Kerala High Court
Pramod Kumar vs K.C.Prathap Kumar
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
TUESDAY, THE 19TH DAY OF FEBRUARY 2013/30TH MAGHA 1934
OP(C).NO. 356 OF 2013 (O)
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I.A. NO.1946 OF 2012 IN O.S. NO.232 OF 2008,
SUB COURT, ATTINGAL
PETITIONER(S):
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PRAMOD KUMAR, AGED 45 YEARS
S/O.PURUSHOTHAMAN, VRINDAVANAM, ADAYAMON.P.O
THATTATHUMALA, KILIMANOOR, CHIRAYINKEEZHU TALUK
THIRUVANANTHAPURAM DISTRICT.
BY ADVS.SRI.M.R.RAJESH
SRI.AUM MANGALASSERRY
RESPONDENT(S):
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1. K.C.PRATHAP KUMAR,
S/O.CHELLAPPAN PILLAI
AYYAPPAS(SYAMALALAYAM)NEARSUVARNA AUDITORIUM
PATTAZHI ROAD, KUNNIKKODE, KOTTARAKKARA-691103.
2. DR.KAVITHA SEKHAR,
D/O.SYAMALAKUMARI, AYYAPPAS, NEAR SUVARNA AUDITORIUM
PATTAZHI ROAD, KUNNIKKODE, KOTTAKKARA-691103.
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19-02-2013, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P(C) NO.356 OF 2013
APPENDIX
PETITIONER(S)' EXHIBITS:
EXT-P1 A TRUE COPY OF THE PLAINT IN O.S.232/08 ON THE FILE OF SUB
COURT,ATTINGAL
EXT-P2 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE
RESPONDENT
TO EXT.P1
EXT-P3 A TRUE COPY OF THE JUDGMENT DATED 07.12.2012 IN OP(C)4171/2012
OF THIS HON'BLE COURT
EXT-P4 A TRUE COPY OF THE PETITION I.A.1946/2012 IN O.S.232/08 ON THE
FILE OF SUB COURT
EXT-P5 A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS TO
EXT.P4
EXT-P6 A TRUE COPY OF THE ORDER DATED 22.10.2012 DISMISSING
I.A.1946/2012 IN O.S.232/2008 ON THE FILE OF THE SUB COURT,ATINGAL
(EXT.P4).
RESPONDENT(S)' EXHIBITS: NIL
TRUE COPY
P.S. TO JUDGE
THOMAS P.JOSEPH, J.
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O.P(C) No.356 of 2013
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Dated this the 19th day of February, 2013
J U D G M E N T
Exhibit P6, order dated 22.10.2012 on I.A. No.1946 of 2012 in O.S. No.232 of 2008 of the Sub Court, Attingal is under challenge.
2. Petitioner sued respondents for recovery of money, according to him based on the original cause of action and subsequent dishonour of a cheque. Respondents filed Ext.P2, written statement denying the transaction but admitted that signed blank cheques were given in connection with some other transactions. Evidence of petitioner was recorded. At that stage, petitioner filed I.A. No.1835 of 2012 for amendment of plaint to incorporate date of issue of cheques which was not mentioned in the plaint. That application was dismissed against which petitioner filed O.P(C) No.4171 of 2012. This Court by Ext.P3, judgment dated 07.12.2012 allowed that Original Petition and pursuant to that, amendment was carried out. Petitioner filed I.A. No.1946 of 2012 to re-open the evidence for his further examination. That application was dismissed as per Ext.P6, order for the reason that O.P(C) No. 356 of 2013 -: 2 :- attempt of petitioner was to fill up lacuna in the evidence.
3. Learned counsel for petitioner contends that though learned Sub Judge placed reliance on the decision in Velusamy v. Palanisamy (2011 [2] KLT SN 19 (Case No.27), the very same decision states about inherent power of court under Section 151 of the Code of Civil Procedure (for short, "the Code") to re-open evidence for further examination in chief which is not affected by the power conferred on the court under Rule 17 of Order XVIII of the Code. It is also submitted that recall and further examination of petitioner-P.W.1 is necessary in view of amendment carried out to the plaint.
4. Whatever statement petitioner has made as P.W.1 is available in his deposition. Therefore even if it is assumed that petitioner gives a different version of the transaction, it is open to the respondent to cross-examine him with reference to the statement he has already made. According to the learned counsel, purpose of recalling petitioner is only to give an explanation to the statement he has already made. Since the respondent gets opportunity to further cross-examine petitioner based on the statement or clarification he may make when summoned and further examined, there is no reason why O.P(C) No. 356 of 2013 -: 3 :- request should be disallowed. In that view of the matter I am inclined to interfere with the impugned order.
Resultantly, the Original Petition is allowed as under:
(i) Exhibit P6, order dated 22.10.2012 on I.A. No.1946 of 2012 in O.S. No.232 of 2008 of the Sub Court, Attingal is set aside.
I.A. No.1946 of 2012 is allowed.
(ii) P.W.1 shall be recalled for further examination.
(iii) It is made clear that if respondent has any further evidence to be let in, learned Sub Judge shall give opportunity to the respondents as well to adduce such further evidence.
THOMAS P. JOSEPH, JUDGE.
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