Kerala High Court
Kurian George vs Annamma George on 27 September, 2018
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
THURSDAY ,THE 27TH DAY OF SEPTEMBER 2018 / 5TH ASWINA, 1940
OP(C).No. 1228 of 2018
AGAINST THE ORDER IN OS 90/2011 of MUNSIFF COURT, PUNALUR
PETITIONER/S/PETITIONER/1ST DEFENDANT:
KURIAN GEORGE
S/O.DR.T.K.GEORGE, AGED 74 YEARS,THEKKINKADU NEW HOUSE,
MAVILA,AREEPLACHI P.O.,ANCHAL VILLAGE, KOLLAM DISTRICT.
BY ADV. SRI. KURIAN GEORGE (PARTY IN PERSON)
RESPONDENT/S/RESPONDENTS/PLAINTIFF & DEFENDANTS 2 & 3:
1 ANNAMMA GEORGE
D/O.DR.T.K.GEORGE, WINSOR MANSION,
5C,KOWDIAR,THIRUVANANTHAPURAM DISTRICT - 695 004
2 JOSEPH GEORGE
S/O.THANKAMMA GEORGE, PALM SHADE VILLA, VADAVATHOOR,
KOTTAYAM-10.PIN - 686 610
3 ANGELINA GEORGE
D/O.T.K.GEORGE,THEKKINKADU BUNGALOW,MAVILA, AREEPLACHI
P.O,ANCHAL VILLAGE.(DELETED)
(R3 DELETED FROM THE PARTY ARRAY AS PER ORDER DATED
22.05.2018 IN I.A.NO.839 OF 2018)
BY ADV. SRI.P.BHARATHAN
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 27.09.2018, ALONG WITH
OP(C).2230/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
OP (C) 2230 OF 2018 & OP(C).No. 1228 of 2018 2
JUDGMENT
This original petition is filed under Article 227 of the Constitution of India challenging the order in I.A.NO.1734 of 2018 in O.S.No.90 of 2011, on the files of Munsiff's Court, Punalur. The petitioner herein filed the above application under Order XVIII Rule 19 and Order XXVI, Rules 4 and 4A of CPC for appointing an Advocate Commissioner for recording evidence of the witnesses. The said application was dismissed by the court and the court preferred to examine the witnesses by himself. The challenge is against the said order.
2. Ordinarily, a petitioner will be aggrieved by the orders of the court, appointing a Commissioner, but here it is a case where petitioner is aggrieved by not appointing a Commissioner. The court, by a speaking order, dismissed the application. It is a fact that a detailed discussion is not warranted, when the Presiding Officer himself is intending or taken the burden to record the evidence.
3. Another aspect highlighted is that the court is prejudiced and thus he wants his witnesses get examined through OP (C) 2230 OF 2018 & OP(C).No. 1228 of 2018 3 a Commissioner. There also, it can be seen that the Commissioner is appointed by the Court, and actually thereby delegating the duty of recording the evidence to a Commissioner. It is also seen that the court found that this is not a case where a Commissioner has to be appointed to record the case. The petitioner herein is appeared in person. When there is a finding of the court to the effect that court itself is going to record the evidence, which is a normal thing, no interference by this Court is warranted under Section 227 of the Constitution of India.
Thus, the Original Petitions (Civil) is dismissed.
Sd/-
K.P.JYOTHINDRANATH JUDGE RK/29.09.2018 //TRUE COPY// PA TO JUDGE OP (C) 2230 OF 2018 & OP(C).No. 1228 of 2018 4 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE NEWS PAPER CUTTING OF MALAYALA MANORAMA DAILY DATED 10.4.2018.
EXHIBIT P2 TRUE COPY OF THE NEWS ITEM APPEARED IN HINDU DAILY DATED 20.04.2018 DOWNLOADED FROM WEBSITE.
EXHIBIT P3 TRUE COPY OF THE INDIAN EXPRESS DAILY DATED 17.09.2017 DOWNLOADED FROM THE WEBSITE.
EXHIBIT P4 TRUE COPY OF THE E-MAIL DATED 03.05.2018 RECEIVED FROM DR.NIKOLAS XIROS, PROFESSOR OF THE UNIVERSITY OF NEW ORLEANS ALONG WITH THE LETTER DATED 02.05.2018.
EXHIBIT P5 TRUE COPY OF THE E-MAIL DATED 16.3.2018. EXHIBIT P6 TRUE TYPED COPY OF THE REFER REPORT FILED BY ANCHAL POLICE IN CRIME NO.1091 OF 2012. EXHIBIT P7 TRUE COPY OF THE REFER REPORT FILED BY ANCHAL POLICE IN CRIME NO.1238/2012 EXHIBIT P8 TRUE COPY OF THE ORDER DATED 26.10.2015 OF THE HUMAN RIGHTS COMMISSION IN HRMP NO.3260/2014. EXHIBIT P9 TRUE COPY OF THE ORDER DATED 18.01.2016 OF THE HUMAN RIGHTS COMMISSION IN HRMP NO.3260/2014. EXHIBIT P10 TRUE COPY OF THE PETITION NUMBERED AS I.A.NO.851 OF 2018 PENDING ON THE FILES OF MUNSIFF'S COURT, PUNALUR.
EXHIBIT P11 TRUE PHOTOCOPY OF OBJECTION DATED 04.08.2016 FILED BY 2ND DEFENDANT EXHIBIT P12 TRUE PHOTOCOPY OF OBJECTION DATED 30.07.2016 FILED BY 3RD DEFENDANT OP (C) 2230 OF 2018 & OP(C).No. 1228 of 2018 5 EXHIBIT P13 COPY OF THE ORDER DATED 19.02.2016 OF THE KERALA STATE HUMAN RIGHTS COMMISSION, THIRUVANANTHAPURAM EXHIBIT P14 TRUE PHOTOCOPY OF WRITTEN STATEMENT IN O.S.NO.326/2011 IN MUNSIFF'S COURT, PUNALUR FILED ON BEHALF OF CHANDRA BABU DATED 01.01.2013.
EXHIBIT P15 TRUE PHOTOCOPY OF OBJECTION DATED 08.07.2015 FILED IN O.S.NO.326 OF 2011 BEFORE THE MUNSIFF'S COURT, PUNALUR EXHIBIT P16 TRUE PHOTOCOPY OF WRITTEN STATEMENT DATED 03.08.2012 IN O.S.NO.331 OF 2011 FILED ON BEHALF OF SUHRUT NARAYANAN EXHIBIT P17 TRUE PHOTOCOPY OF OBJECTION DATED 13.06.2018 FILED IN O.S.NO.90 OF 2011 EXHIBIT P18 TRUE COPY OF THE I.A.NO.1734 OF 2018 FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, PUNALUR EXHIBIT P19 TRUE COPY OF THE OBJECTION DATED 03.09.2018 FILED BY THE RESPONDENT EXHIBIT P20 TRUE COPY OF THE ORDER DATED 03.09.2018 IN I.A.NO.1734 OF 2018 IN O.S.NO.90 OF 2011 PASSED BY THE MUNSIFF'S COURT, PUNALUR RESPONDENT'S/S EXHIBITS:
EXHIBIT R2(1) TRUE COPY OF THE AFFIDAVIT WITH PETITION IN O.S.NO.90/2011 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, PUNALUR //TRUE COPY// PA TO JUDGE RK