IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
OP(C) NO. 633 OF 2022
IN THE MATTER OF IA 1/2022 IN O.S 299/2019 ON THE FILE OF
PRINCIPAL MUNSIFF COURT, KANNUR
PETITIONER/1ST PLAINTIFF:
SREE UMA MAHESARA KSHETHRA YOGAM ,
KEEZHUTHALLY, THOTTADA P.O., KANNUR
REPRESENTED BY ITS PRESIDENT
SATHISH KUMAR PAMBAN
AGED 68 YEARS,
S/O RAGHAVAN,
PAMBAN HOUSE,
PALLIKKUNNU AMSOM,CHALAD DESOM
P.O.CHALAD ,
KANNUR, PIN - 670014
BY ADV C.LEENA
RESPONDENTS/DEFENDANT AND 2ND PLAINTIFF:
1 T.SURESH BABU,
S/O ANANDAN,
AGED 63 YEARS,
THIRUMANGALATH HOUSE,
ELAYAVOOR AMSOM,
KEEZHUTHALLY DESOM,P.O.THOTTADA.
KANNUR, PIN - 670007
2 PALLIYATH SREEJITH,
S/O CHANDRASENAN,
AGED 50 YEARS,
DEEPASREE,CHALAKKUNNU,
EDAKKAD AMSOM CHALA DESOM,
P.O.THOTTADA.KANNUR, PIN - 670007
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03.06.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C)No.633 of 2022
2
JUDGMENT
Dated this the 03rd day of June, 2022 The original petition is filed, to set aside the order in I.A. No. 1 of 2022 in O.S.No.299 of 2019 of the Court of the Munsiff, Kannur.
2. The petitioner's case, in a nutshell, in the original petition is that; the petitioner is the 1 st plaintiff in suit which is filed for a prohibitory injunction against the 1st respondent. The 1st respondent has filed O.S.No.313 of 2019 for a similar relief. The suits are consolidated and being jointly tried. The 1 st respondent has produced Ext.P1 affidavit, signed by six persons, and the same was put to the petitioner during the cross-examination of its witness. The witness is not a signatory to Ext.P1. Therefore, the petitioner had filed I.A.No.1 of 2022 (Ext.P2) to summon the six executants of Ext.P1. The application was opposed by the 1st respondent by filing Ext.P3 counter statement. O.P.(C)No.633 of 2022 3 However, the Trial Court by Ext.P4 order, has dismissed Ext.P2 application. Ext.P4 is erroneous and wrong. Hence, the original petition.
3. Heard Smt.C.Leena, the learned counsel appearing for the petitioner and Sri.Rajesh Sukumaran, the learned counsel appearing for the respondents.
4. Undisputedly, Ext.P1 is not signed by PW1. However, the Trial Court has marked the affidavit as Ext.B1 in evidence. Ext.B1 is an affidavit signed by six persons who have not been examined. It is trite, marking of a document in evidence, will not prove its contents. The Trial Court ought to have marked the document only subject to proof and directed the executants to have proved its contents. In doing so, and accepting the document on record, has certainly caused prejudice to the petitioner, who has lost its indefeasible right to cross-examine the executants. Therefore, the finding of the court below that since the O.P.(C)No.633 of 2022 4 document has already been marked in evidence, the petitioner has no right to cross-examine the persons who have executed B1 is erroneous. Therefore, I am constraint to invoke the supervisory jurisdiction of this Court under Article 227 of the Constitution of India and set aside Ext.P4 order.
In the result, the original petition is allowed. Ext.P4 order is set aside to the extent of marking Ext.B1, without making it subject to proof. The Ext.B1 can be relied on in evidence, only if it is proved by its executants as enjoined in law.
Sd/-
C.S.DIAS Judge NR/03/06/2022 O.P.(C)No.633 of 2022 5 APPENDIX PETITIONER'S EXHIBITS ExhibitP1 TRUE COPY OF AFFIDAVIT SWORN IN BY 6 PERSONS WHICH WAS PRODUCED AND MARKED AS EXHIBIT B1 BY 1ST RESPONDENT HEREIN ExhibitP2 TRUE COPY OF PETITION FILED NO.IA 1/2022 IN OS 299/2019 ON THE FILE OF PRINCIPAL MUNSIFF COURT ,KANNUR BY PETITIONER HEREIN UNDER ORDER XIX RULE 1 CPC ExhibitP3 TRUE COPY OF COUNTER STATEMENT FILED BY 1ST RESPONDENT HEREIN ON IA 1/2022 IN OS 299/2019 ON THE FILE OF PRINCIPAL MUNSIFF COURT, KANNUR ExhibitP4 TRUE COPY OF ORDER DATED 11.03.2022 AND PASSED IN IA 1/2022 IN OS 299/2019 BY PRINCIPAL MUNSIFF KANNUR.