Vannarkandy Soopy vs Kottayil Bijoy
2021 Latest Caselaw 7468 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

           THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

 WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942

                       OP(C).No.346 OF 2018(O)

 AGAINST THE ORDER/JUDGMENT IN OS 197/2015 OF MUNSIFF COURT,
                          NADAPURAM


PETITIONER/1ST DEFENDANT:

            VANNARKANDY SOOPY
            S/O. ABDULLA, AGED 56 YEARS,
            KAVILUMPARA AMSOM, DESOM,
            VATAKARA TALUK, KOZHIKODE DIST.

            BY ADV. SRI.R.K.MURALEEDHARAN

RESPONDENTS/PLAINTIFF AND DEFENDANTS 2 & 3:

      1     KOTTAYIL BIJOY
            S/O. XAVIOUR, AGED 36 YEARS, KAVILUMPARA AMSOM,
            DESOM, VATAKARA TALUK, KOZHIKODE DIST - 673 101.

      2     KOROTHKANDIYIL KADEESA
            D/O. AMMAD, AGED 45 YEARS, EDACHERY AMSOM, DESOM,
            VATAKARA TALUK, KOZHIKODE DIST - 673 101.

      3     RAYAROTH SUHARA
            D/O. MOIDU, RESIDING AT PUTHIYEDATH, REPRESENTED
            BY HER FATHER, POWER OF ATTORNEY HOLDER,
            MALOLKANDIYIL MOIDU,AGED 61 YEARS, KUMMANKODE
            AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DIST -
            673 101.

            R1   BY   ADV.   SRI.P.B.KRISHNAN
            R1   BY   ADV.   SRI.P.M.NEELAKANDAN
            R1   BY   ADV.   SRI.SABU GEORGE
            R1   BY   ADV.   SRI.P.B.SUBRAMANYAN

     THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 03.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C).No.346 OF 2018

                                            2




                                      JUDGMENT

Dated this the 3rd day of March 2021

The defendant in O.S No.197/2015 on the file of the Munsiff

Court, Nadapuram being aggrieved by Ext.P9 order dated 06.01.2018

dismissing I.A.No.1168/2017 filed by him, has filed this O.P.

2. He was examined as DW1 in the suit and during his

examination, the court below recorded that, DW1 paid Rs.1,50,000/- to

one Xaviour, the father of the plaintiff. According to the petitioner, that

statement is erroneous and is not factually correct. He therefore sought

the expression "സസേവവ്യററിനന" to be corrected as "സസേവവ്യര". This is opposed by

the plaintiff contending that such a correction cannot be canvassed

under law after the examination of the witness is complete and the

deposition is signed. The learned court below accepted the objection

raised by the plaintiff and dismissed the correction petition by the

impugned order.

3. I heard the learned counsel appearing for the petitioner

as well as the respondents.

4. What is rather irrelevant in this matter is application of

Rule 146(2) Civil Rules of Practice. Under this Rule, when a witness is

under examination, he can point out to the Court, the mistake that crept

in his testimony before he signs the deposition. Under Rule 146(2), the OP(C).No.346 OF 2018

objection raised shall be considered by the Court and the memorandum

to that effect shall be recorded which will be part of the records.

5. The learned counsel for the petitioner submits that

Rule 146 (2) of the Civil Rules of Practice was not complied with by the

Court below and therefore the impugned order is vitiated by illegality. I

find my way difficult to accept this argument in as much as the

examination was completed on 24.11.2017 and the request was made

after three weeks on 19.12.2017. For legal reasons itself, there is no

scope for any interference with the impugned order. And consequently,

this O.P is liable to be dismissed.

In the result, O.P fails and it is dismissed. However, it is

made clear that, the question whether the impugned statement made by

DW1 is factually incorrect or otherwise, could be appreciated by the court

below in the light of the entirety of the facts, materials and circumstances

of the case. It is made clear that, this Court has not expressed any view

on merits of the statement given by DW1.

Sd/-

T.V.ANILKUMAR JUDGE SMF OP(C).No.346 OF 2018

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE AGREEMENT DATED 3.10.2012 EXECUTED BY THE PLAINTIFF'S FATHER.

EXHIBIT P2 A TRUE COPY OF EXT.A1 DOCUMENT PREPARED IN THE STAMP PAPER ON 15.6.2015.

EXHIBIT P3 A TRUE COPY OF THE PLAINT IN OS NO 197/2015 ON THE FILE OF MUNSIFF COURT, NADAPURAM.

EXHIBIT P4 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN OS NO.197/2015 ON THE FILE OF MUNSIFF'S COURT, NADAPURAM.

EXHIBIT P5 TRUE COPY OF THE LAWYER NOTICE DATED 18.6.2015 SENT BY REGD POST, SENT BY THE DEFENDANTS TO THE PLAINTIFF'S FATHER.

EXHIBIT P6 A TRUE COPY OF THE RELEVANT PAGE OF THE DEPOSITION OF THE PETITIONER AS DW1.

EXHIBIT P7 A TRUE COPY OF THE AFFIDAVIT ALONG WITH THE PETITION IN IA 1168/2017 FILED BY THE PETITIONER.

EXHIBIT P8 A TRUE COPY OF THE OBJECTION TO EXT.P7 FILED BY THE PLAINTIFF.

EXHIBIT P9 A TRUE COPY OF THE ORDER DATED 6.1.2018 IN I.A NO.11168/2017 IN OS NO.197/2015 OF THE MUNSIFF COURT, NADAPURAM.

//TRUE COPY// PA TO JUDGE