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. 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
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
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
