Kerala High Court
Muhammed Aslam Master K.K vs Pankajakshan .A on 3 January, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
WEDNESDAY, THE 3RD DAY OF JANUARY 2024 / 13TH POUSHA, 1945
OP(C) NO. 2582 OF 2022
AGAINST THE ORDER DATED 28/11/2022 IN OP(EL) 6/2021 OF PRINCIPAL MUNSIFF
COURT, KANNUR
PETITIONER/PETITIONER:
1 MUHAMMED ASLAM MASTER K.K.
S/O.ABDULLAH HAJI
AGED 41 YEARS
RESIDING AT BAITHUL SABAR,KACHERI PARAMBA,
P.O. MUNDERI ,KANNUR., PIN - 670591
BY ADVS.
RAJ CAROLIN V.
M.K.SUMOD
ABDUL RAOOF PALLIPATH
K.R.AVINASH
VIDYA M.K.
RESPONDENTS/RESPONDENTS:
1 PANKAJAKSHAN A.
S/O.KUMARAN
AGED 46 YEARS
RESIDING AT "NEST", P.O. MUNDERI KANNUR, PIN - 670591
2 RAJAN VIDUMBIL
AGED 38 YEARS
S/O BALAN, RESIDING AT MOOLAKKAL HOUSE KACHERIPARMABA,
P.O MUNDERI KANNUR., PIN - 670591
3 SHAFI MUNDERI
AGED 34 YEARS
S/O KHADER V, AGED 34 YEARS RESIDING AT REMLA MAHAL,
MUNDERIMOTTA P.O. MUNDERI KANNUR., PIN - 670591
BY ADVS.
P.U.SHAILAJAN
NIDHEESH T.P(K/1242/2020)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03.01.2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C.) No.2582 of 2022
2
C.JAYACHANDRAN, J.
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O.P.(C.) No.2582 of 2022
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Dated this the 03rd day of January, 2024
JUDGMENT
The petitioner herein is the petitioner in Election
Petition No.6/2021 pending before the Munsiff Court,
Kannur. He is aggrieved by Ext.P3 order, as per which,
the petitioner's evidence was closed, without ensuring
the presence of the witnesses cited in the witness list
for the purpose of adducing evidence.
2. Heard the learned counsel for the petitioner
and the learned counsel for the first respondent.
Though notice was served to other respondents, there
is no representation.
3. Learned counsel for the petitioner submits
that a witness list containing the names and addresses
of, as many as, fourteen witnesses has been filed, of
which, the petitioner and three other witnesses alone
were examined. Though summons were issued to other
witnesses, they have not cared to attend the Court. The
Court has also issued bailable warrant, which step also
evoked no response. According to the learned counsel,
who invited the attention of this Court to Sections 30
and 32 of the Code of Civil Procedure, the Court has to
play a pro-active role in securing the attendance of the
witnesses, especially in a proceeding like election
petition, where the witnesses are persons who are
staunch supporters of the ruling party, to which the first
respondent, the return candidate, belong. Once the
Court makes up its mind to issue summons to the
witnesses, it is for the Court to ensure that the
presence of such witnesses are secured for the purpose
of giving evidence, is the submission of the learned
counsel for the petitioner.
4. This application was seriously opposed by the
learned counsel for the first respondent, by pointing out
that adequate opportunity was given to the petitioner
and no effective steps were taken by him, which
resulted in Ext.P3 order closing the evidence of the
petitioner.
5. Having heard the learned counsel appearing
on both sides, this Court is of the view that the
petitioner can be afforded one more opportunity to
adduce evidence through the witnesses mentioned in
the witness list. As pointed out by the learned counsel
for the petitioner, Section 32 of the Code of Civil
Procedure refers to four specific remedies to compel the
attendance of a person, to whom summons has been
issued. It is not in dispute that all the remedies
contemplated in Section 32 has not been exhausted as
against those witnesses, whose presence could not be
secured. Although this Court may endorse the
submission of the learned counsel for the petitioner that
the Courts have a pro-active role to be performed in
compelling the attendance of the witnesses, this Court
is not in a position to accept the contention that it is
wholly the look out of the Court to secure their
presence by resorting to one or other measure specified
in Section 32. This Court is of the view that for an
effective application of the measures specified in
Section 32, necessary application containing the
required data, has to be filed by the petitioner.
6. In the circumstances, Ext.P3 order is set
aside. The petitioner is given two more weeks' time to
take effective steps against those witnesses, whose
presence could not be secured, dehors issuance of
summons. It will be open for the petitioner to file
necessary application demanding invocation of one or
other or all of the remedies contemplated in Section 32,
supported by such particulars to be furnished for an
effective invocation of such remedy. Once such steps
are taken, the court below will resort to the remedies
under Section 32 in accordance with law, to secure the
presence of the witnesses. It is also clarified that it will
be open for the learned Munsiff to issue non bailable
warrant through the Superintendent of Police, so as to
ensure the presence of the witnesses.
With these observations, this original petition will
stand disposed of.
Sd/-
C. JAYACHANDRAN
JUDGE
SKP/03-01
APPENDIX OF OP(C) 2582/2022
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PETITION IN OP (E) 6/2021
BEFORE THE MUNSIFF COURT, KANNUR DATED
14.01.2021.
EXHIBIT P2 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE
FIRST RESPONDENT IN OP (E) 6/2021 FILED BY THE
1ST RESPONDENT DATED 15.03.2021.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED 28/11/2022 IN
OP(EL) 6/2021 OF THE MUNSIFF OF KANNUR.
EXHIBIT P4 THE TRUE COPY OF THE CASE STATUS DATED
10/06/2022 TAKEN FROM E COURT SERVICES.
EXHIBIT P5 THE TRUE COPY OF THE CASE STATUS DATED
27.06.2022 TAKEN FROM E COURT SERVICES.
EXHIBIT P6 THE TRUE COPY OF THE CASE STATUS DATED
31.08.2022 TAKEN FROM E COURT SERVICES.
EXHIBIT P7 THE TRUE COPY OF THE CASE STATUS DATED
08.11.2022 TAKEN FROM E COURT SERVICES.
EXHIBIT P8 THE TRUE COPY OF THE CASE STATUS DATED
15.11.2022 TAKEN FROM E COURT SERVICES.
RESPONDENTS' EXHIBITS:NIL
TRUE COPY
P.A. TO JUDGE
