The High Court dismissed an original petition filed by a petitioner against orders directing the trial to proceed. The court held that the petitioner's applications to delay the suit for expert opinion on a counter-foil irrelevant to the case constituted an abuse of process.
Original Petition dismissed; trial court directed to dispose of the suit forthwith.
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.ABRAHAM MATHEW
MONDAY, THE 8TH DAY OF FEBRUARY 2016/19TH MAGHA, 1937
OP(C).No. 258 of 2016 (O)
OS 114/2011 of SUB COURT, PATHANAMTHITTA CHALLENGING ORDER IN IA NO. 737/2015 AND IA NO. 803/2015
PETITIONER/PETITIONER/DEFENDANT :
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N.N. SASI, AGED 54 YEARS, S/O. ACHUTHAN NARAYANAN, VINAYANANDAMADOM, NELLIMALA VALLIYIL, CHIRAYIRAMBU P.O., MARAMON, PATHANAMTHITTA DISTRICT.
BY ADV. ADV.N.N.SASI(PARTY-IN-PERSON)
RESPONDENT/RESPONDENT/PLAINTIFF :
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KAMALASANAN.P.K, AGED 61 YEARS, S/O. KRISHNAN, PANACHACKAL HOUSE, KAREMVELI MURI, MALLAPPUZHASSERY VILLAGE, KOZHENCHERY, PATHANAMTHITTA DISTRICT - 689 641.
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 08-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
bp
OP(C).No. 258 of 2016 (O)
APPENDIX
PETITIONER(S)' EXHIBITS
RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
P.S.TO JUDGE
bp
K.ABRAHAM MATHEW, J.
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O.P(C) No.258 of 2016
==========================
Dated this the 8th day of February, 2016
JUDGMENT
The petitioner is a practising lawyer. He is the defendant in O.S No.114 of 2011 on the file of Sub Judge, Pathanamthitta. The respondent filed a suit against him for recovery of the amount covered by a cheque allegedly issued by him. He raised a contention that the cheque was obtained under vitiating circumstances and he is not liable to pay the amount. He was the respondent's advocate in some of his cases. In the written statement there is an allegation that on the counter foil of the cheque the respondent made an endorsement that he is liable to pay fees to the petitioner for conducting those cases. The respondent has filed a complaint against the petition alleging commission of the offence under Section 138 of the Negotiable Instruments Act in respect of the very same cheque. The petitioner has filed a criminal complaint against the respondent also. In the criminal case in which the respondent is the complainant the counter foil of the cheque referred to above has been sent for expert opinion. At the fag end of the trial of the
O.P.(C) No.258/2016
2
suit the petitioner filed Ext.P7 application to stop the proceedings in the suit till the report of the expert to whom the counter foil of the cheque has been sent for expert opinion, in the criminal case and he also filed Ext.P8 application to send the counter foil of the cheque for expert opinion. Both these applications have been dismissed by Exts.P9 and P10 orders.
basis of which the suit has been filed. The contention of the petitioner is that the cheque was obtained by force. There is no request to send the cheque for expert opinion. His another case is that the respondent/plaintiff has made an endorsement on the counter foil of the cheque that he owed some amount to him (the petitioner) towards his advocate fees. In the suit the petitioner has not claimed set off or made counter claim. So the counter foil is irrelevant to determine any of the issues in the suit. The request of the petitioner to send the counter foil for expert opinion was totally unnecessary. His request to stop the
O.P.(C) No.258/2016
3
trial of the suit till the opinion of the expert to whom the counter foil has been sent in the criminal case also could not have been entertained because the counter foil itself is irrelevant in the suit. The learned Sub Judge rightly dismissed his applications. In fact this was the finding of this Court in O.P No.2303 of 2015 filed by the petitioner. The present applications were an abuse of the process of the court. The suit now stands posted for judgment. The attempt of the petitioner is to prevent the trial court from disposing of the suit.
In the result, this Original Petition is dismissed. The learned Sub Judge is directed to dispose of the suit forthwith. Hand over.
Sd/-
K.ABRAHAM MATHEW, JUDGE
vdv/09/02/16
3 issues framed by the court
Whether the trial court should entertain an application to stop proceedings pending the report of expert opinion on a counter-foil of a cheque which is irrelevant to the civil suit.
Whether the petitioner's contention that the cheque was obtained under force affects the determination of the civil suit without a set-off or counter-claim.
Whether requests to delay the trial of a suit are an abuse of the process of court.
N.N. Sasi
Kamalasanan.P.K
K. Abraham Mathew
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
