IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 24TH DAY OF MAY 2022 / 3RD JYAISHTA, 1944
OP(C) NO. 585 OF 2022
AGAINST THE ORDER DATED 31.01.2022 IN IA 5/2022 IN
O.S.NO.287/2018 OF MUNSIFF COURT, CHAVAKKAD
PETITIONER/1ST RESPONDENT/NON-PARTY :
KALLETTUMKARA SERVICE CO-OPERATIVE BANK
HAVING REGISTRATION NO.141,
KALLETTUMKARA P.O.,
THRISSUR DISTRICT-680 683,
REPRESENTED BY ITS SECRETARY-
MRS. K. LATHA, AGED 49 YEARS,
RESIDING AT KANATTU HOUSE,
ANANDAPURAM P.O.,
THRISSUR DISTRICT-680683
BY ADVS.
GEORGE POONTHOTTAM ( SENIOR ADVOCATE ) ALONG
WITH NISHA GEORGE
LUKE J CHIRAYIL
RESPONDENTS/PETITIONER & RESPONDENTS 2 & 3/PLAINTIFF &
RESPONDENTS 2 & 3 :
1 CKL NIDHI LIMITED
THAIKKAD AMSHAM,
THAIKKAD DESOM
CHAVAKKAD TALUK,
THRISSUR DISTRICT-680683
REPRESENTED BY ITS MANAGING DIRECTOR.
2 SANTHA
AGED 60 YEARS
CHIRAVARAMBATH HOUSE,
KALLETTUMKARA P.O.,
THRISSUR DISTRICT - 680683
3 NANDANAN
AGED 65 YEARS,
S/O.SRI.KUTTAPPAN,
O.P.(C)Nos.585, 591 and 594 of 2022
..2..
CHIRAVARAMBATHU HOUSE,
KALLETTUMKARA P.O.,
THRISSUR DISTRICT - 680683
BY ADVS.
SANTHOSH P.PODUVAL
R.RAJITHA(K/870/2005)
CHITHRA S.BABU(K/376/2012)
R.N.SANDEEP(K/000940/2013)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
24.05.2022, ALONG WITH OP(C)NOS.591/2022 AND 594/2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C)Nos.585, 591 and 594 of 2022
..3..
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 24TH DAY OF MAY 2022 / 3RD JYAISHTA, 1944
OP(C) NO. 591 OF 2022
AGAINST THE ORDER DATED 31.01.2022 IN IA 6/2022 IN OS
NO.353/2018 OF MUNSIFF COURT, CHAVAKKAD
PETITIONER/1ST RESPONDENT/NON-PARTY:
KALLETTUMKARA SERVICE CO-OPERATIVE BANK
HAVING REGISTRATION NO.141,
KALLETTUMKARA P.O.,
THRISSUR DISTRICT-680683
REPRESENTED BY ITS SECRETARY-
MRS. K. LATHA, AGED 49 YEARS,
RESIDING AT KANATTU HOUSE,
ANANDAPURAM P.O.,
THRISSUR DISTRICT-680683
BY ADV GEORGE POONTHOTTAM ( SENIOR ADVOCATE )
RESPONDENTS/PETITIONER & RESPONDENTS 2 & 3/PETITIONER &
RESPONDENTS :
1 CKL NIDHI LIMITED
THAIKKAD AMSHAM,
THAIKKAD DESOM
CHAVAKKAD TALUK,
THRISSUR DISTRICT-680683
REPRESENTED BY ITS MANAGING DIRECTOR.
2 NANDANAN
AGED 65 YEARS, S/O.SRI.KUTTAPPAN,
CHIRAVARAMBATHU HOUSE,
KALLETTUMKARA P.O.,
O.P.(C)Nos.585, 591 and 594 of 2022
..4..
THRISSUR DISTRICT - 680683
3 SURESH A.P.,
AGED 57 YEARS, S/O.PADMANABHAN,
RESIDING AT AIKKARATHARA HOUSE,
KONATHUKKUNNU P.O.,
THRISSUR DISTRICT-680683
BY ADVS.
SANTHOSH P.PODUVAL
R.RAJITHA(K/870/2005)
CHITHRA S.BABU(K/376/2012)
R.N.SANDEEP(K/000940/2013)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
24.05.2022, ALONG WITH OP(C)NOS.585/2022 AND 594/2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C)Nos.585, 591 and 594 of 2022
..5..
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 24TH DAY OF MAY 2022 / 3RD JYAISHTA, 1944
OP(C) NO. 594 OF 2022
AGAINST THE ORDER DATED 31.1.2022 IN IA NO.6/2022 IN OS
354/2018 OF MUNSIFF COURT,CHAVAKKAD
PETITIONER/1ST RESPONDENT/NON-PARTY :
KALLETTUMKARA SERVICE CO-OPERATIVE BANK
HAVING REGISTRATION NO. 141,
KALLETTUMKARA P.O.,
THRISSUR DISTRICT-680 683,
REPRESENTED BY ITS SECRETARY- MRS. K. LATHA,
AGED 49 YEARS, RESIDING AT KANATTU HOUSE,
ANANDAPURAM P.O.,
THRISSUR DISTRICT - 680683
BY ADV GEORGE POONTHOTTAM , (SENIOR ADVOCATE)
RESPONDENTS/PETITIONER & 3RD RESPONDENT
IN IA/PETITIONER, 3RD RESPONDENT &
LEGAL HEIRS OF THE DECEASED 2ND RESPONDENT IN O.S.:
1 CKL NIDHI LIMITED
THAIKKAD AMSHAM,
THAIKKAD DESOM
CHAVAKKAD TALUK,
THRISSUR DISTRICT-680683
REPRESENTED BY ITS MANAGING DIRECTOR
2 NANDANAN
AGED 66 YEARS, S/O.KUTTAPPAN,
O.P.(C)Nos.585, 591 and 594 of 2022
..6..
CHIRAVARAMBATH HOUSE,
KALLETTUMKARA P.O.,
THRISSUR DISTRICT- 680683
3 CHANDRAN T.K.
AGED 57 YEARS
S/O.LATE KOCHUKUTTAN
THEKKEPPATTU HOUSE,
ELAVALLY P.O.,
THRISSUR DISTRICT - 680511
4 T.K.VIJAYAN
AGED 53 YEARS
S/O. LATE KOCHUKUTTAN,
ELAVALLY VILLAGE,
ELAVALLY DESOM,
ELAVALLY P.O.,
THRISSUR DISTRICT - 680511
5 T.K. SULOCHANA
AGED 50 YEARS
D/O.LATE KOCHUKUTTAN,
ELAVALLY VILLAGE,
ELAVALLY DESOM,
ELAVALLY P.O.,
THRISSUR DISTRICT - 680511
6 T.K. RAVEENDRAN
AGED 47 YEARS
S/O. LATE KOCHUKUTTAN
ELAVALLY VILLAGE,
ELAVALLY DESOM
ELAVALLY P.O.,
THRISSUR DISTRICT - 680511
BY ADVS.
SANTHOSH P.PODUVAL
R.RAJITHA(K/870/2005)
CHITHRA S.BABU(K/376/2012)
R.N.SANDEEP(K/000940/2013)
O.P.(C)Nos.585, 591 and 594 of 2022
..7..
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
24.05.2022, ALONG WITH OP(C)NOS.585/2022 AND 591/2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C)Nos.585, 591 and 594 of 2022
..8..
"CR"
A.BADHARUDEEN, J.
------------------------------------------------------------
O.P.(C)Nos.585, 591 and 594 of 2022
------------------------------------------------------------
Dated this the 24th day of May, 2022 COMMON JUDGMENT In these original petitions filed under Article 227 of the Constitution of India, the petitioner, who had filed claim petitions, impugns separate orders passed in I.A.No.5 of 2022 in O.S.No.287 of 2018 dated 31.01.2022, I.A.No.6 of 2022 in O.S.No.353 of 2018 and I.A.No.6 of 2022 in O.S.No.354 of 2018 on the file of the Munsiff Court, Chavakkad.
2. Heard the learned counsel for the petitioner as well as the learned counsel for the first respondent/the plaintiff in the suit. No representation for respondents 2 and 3, though notice O.P.(C)Nos.585, 591 and 594 of 2022 ..9..
served on them.
3. Going by the orders impugned, it appears that respective petitions filed by the petitioner in the claim petition seeking permission to put leading questions to the witnesses shown in the list, was allowed by the learned Munsiff by a non-speaking order. The orders impugned in all these petitions is as under;
"No counter. Heard. Allowed."
4. It is submitted by the learned counsel for the petitioner that the court below went wrong in passing such an order, since putting leading questions directly to a witness is not permissible in the eye of law when there is objection by the other side and the procedure for the same is different. Accordingly, the learned counsel for the petitioner seeks interference in separate orders impugned.
5. Opposing this contention, the learned counsel for the first respondent/plaintiff would submit that since the first respondent apprehended that the witnesses in the list, sought to be examined, would not support the case of the plaintiff and in O.P.(C)Nos.585, 591 and 594 of 2022 ..10..
anticipation of the said fact, the plaintiff filed the above petitions to put leading questions during their examination. Therefore, the orders impugned do not require any interference.
6. In view of the rival contentions, the legal questions pose for consideration are;
(1) What is a leading question? And when leading questions can be asked?
(2) What is the procedure to be followed for asking leading questions, if putting leading questions objected by the adverse party?
(3) What is the provision in the Evidence Act dealing with putting leading questions by the party to a witness who calls the witness?
(4) Which provision in the Evidence Act enables the party who calls a witness to cross-examine his own witness?
(5) Can a party in a civil suit request the Court for permission to cross-examine the witness called by him, as provided under Section 154 of the Evidence Act? O.P.(C)Nos.585, 591 and 594 of 2022 ..11..
7. In order to answer the above queries, reference to the relevant provisions of the Evidence Act is necessary. Section 135 of the Evidence Act provides that the order in which witnesses are to be produced and examined. It is provided that production and examination of witnesses shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court.
8. Order 18 of Code of Civil Procedure deals with the procedure of hearing of suits and examination of witnesses. As per Order 18 Rule 1, the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin. Thus, normally, the right to begin examination of the witnesses is that of the plaintiff or the petitioner, as the case may be, subject to the condition stipulated in Order 18 Rule 1. O.P.(C)Nos.585, 591 and 594 of 2022 ..12..
9. Examination of witnesses generally includes three stages as provided under Section 137 of the Evidence Act.
Examination-in-chief or chief-examination is examination of a witness by the party who calls him. Cross-examination means examination of a witness by the adverse party and re-examination means examination of a witness by the party who called him subsequent to cross-examination.
10. Thus, it is clear that when a party summons or produces witness/witnesses, the said party shall examine the witness in chief and the adverse party has to cross-examine the witness/witnesses.
11. Coming to the definition of leading questions, Section 141 of the Evidence Act is relevant. Under Section 141, any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question.
12. Section 142 of the Evidence Act deals with the situation when leading questions must not be asked and it is provided that leading questions must not, if objected to by the O.P.(C)Nos.585, 591 and 594 of 2022 ..13..
adverse party, be asked in an examination-in-chief, or in a re-
examination, except with the permission of the Court. It has been provided further that the Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved. Thus, it is clear that the leading questions must not be asked normally except in the context covered by Section 142 of the Evidence Act. At the same time, Section 142 carves out an exception thereby, leading questions can be put with the permission of the Court. But, the same is not a general permission throughout the examination of the witnesses and it can be in relation to certain questions which are necessary, for which, specific permission of the Court shall be obtained during the course of examination of the witnesses. No doubt, such permission can be sought orally and not in writing.
13. Section 143 provides that the leading questions may be asked in cross-examination.
14. In the case on hand, apprehending hostility of the witnesses, the plaintiff sought permission of the Court to put O.P.(C)Nos.585, 591 and 594 of 2022 ..14..
leading questions. Here, admittedly, the plaintiff filed petition to call the witnesses and therefore, the right to examine the witnesses in chief is that of the plaintiff.
15. Section 154 of the Evidence Act deals with situation when the Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-
examination by the adverse party. Here, even before the witnesses on the box, the court below granted permission to put leading questions. I do not think that such a procedure is correct. The right of a party who calls the witnesses, to put leading questions would come into play, under Section 142 of the Evidence Act and the right of a party who calls the witnesses to cross-examine the witnesses is provided under Section 154 of the Evidence Act, and the said situation will arise only when the witness is on the box and during examination-in-chief. Thus, it appears that, if the plaintiff herein in the present case is having apprehension or otherwise, in the matter of evidence to be given by the witness, he shall wait till the time for examination of the witnesses and if a situation arises to invoke the O.P.(C)Nos.585, 591 and 594 of 2022 ..15..
permission of the Court provided under Section 142 or under Section 154 of the Evidence Act, the same can be resorted to.
16. Another relevant point is; can a party in a civil suit request the Court for permission to cross-examine the witness called by him, as provided under Section 154 of the Evidence Act?
This legal position has been settled by a decision of this Court reported in [2001(1) KLT 776], Thankamani v. Prabhakaran and subsequently followed in [2008(2) KHC 486], Ramraj N. and Another v. Madhu and Others. Therefore, the said course of action is permissible in civil cases as well. Here, the court below permitted the plaintiff to put leading questions even before the witnesses on the box and before start of their examination and the said procedure is not permitted under law and therefore, the separate orders impugned herein found to be illegal and the same stand set aside.
Accordingly, these original petitions stand allowed.
It is made clear that, when during examination of the witnesses, if a situation arises to seek the permission of the Court O.P.(C)Nos.585, 591 and 594 of 2022 ..16..
provided under Section 142 or under Section 154 of the Evidence Act would arise, the petitioner can very well invoke the same in accordance with law.
Sd/-
A.BADHARUDEEN, JUDGE rkj O.P.(C)Nos.585, 591 and 594 of 2022 ..17..
APPENDIX OF OP(C) 585/2022 PETITIONER EXHIBITS Exhibit-P1 TRUE COPY OF THE PETITION NUMBERED AS I.A. NO. 2 OF 2020 IN O.S. NO. 287 OF 2018, ON THE FILES OF THE HON'BLE MUNSIFF COURT AT CHAVAKKADU Exhibit-P2 TRUE COPY OF THE I.A. NO. 1786 OF 2018 IN O.S. NO. 287 OF 2018 ON THE FILES OF THE HON'BLE MUNSIFF COURT AT CHAVAKKAD. Exhibit-P3 TRUE COPY OF THE ORDER DATED 02.03.2018 IN I.A. NO. 1786 OF 2018 IN O.S. NO. 287 OF 2018 Exhibit-P4 TRUE COPY OF THE ATTACHMENT REPORT DATED 16.11.2018 IN I.A. NO. 1786 OF 2018 IN O.S. NO. 287 OF 2018 ON THE FILES OF THE MUNSIFF COURT AT CHAVAKKAD PREPARED BY THE AMIN, ADDITIONAL DISTRICT COURT AT IRINJALAKKUDA Exhibit-P5 TRUE COPY OF THE ATTACHMENT WARRANT DATED 06.03.2018 IN I.A. NO.1786 OF 2018 IN O.S. NO. 287 OF 2018 ON THE FILES OF THE MUNSIFF COURT AT CHAVAKKAD Exhibit-P6 TRUE COPY OF THE JUDGMENT DATED 21.12.2019 IN O.S. NO. 287 OF 2018, ON THE FILES OF THE HON'BLE MUNSIFF COURT AT CHAVAKKAD.
Exhibit-P7 TRUE COPY OF THE DECREE DATED 21.12.2019 IN O.S. NO. 287 OF 2018, ON THE FILES OF THE HON'BLE MUNSIFF COURT AT CHAVAKKAD. Exhibit-P8 ORDER DATED 06.01.2022 IN O.P(C) NO.13 OF 2022 ON THE FILES OF HON'BLE HIGH COURT OF KERALA O.P.(C)Nos.585, 591 and 594 of 2022 ..18..
Exhibit-P9 TRUE COPY OF THE PETITION DATED 25.01.2022 WHICH IS NUMBERED AS I.A. NO.5/2022 IN O.S. NO.287/2018 ON THE FILES OF HON'BLE MUNSIFF COURT, CHAVAKKAD Exhibit-P10 TRUE COPY OF THE ORDER DATED 31.1.2022 IN I.A. NO.5/2022 IN O.S. NO.287/2018 ON THE FILES OF HON'BLE MUNSIFF COURT, CHAVAKKAD O.P.(C)Nos.585, 591 and 594 of 2022 ..19..
APPENDIX OF OP(C) 591/2022 PETITIONER EXHIBITS Exhibit-P1 TRUE COPY OF THE PETITION NUMBERED AS I.A. NO. 2 OF 2020 IN O.S. NO. 353 OF 2018, ON THE FILES OF THE HON'BLE MUNSIFF COURT AT CHAVAKKADU.
Exhibit-P2 TRUE COPY OF THE I.A. NO. 2295 OF 2018 IN O.S. NO. 353 OF 2018 ON THE FILES OF THE HON'BLE MUNSIFF COURT AT CHAVAKKAD. Exhibit-P3 TRUE COPY OF THE ORDER DATED 19.03.2018 IN I.A. NO. 2295 OF 2018 IN O.S. NO. 353 OF 2018.
Exhibit-P4 TRUE COPY OF THE ATTACHMENT REPORTS DATED 02.05.2018 IN I.A. NO. 2295 OF 2018 IN O.S. NO. 353 OF 2018 ON THE FILES OF THE MUNSIFF COURT AT CHAVAKKAD PREPARED BY THE AMIN.
Exhibit-P4(a) TRUE COPY OF THE ATTACHMENT REPORTS DATED 22.11.2018 IN I.A. NO. 2295 OF 2018 IN O.S. NO. 353 OF 2018 ON THE FILES OF THE MUNSIFF COURT AT CHAVAKKAD PREPARED BY THE AMIN.
Exhibit-P5 TRUE COPY OF THE ATTACHMENT WARRANT DATED 24.03.2018 IN I.A. NO. 2295 OF 2018 IN O.S. NO. 353 OF 2018 ON THE FILES OF THE MUNSIFF COURT AT CHAVAKKAD.
Exhibit-P5(a) TRUE COPY OF THE ATTACHMENT WARRANT DATED 24.03.2018 IN I.A. NO. 2295 OF 2018 IN O.S. NO. 353 OF 2018 ON THE FILES OF THE MUNSIFF COURT AT CHAVAKKAD.
Exhibit-P6 TRUE COPY OF THE JUDGMENT DATED 30.01.2019 IN O.S. NO. 353 OF 2018, ON O.P.(C)Nos.585, 591 and 594 of 2022 ..20..
THE FILES OF THE HON'BLE MUNSIFF COURT AT CHAVAKKAD.
Exhibit-P7 TRUE COPY OF THE DECREE DATED 30.01.2019 IN O.S. NO. 353 OF 2018, ON THE FILES OF THE HON'BLE MUNSIFF COURT AT CHAVAKKAD. Exhibit-P8 TRUE COPY OF THE JUDGMENT DATED 06.01.2022 IN O.P.(C) NO. 16 OF 2022 PASSED BY THIS HON'BLE COURT.
Exhibit-P9 TRUE COPY OF THE PETITION DATED 25.01.2022 WHICH IS NUMBERED AS I.A. NO.6/2022 IN O.S. NO. 353 OF 2018 ON THE FILES OF HON'BLE MUNSIFF COURT, CHAVAKKAD Exhibit-P10 TRUE COPY OF THE ORDER DATED 31.1.2022 IN I.A. NO.6/2022 IN O.S. NO. 353 OF 2018 ON THE FILES OF HON'BLE MUNSIFF COURT, CHAVAKKAD.
O.P.(C)Nos.585, 591 and 594 of 2022 ..21..
APPENDIX OF OP(C) 594/2022 PETITIONER EXHIBITS Exhibit-P1 TRUE COPY OF THE PETITION NUMBERED AS I.A. NO. 2 OF 2020 IN O.S. NO. 354 OF 2018, ON THE FILES OF THE HON'BLE MUNSIFF COURT AT CHAVAKKADU.
Exhibit-P2 TRUE COPY OF THE I.A. NO. 2293 OF 2018 IN O.S. NO. 354 OF 2018 ON THE FILES OF THE HON'BLE MUNSIFF COURT AT CHAVAKKAD. Exhibit-P3 TRUE COPY OF THE ORDER DATED 19.03.2018 IN I.A. NO. 2293 OF 2018 IN O.S. NO. 354 OF 2018 Exhibit-P4 TRUE COPY OF THE ATTACHMENT REPORTS DATED 03.05.2018 IN I.A. NO. 2293 OF 2018 IN O.S. NO. 354 OF 2018 ON THE FILES OF THE MUNSIFF COURT AT CHAVAKKAD PREPARED BY THE AMIN.
Exhibit-P4(a) TRUE COPY OF THE ATTACHMENT REPORTS DATED 27.05.2018 IN I.A. NO. 2293 OF 2018 IN O.S. NO. 354 OF 2018 ON THE FILES OF THE MUNSIFF COURT AT CHAVAKKAD PREPARED BY THE AMIN.
Exhibit-P5 TRUE COPY OF THE ATTACHMENT WARRANT DATED 21.03.2018 IN I.A. NO.2293 OF 2018 IN O.S. NO. 354 OF 2018 ON THE FILES OF THE MUNSIFF COURT AT CHAVAKKAD.
Exhibit-P5(a) TRUE COPY OF THE ATTACHMENT WARRANT DATED 21.03.2018 IN I.A. NO.2293 OF 2018 IN O.S. NO. 354 OF 2018 ON THE FILES OF THE MUNSIFF COURT AT CHAVAKKAD.
Exhibit-P6 TRUE COPY OF THE JUDGMENT DATED 05.12.2019 IN O.S. NO. 354 OF 2018, ON O.P.(C)Nos.585, 591 and 594 of 2022 ..22..
THE FILES OF THE HON'BLE MUNSIFF COURT AT CHAVAKKAD.
Exhibit-P7 TRUE COPY OF THE DECREE DATED 05.12.2019 IN O.S. NO. 354 OF 2018, ON THE FILES OF THE HON'BLE MUNSIFF COURT AT CHAVAKKAD Exhibit-P8 TRUE COPY OF THE JUDGMENT DATED 06.01.2022 IN O.P.(C) NO. 18 OF 2022 PASSED BY THIS HON'BLE COURT Exhibit-P9 TRUE COPY OF THE PETITION DATED 25.01.2022 WHICH IS NUMBERED AS I.A. NO.6/2022 IN O.S. NO. 354 OF 2018 ON THE FILES OF HON'BLE MUNSIFF COURT, CHAVAKKAD Exhibit-P10 TRUE COPY OF THE ORDER DATED 31.1.2022 IN I.A. NO.6/2022 IN O.S. NO. 354 OF 2018 ON THE FILES OF HON'BLE MUNSIFF COURT, CHAVAKKAD