Kerala High Court
Kallettumkara Service ... vs Ckl Nidhi Limited on 24 May, 2022
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
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
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
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
