Partly allowed

Nissar Nooruddeen v. Abdul Shukkoor

Kerala HC9 Mar 2021OP(C)/245/2021

Case brief

AI extract

What is this about?

The High Court restored the petitioner-defendant's right to cross-examine witnesses recalled by the Subordinate Judge, setting aside impugned orders. Costs of Rs. 5,000 are imposed on the petitioner upon payment within two weeks. The matter was remanded to the trial court for disposal within three months.

What did the court decide?

Impugned orders set aside pending payment of Rs. 5,000 costs; petitioner entitled to cross-examine witnesses; trial court to dispose of matter within three months.

Nissar Nooruddeen Vs Abdul Shukkoor — Civil Procedure and Limitation | Kerala HC (2021)

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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 T.V.ANILKUMAR

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TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942

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OP(C).No.245 OF 2021

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AGAINST THE ORDERS DATED 4.2.2017 AND 4.3.2017 IN O.S.NO.151/2014 AND ORDERS DATED 12.01.2021 IN R.P.NO.2756 AND 2757 OF 2017 IN O.S.NO.151/2014 OF I ADDITIONAL SUB COURT,TRIVANDRUM

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PETITIONER/REVIEW PETITIONER/ DEFENDANT:

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NISSAR NOORUDDEEN, AGED 49 YEARS, S/O.MUHAMMED KUNJU NOORUDDEENKUTTY, RESIDING AT DARUNOOR,KOTTAKUZHI JUNCTION, ALUMKADAVU.P.O, KARUNAGAPPILLY TALUK, KOLLAM DISTRICT,PIN-690573.

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BY ADVS.SMT.S.KARTHIKA

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SMT.PREETHY KARUNAKARAN SMT.ANJANA M VADHYAR

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RESPONDENT/RESPONDENT/PLAINTIFF:

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ABDUL SHUKKOOR, S/O.AYAMED KUTTY,RESIDING AT PARAKAPURYIL HOUSE,KODUVALLY DESOM, THAMARASSERY TALUK,CALICUT DISTRICT, PIN-673573.

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BY ADVS. SRI.S.VINOD BHAT KUM.ANAGHA LAKSHMY RAMAN

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 09.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(C)No.245/2021

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Dated this the 9^th day of March,2021

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J U D G M E N T

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The petitioner is the original defendant in O.S.No.151/2014 pending before 1^st Additional Sub Court, Thiruvananthapuram.

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After the suit having been listed for trial, the plaintiff was examined. On the date of plaintiff's examination, the learned counsel could not appear and cross-examine the plaintiff presumably because he was laid up. The court below did not adjourn the case for cross-examination on the premise that the plaintiff who came from abroad had to return the next day. Similarly, when PWs.2 and 3 appeared and were examined on the side of the plaintiff also, the learned counsel for the defendant was not in a position to cross-examine. The court below closed their evidence also on the ground that one of the witnesses came from abroad for giving evidence. Anyway, the defendant applied for recalling all the witnesses and filed application. That too was dismissed. Seeking review of the order dismissing the applications, the petitioner/defendant filed review petition

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O.P.(C)No.245/2021

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with separate petition seeking to condone the delay.

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The court below dismissed I.A.Nos.2756 & 2757/2017 and 653 & 654/18 by Exts.P9 and P10 orders dated 12.01.2021. The orders are challenged in this original petition by the aggrieved defendant.

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I heard the learned counsel for the petitioner as well as the respondent.

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The fact remains that the court below was rather persuaded to close the evidence of plaintiff as well as witnesses for the evident reason that the plaintiff and one of the witnesses came from abroad to give evidence and they had to return on the scheduled day without being able to wait for more days for further examination.

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On the other hand, the contention raised by the petitioner is that breathing time was not given to the learned counsel for the petitioner to cross-examine PWs.1 to 3, even though he was having a genuine reason for being absent on the days concerned. Whatever may be the cause which prevented the defendant from cross-examining the witnesses, I am of the opinion that the court

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O.P.(C)No.245/2021

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below should have permitted the petitioner to recall all the witnesses and allowed him to contest the proceeding on merits. Witnesses could have been recalled subject to petitioner's liability to pay reasonable amount of cost. I am satisfied that there is no justification in having dismissed the review petitions and delay petitions.

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After hearing the submissions made on behalf of the parties by the respective counsel, I am of the opinion that the impugned Exts.P9 and P10 orders are liable to be set aside and I.A.Nos.2756 & 2757/2017 and 653 & 654/18 are allowed.

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The learned counsel for the respondent submitted that respondent may be mulcted with amount of expenses necessary for travel from his place of employment to court, in the form of costs.

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The learned counsel for the petitioner, on the other hand, submitted that the respondent/plaintiff is due to appear before Judicial First Class Magistrate, Kunnamkulam in C.C.No.932/2015 in the month of March and it may

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O.P.(C)No.245/2021

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be convenient for him to give evidence before the Munsiff Court as well in the same month.

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Having considered the submissions made by the learned counsel on either side, I am of the opinion that the impugned orders passed by the court below ought to be set aside, subject to the petitioner paying the respondent cost of Rs.5,000/-(Rupees five thousand only) within a period of two weeks from today, failing which the impugned orders will stand stand confirmed and this original petition dismissed. On the other hand, if the cost is paid within the stipulated period, the impugned orders will stand set aside and the petitioner would be entitled to cross-examine PWs.1 to 3. The court below will recall the witnesses and give the petitioner opportunity to cross-examine. It is made clear that the witnesses in attendance shall be examined without being detained unnecessarily.

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In the result, original petition is disposed of with the above directions. This being a suit of 2014, there shall be a direction to the court below to dispose of the matter within a period of three months from the date of production of

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O.P.(C)No.245/2021

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certified copy of this judgment. All pending interlocutory applications will

stand closed.

Sd/-

T.V.ANILKUMAR,JUDGE

DST

//True copy/

P.A.To Judge

O.P.(C)No.245/2021

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APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.NO.151 OF 2014 BEFORE THE HON'BLE SUBORDINATE JUDGE'S COURT,THIRUVANANTHAPURAM.

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EXHIBIT P2 TRUE COP OF THE ORDER DATED 4.2.2017 CLOSING EVIDENCE OF PW1 AS STATED IN THE PROCEEDINGS IN O.S.NO.151 OF 2014 BEFORE THE HON'BLE SUBORDINATE JUDGE'S COURT,THIRUVANANTHAPURAM. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 4.3.2017 REFUSING PRAYER TO CROSS EXAMINE PW2 AND PW3 AS STATED IN THE PROCEEDINGS IN O.S.NO.151 OF 2014 BEFORE THE HON'BLE SUBORDINATE JUDGE'S COURT,THIRUVANANTHAPURAM. EXHIBIT P4 TRUE COPY OF THE REVIEW PETITION NO.2757 OF 2017 IN O.S.NO.151 OF 2014 DATED 19.09.2017 FILED BEFORE THE HON'BLE SUBORDINATE JUDGE'S COURT,THIRUVANANTHAPURAM BY THE PETITIONER

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EXHIBIT P5 TRUE COPY OF THE REVIEW PETITION NO.2756 OF 2017 IN O.S.NO.151 OF 2014 DATED 19.09.2017 BEFORE THE HON'BLE SUBORDINATE JUDGE'S COURT,THIRUVANANTHAPURAM BY THE PETITIONER.

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EXHIBIT P6 TRUE COPY OF THE OBJECTION DATED 18.12.2017 FILED BY THE RESPONDENT TO REVIEW PETITION NO.2757/2017. EXHIBIT P7 TRUE COPY OF THE I.A.NO.4149/2017 IN O.S.NO.151/2014 BEFORE THE HON'BLE SUBORDINATE JUDGE'S COURT,THIRUVANANTHAPURAM FILED BY THE RESPONDENT.

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EXHIBIT P8 TRUE COPY OF THE OBJECTION DATED 28.02.2018 IN I.A.NO.4149/2017 IN O.S.NO.151/2014 BEFORE THE HON'BLE SUBORDINATE JUDGE'S COURT,THIRUVANANTHAPURAM FILED BY THE

O.P.(C)No.245/2021

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PETITIONER.

EXHIBIT P9 TRUE COPY OF THE COMMON ORDER DATED 12.01.2021 IN I.A.NO.2757/2017 AND 653/2018 IN O.S.NO.151/2014 BEFORE THE HON'BLE SUBORDINATE JUDGE'S COURT,THIRUVANANTHAPURAM. EXHIBIT P10 TRUE COPY OF THE COMMON ORDER DATED 12.01.2021 IN I.A.NO.2756/2017 AND 654/2018 IN O.S.NO.151/2014 BEFORE THE HON'BLE SUBORDINATE JUDGE'S COURT,THIRUVANANTHAPURAM. EXHIBIT P11 TRUE COPY OF I.A.NO.2/2021 DATED 24.1.2021 IIN O.S.NO.151 OF 2014 BEFORE THE HON'BLE SUBORDINATE JUDGE'S COURT,THIRUVANANTHAPURAM. EXHIBIT P12 TRUE COPY OF THE ORDER DATED 14.12.2020 PASSED BY THE HON'BLE HIGH COURT OF KERALA IN CRL.M.C.NO.8959/2016. EXHIBIT P13 TRUE COPY OF THE DAILY STATUS REPORT OF C.C.NO.932/2015 BEFORE JUDICIAL FIRST CLASS MAGISTRATE, KUNNAMKULAM DATED 29.01.2021.

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RESPONDENTS' EXHIBITS: NIL

Nissar Nooruddeen v. Abdul Shukkoor

Case brief

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Nissar Nooruddeen v. Abdul Shukkoor

Case brief

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