, Palakkad seeking specific performance of the contract and in the alternative for return of advance amount. The case of the defendant was that she had not executed any such agreement and she is not bound to execute the document as sought for nor had she been liable to return the alleged advance amount as well. She denied execution of Ext. A1 agreement marked in the lower court. The case of the defendant was that she had borrowed only Rs. 60,000/and as a security for the transaction, blank signed papers had been obtained from her and subsequently they are
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converted into sale agreement and she had also contended that she had paid the amount, but the blank signed papers were not returned. She prayed for dismissal of the case. The plaintiff was examined as PW1 and documents were marked. Thereafter, plaintiff's evidence was closed. When it was posted for the evidence of the defendant, the respondent herein who is the plaintiff in the lower court filed Ext. P3 to re-open the evidence and also filed Ext. P4 to receive witness list and re-open the case for the purpose of examining that witness. The petitioner filed Exts. P5 and P6 objections to the same. After hearing both sides, Ext. P7 impugned common order was passed by the court below allowing the applications on payment of cost of Rs. 1,000/-. Dissatisfied with the same, the present petition has been filed.
O.P.(C). No. 2281 OF 2015
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the plaintiff's evidence was over and no witness list filed at the time when the case was posted after settlement of issues for pre-trial steps. It is after the examination of PW1 that the present applications have been filed submitting the witness list so as to fill up the lacuna in the evidence adduced by the plaintiff regarding the execution of the document. The court below has not considered these aspects. Further, no reason was stated for not examining the witness earlier as well. The court below has not properly appreciated the objections raised. The counsel relied on Supreme Court decision reported in Civil Appeal No. 1787/2013, M/s. Bagai Construction Tr. Prop. v. M/s. Gupta Building Material Store dated 22.02.2013 in support of his contention.
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witness will have to be examined.
listed, no witness list was filed. It was after examination of PW1 and evidence was closed that the present applications were filed to re-open the evidence and to receive the witness list submitted. It is true that in the decision relied on by the counsel for the petitioner, it has been stated in Para 10 of that judgment regarding the procedure to be adopted by the court while re-opening the evidence once closed which reads as follows:-
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power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trails. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that nonproduction earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly, the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly, if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.”
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agreement for sale and since she had not complied with the terms, that compelled him to file suit for specific performance of that contract and also in the alternative for return of the advance amount. The case of the defendant who is the petitioner herein was that she had not executed such document. It is true that when the execution of the document is denied the burden is on the plaintiff to prove the execution of the document. That can be done either by examining the plaintiff himself or after examination, he can examine the attestors to the document as well to prove this fact. He now wants to prove the same by examining one of the attesting witnesses. The grievance of the petitioner was that there is a possibility of tutoring the witness and adducing further evidence was to cure the defects or lacuna that has been brought out in the cross examination of PW1. But that alone cannot be a ground for denying the
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opportunity to the plaintiff to prove the execution of the document. The petitioner's case was that number of blank signed papers had been obtained from her. She had even denied the signature in the document. It is necessary in such circumstances, to know the real nature of things, examination of the attesting witnesses may be required and it is required for proper adjudication of the case as well. So under such circumstances, the court below was perfectly justified in allowing the applications for the purpose of giving an opportunity to the respondent herein to examine the witness submitted along with the witness list. No prejudice will be caused to the petitioner as she will be getting an opportunity to cross examine that witness as well.
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recalling him to supplement any evidence that has been brought out in the evidence of witness to be examined. Further, considering the fact that there is some lacuna on the part of the respondent, the cost of Rs. 1,000/- allowed by the court below appears to be meagre as some inconvenience has been caused to the petitioner herein and it is at the time when the case was posted for defence evidence that the present applications have been filed and he is prosecuting the case from 2012 onwards.
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proof of payment of cost is produced, the lower court is directed to permit the plaintiff to examine the witness to be examined on his behalf and dispose of the case after giving opportunity to the defendant to adduce her evidence as expeditiously as possible. With the above modification and observation alone the petition is disposed of.
Registry is directed to communicate this judgment immediately by fax.
K. RAMAKRISHNAN, JUDGE
DCS
2 issues framed by the court
Whether the trial court was justified in allowing the reopening of evidence for examination of attesting witnesses after the plaintiff's evidence was closed?
Whether the penalty cost awarded by the lower court for reopening evidence was adequate?
Colour shows how this judgement treated each authority
M/s. Bagai Construction Tr. Prop. v. M/s. Gupta Building Material StoreReferred¶40
Civil Appeal No. 1787/2013, M/s. Bagai Construction Tr. Prop. v. M/s. Gupta Building Material Store dated 22.02.2013
2 provisions across 2 enactments
Sunithi
Gireeshkumar
K. Ramakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
K. Ramakrishnan
Parties & counsel
