Manoharan vs Vincent

Kerala High Court

Manoharan vs Vincent on 21 May, 2024

Author: Kauser Edappagath

Bench: Kauser Edappagath

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

          THE HONOURABLE DR. JUSTICE    KAUSER EDAPPAGATH

     TUESDAY, THE 21ST DAY OF MAY   2024 / 31ST VAISAKHA, 1946

                      OP(C) NO. 1024 OF 2024

       IA 10/2024 IN OS NO.18 OF 2015 OF ASSISTANT SESSIONS
    COURT/PRINCIPAL SUB COURT / COMMERCIAL COURT,IRINJALAKUDA

PETITIONER/APPLICANT/DEFENDANT:

           MANOHARAN,
           AGED 62 YEARS,S/O. KATTIKULAM SANKARAN, PORATHISSERY
           DESOM & VILLAGE, MUKUNDAPURAM TALUK, THRISSUR-,
           PIN - 680125
           BY ADVS. K.M.MUHAMMED HUSSAIN T.K.VIPINDAS STEPHY
           THOMAS BALAKRISHNAN M.

RESPONDENT/RESPONDENT/PLAINTIFF:

           VINCENT,
           AGED 43 YEARS, S/O. MATHENCHIRA ANTHAPPAN, CHUNGAM
           DESOM, KARALAM VILLAGE, MUKUNDAPURAM TALUK, THRISSUR
           DISTRICT-, PIN - 680711
           BY ADVS. SANTHOSH P.PODUVAL R.RAJITHA(K/870/2005)
           CHITHRA S.BABU(K/376/2012)

     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21.05.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) 1024/2024
                               -2-




                           JUDGMENT

Exts.P9 and P10 orders of the Sub Judge, Irinjalakkuda are under challenge in this Original Petition. The petitioner is the defendant. The respondent is the plaintiff in a suit for return of advance amount based on an agreement for sale.

2. The trial of the suit has already been commenced. The plaintiff was examined as PW1. Ext.P5 application has been filed by the defendant to recall PW1 on the ground that his counsel omitted to put the vital questions when PW1 was examined. The defendant has also filed Ext.P7 application to depute an Advocate Commissioner to ascertain the nature and lie of the property and building situated therein, which are agreed to be sold by the agreement. The learned Sub Judge dismissed both applications after hearing both sides as per Exts.P9 and P10 orders.

OP(C) 1024/2024 -3-

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

4. Ext.P5 application has been filed on the ground that the counsel for the defendant failed to put certain vital questions on PW1 when he was cross-examined. The failure on the part of the counsel to put questions to a witness is not at all a ground for recalling a witness. That apart, the learned Sub Judge, who recorded evidence, opined that PW1 was strenuously cross-examined by the counsel. As stated already, the suit is for recovery of advance amount based on an agreement for sale. The total sale consideration shown in the agreement is Rs.97 lakhs. According to the defendant, the property would fetch more than Rs.2 Crores. It is to prove the same, the Commission application has been filed. The issues involved in the suit is whether there is an agreement for sale and whether the plaintiff is entitled to get back the advance OP(C) 1024/2024 -4- amount. To decide those issues, an Advocate Commissioner is not at all necessary.

The Original Petition fails, and accordingly, is dismissed.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE JS OP(C) 1024/2024 -5- APPENDIX OF OP(C) 1024/2024 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE PLAINT IN O.S.NO 18 OF 2015 ON THE FILES OF THE COURT OF SUBORDINATE JUDGE, IRINJALAKUDA DATED 24-01-2015 Exhibit P2 THE TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO 18 OF 2015 ON THE FILES OF THE COURT OF SUB JUDGE, IRINJALAKUDA DATED 20-07-2015 Exhibit P3 THE TRUE COPY OF THE REPLICATION FILED BY THE PLAINTIFF IN O.S.NO 18 OF 2015 DATED 25-10-2021 Exhibit P4 THE TRUE COPY OF THE JUDGEMENT IN FAO.NO. 67/2023 DATED 25-01-2024 Exhibit P5 THE TRUE COPY OF THE I.A.NO. 9/2024 IN O.S. NO: 18 OF 2015, DATED ..-03-2024 Exhibit P6 THE TRUE COPY OBJECTION FILED BY THE RESPONDENT TO THE I.A.NO. 9/2024 IN O.S. NO: 18 OF 2015, DATED 27-03-2024 Exhibit P7 THE TRUE COPY OF THE I.A.NO. 10/2024 IN O.S. NO:

18 OF 2015, DATED .-03-2024 Exhibit P8 THE TRUE COPY OBJECTION FILED BY THE RESPONDENT TO THE I.A.NO. 10/2024 IN O.S. NO: 18 OF 2015, DATED 27-03-2024 Exhibit P9 THE TRUE COPY OF THE ORDER IN I.A.NO.9 OF 2024 IN O.S. NO: 18 OF 2015 ON THE FILE OF COURT OF SUBORDINATE JUDGE, IRINJALAKUDA DATED 01-04-2024 Exhibit P10 THE TRUE COPY OF THE ORDER IN I.A.NO.10 OF 2024 IN O.S. NO: 18 OF 2015 ON THE FILE OF COURT OF SUBORDINATE JUDGE, IRINJALAKUDA DATED 01-04-2024