Manikandan vs Velayudhan
2023 Latest Caselaw 8601 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                   THE HONOURABLE MR.JUSTICE C.S.DIAS
       WEDNESDAY, THE 9TH DAY OF AUGUST 2023 / 18TH SRAVANA, 1945
                          OP(C) NO. 331 OF 2023
 (THE ORDER IN IA NO.4/2013 (164/2023) IN OS NO.116/2018 OF THE COURT OF
                THE MUNSIFF OF ALATHUR DATED 28.01.2023)
PETITIONER/PETITIONER/DEFENDANT:

           MANIKANDAN
           AGED 56 YEARS
           S/O.ARUNACHALA MUTHALIYAR,
           NEAR SUNITHA TEXTILES, PAZHAMBALACODE.
           P. O ALATHUR, PALAKKAD, PIN - 678544
           BY ADV V.A.JOHNSON (VARIKKAPPALLIL)

RESPONDENT/RESPONDENT/PLAINTIFF:

           VELAYUDHAN
           AGED 50 YEARS
           S/ O. ARUNACHALA MUTHALIYAR,
           PADMALAYAM HOUSE, PAVADIYIL,
           KAMALAKSHI AMMAN KOVIL PAZHAMBALACODE.P.O
           ALATHUR, PALAKKAD, PIN - 678544
           BY ADV JEENA JOSEPH

     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.08.2023, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OPC No.331 of 2023
                                  2




                          C. S. DIAS, J.
                -------------------------
                     O.P.(C.) No.331 of 2023
                -------------------------
          Dated this the 09th day of August, 2023

                           JUDGMENT

The original petition is filed assailing Ext.P4

order passed by the Court of Munsiff, Alathur in

I.A. No.4/2023 (164/2023) in O.S. No.116/2018.

2. The brief relevant facts for the

determination of the original petition are as

follows:

2.1 The respondent has filed the suit against

the petitioner seeking a decree for recovery of

money.

2.2 The petitioner has resisted the suit

through Ext.P1 written statement.

2.3 The petitioner has contended that he paid

an amount of Rs.3,18,000/- to the respondent OPC No.331 of 2023

through a cheque of the PDC Bank, Alathur.

2.4 The respondent was cross-examined as

PW2 and he deposed in his cross-examination

that he has not received any amount from the

petitioner by way of cheque. In order to discredit,

the respondent's oral testimony, the petitioner

examined DW4 - the Manager of the Bank and

marked the cheque in question as Ext.P2.

However, DW4 gave a vague answer as regards

the signature seen on the cheque. In order to

bring clarity in the oral testimony of DW2, the

petitioner filed IA No.4/2023 (Ext.P2) to recall

him and give evidence in tune to the oral

testimony of DW4.

2.5 The application was opposed by the

respondent through Ext.P3 written objection. The

court below after appreciating the rival

pleadings, by the impugned Ext.P4 order, has

rejected Ext.P2 application. The petitioner had OPC No.331 of 2023

also filed IA No.3/2023 to send the cheque in

question for expert opinion. That application was

also dismissed. But, the petitioner does not

proposed to challenge the said orders. The

petitioner is aggrieved by Ext.P4 order. Hence,

the original petition.

3. The respondent has filed a counter

affidavit denying the allegations in the original

petition. The respondent has contended that suit

was listed for trial on 03.12.2022. The

respondent's sides evidence was recorded on

09.12.2022, by examining PW1 and PW2. The

suit was thereafter adjourned from time to time

for the evidence of the petitioner and his

witnesses. It is after the examination of DWs 1 to

4, that the petitioner filed IA No.1/2023 to recall

the respondent. The application was opposed by

the respondent. The court below dismissed the

said application by Ext.R1(a) order. Thereafter, OPC No.331 of 2023

the petitioner filed Ext.P2 application to recall

himself and be re-examined, which was rejected

by the court below by Ext.P4 order. Furthermore,

the petitioner's application to sent the cheque for

an expert opinion was also rejected by the court

below by Ext.R1(b) order. The petitioner has not

challenged Exts.R1(a) or R1(b) orders. There is

no merit in the original petition, which may be

dismissed.

4. Heard; Sri.V.A.Johnson, the learned

Counsel appearing for the petitioner and

Smt.Jeena Joseph, the learned Counsel appearing

for the respondent.

5. The question is whether there is any

illegality in Ext.P4 order.

6. On an appreciation of the pleadings and

materials on record, it can be gathered that the

petitioner's limited relief in Ext.P2 application is

to recall himself for the purpose of deposing that OPC No.331 of 2023

the cheque in question was issued by the

respondent.

7. Admittedly, the petitioner's applications

for recalling the respondent and for sending the

cheque for expert opinion have been rejected by

Exts.R1(a) and R1(b) orders, which have attained

finality.

8. Thus, as matters stand now, the only

limited relief is to permit the petitioner to be

recalled and give further evidence.

9. On a conspectus of the entire facts and

circumstances, I deem it appropriate, for

whatever be its worth, to grant the petitioner one

more opportunity to give further evidence on the

aspect that the cheque in question was issued by

the respondent, which will do complete justice to

both sides.

10. In the light of the above findings, I am

inclined to exercise the discretionary power of OPC No.331 of 2023

this Court under Order 18 Rule 17 of the Code of

Civil Procedure read with Article 227 of the

Constitution of India.

Resultantly, I order the original petition as

follows:

(i) Ext.P4 order is set aside.

(ii) Ext.P2 application is allowed.

(iii) The petitioner shall appear before the

court below on 04.09.2023 and give evidence and

the respondent shall be permitted to cross-

examine the petitioner.

(iv) As the suit is of the year 2018, the court

below is directed to consider and dispose of the

suit, in accordance with law and as expeditiously

as possible, at any rate on or before 31.10.2023.

Sd/-

C. S. DIAS JUDGE SKP/09-08 OPC No.331 of 2023

APPENDIX OF OP(C) 331/2023

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.116/2018 OF THE COURT OF THE MUNSIFF OF ALATHUR EXHIBIT P2 TRUE COPY OF THE I.A.NO.4/2023 (164/2023) IN O.S.NO.116/2018 OF THE COURT OF THE MUNSIFF OF ALATHUR EXHIBIT P3 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT EXHIBIT P4 CERTIFIED COPY OF THE ORDER IN I.A.NO.4/2023 (164/2023) IN O.S.NO.116/2018 OF THE COURT OF THE MUNSIFF OF ALATHUR DATED 28/1/23 EXHIBIT.P5 TRUE COPY OF THE O.S.NO.116/2018 OF THE COURT OF THE MUNSIFF OF ALATHUR RESPONDENT'S EXHIBITS:

EXHIBIT R1 (A) TRUE PHOTOCOPY OF THE ORDER DATED 17/1/2023 IN IA NO.1/2023 IN OS NO.116/2018 OF THE MUNSIFF COURT ALATHUR .

EXHIBIT R1 (B) TRUE PHOTOCOPY OF THE ORDER DATED 3/2/2023 IN IA NO.3/2023 IN OS NO.116/2018 OF THE MUNSIFF COURT ALATHUR.

TRUE COPY

P.A. TO JUDGE