Kerala High Court
N.K.Jayakumar vs M/S. Aswani Apparels Priceless Shop on 28 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 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
OP(C) NO. 471 OF 2024
AGAINST THE ORDER DATED 23.01.2024 IN I.A. NO.1263/2019 IN
OS NO.18 OF 2015 OF ASSISTANT SESSIONS COURT/II ADDITIONAL
SUB COURT,ERNAKULAM
PETITIONER/2ND RESPONDENT/DEFENDANT:
N.K.JAYAKUMAR
AGED 48 YEARS
S/O.V.G. KUMARAN NAIR, 'REVATHY' HOUSE,
KURUMASSERY P.O, OPP. BETHRONY SEMINARY, EMAKULAM
DISTRICT, PIN - 683579
BY ADVS.
BOBBY MATHEW KOOTHATTUKULAM
V.S.ARCHANA CHANDRAN
RESPONDENTS/PETITIONER AND RESPONDENT 1 &3/PLAINTIFF AND
DEFENDANTS 1 &3:
1 M/S. ASWANI APPARELS PRICELESS SHOP,
VYTILLA, ERNAKULAM, A REGISTERED PARTNERSHIP FIRM
REPRESENTED BY ITS PARTNER SUSHIL D. ASWANI, AGED
39 YEARS., PIN - 682019
2 SUDHEESH NARAYANAN
AGED 62 YEARS
S/O. LATE ANANTHA KRISHNA IYER RESIDING AT
AVITTOM, KADAVANTHRA, COCHIN-682020. NOW RESIDING
AT MADAMPADY KIZHEKKE MADOM, MANCOMPU KARA,
PULINKUNNU VILLAGE, KUTTANAD TALUK, ALLEPPEY
DISTRICT,, PIN - 688502
3 SMT. NIRMALA SISUPALAN
AGED 47 YEARS
W/O. T.C SLSUPALAN, THACHAITH HOUSE, NEAR ST
JOHN'S HOSPITAL, UDAYAMPEROOR, SOUTH PARAVOOR,
ERNAKULAM DISTRICT, PIN - 682307
2
OP(C) No. 471 of 2024
BY ADVS.
A.T.ANILKUMAR A.T.
B.RENJITHKUMAR
P.M.NATESAN(K/000569/1987)
CLARA SHERIN FRANCIS(K/638/2020)
SANGEERTHANA M.(K/002738/2022)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
3
OP(C) No. 471 of 2024
Dated this the 28th day of May, 2024
JUDGMENT
This Original Petition has been filed challenging Ext.P8
order passed by the Sub Court, Ernakulam (for short 'the
trial court') allowing an application under Order 18 Rule 17
of the Code of Civil Procedure (for short C.P.C.) to recall
PW1.
2. The original petitioner is the defendant and the
respondents are the plaintiff and defendants 1 and 3
respectively in O. S. No.18/2015 before the trial court. The
case of the plaintiff was that the defendants 1 to 3 while
working as assistant manager, showroom manager and
supervisor in the plaintiff's firm misappropriated a sum of
Rs.15,52,500/- (Rupees fifteen lakh fifty two thousand and
five hundred only). It is to realise the said amount, the suit
has been instituted. The plaintiff was examined as PW1.
Thereafter, the petitioner herein was examined as DW2.
When DW2 was examined, the original of the register of
wages extracted for the period from 01.12.2012 to
31.12.2012 in respect of defendants 1 to 3 were shown to
him and the question regarding their names, designations
and signatures mentioned in the wage extract were put. He
admitted their designations seen in the register of wage
extract, but denied their signatures. Thereafter, the plaintiff
produced the original of the register of wage extract for the
above period and filed Ext.P4 application to recall and
reopen the evidence of PW1 and also to mark the registers
produced. The trial court as per Ext.P8 order allowed Ext.P4
application. It is challenging the said order, this Original
Petition has been filed.
3. I have heard Sri.Bobby Mathew Koothattukulam, the
learned counsel for the petitioner and Sri. A. T. Anilkumar
and Sri. B. Renjithkumar for the respondents 1 and 2,
respectively.
4. As per Order 18 Rule 17 of C.P.C., the court is
empowered to recall any witness who has been already
examined at any stage of the suit, if it is necessary for the
just decision of the case. The learned counsel for the
petitioner relying on two judgments of the Supreme Court of
India in Velusamy K. K. vs. N. Palanisamy [2011 KHC
4302] and Vadiraj Naggappa Vernekar (D) Through Lrs.
vs. Sharad Chand Prabhakar Gogate [2009 KHC 4539]
submitted that Order 18 Rule 17 of C.P.C. application cannot
be allowed as a matter of routine and the said provision
cannot be used to fill up the omissions in the evidence of a
witness who has already been examined. In Velusamy K.
K. (supra), it was held that the power under Order 18 Rule
17 C.P.C. is not intended to be used routinely, merely for the
asking. However, it was observed that where the application
is found to be bona fide and where the additional evidence,
oral or documentary, will assist the court to clarify the
evidence on the issues and will assist in rendering justice,
and the court is satisfied that non-production earlier was for
valid and sufficient reasons, the court may exercise its
discretion to recall the witnesses or permit the fresh
evidence. In Vadiraj Naggappa Vernekar (supra), it was
held that the main purpose of the Order 18 Rule 17 of C.P.C.
is to enable the court, while trying a suit, to clarify any
doubts which it may have with regard to the evidence led by
the plaintiffs and the said provisions are not intended to be
used to fill up the omissions in the evidence of a witness who
has already been examined. There is no dispute with regard
to the said legal propositions.
5. As stated already, the definite case of the plaintiff is
that the defendants while working as assistant manager,
showroom manager and supervisor in the plaintiff company
during the period from 23.06.2005 to 11.05.2013
misappropriated a sum of Rs.15,52,500/-(Rupees fifteen lakh
fifty two thousand and five hundred only). In the written
statement filed by the defendants 1 to 3 they contended
that they never worked as assistant manager, showroom
manager and supervisor respectively in the plaintiff's firm
during the alleged period and they never verified or
participated in the stock verification. The document now
sought to be produced is the original of the register of wage
extract for the disputed period. This document was
confronted to DW2 when he was in dock. In fact, he
admitted certain entries in the said documents. However,
he disputed his signature as well as the signature of the
remaining defendants. Since the issue involved in the case is
whether the defendants 1 to 3 had misappropriated amount
while they were working in various capacity in the plaintiff's
firm, the document which would show that the defendants
were working in the plaintiff's firm during the relevant period
is, no doubt, a material document. The learned counsel for
the petitioner submitted that the respondents could have
produced the document earlier or along with the plaint. The
defendants or a party to the suit has every right to confront
a document to a witness while he is in the dock. The
document not sought to be produced is a document which is
confronted to DW2 while he was in the dock. Though he
admitted certain entries regarding the names and
designations of the defendants 1 to 3 in the said document,
he denied the signatures. Hence, the plaintiff felt it
necessary to produce the document before the court. It is
not a case where the document now sought to be produced
is to fill up the lacuna in the evidence. That apart, the trial
court rightly found that the said document is necessary for
the just decision in the case. I see no illegality or
impropriety in the impugned order.
Accordingly, this original petition is dismissed.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
BR
APPENDIX OF OP(C) 471/2024
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE PLAINT IN O.S.18/2015
DATED 09.01.2015
Exhibit P2 TRUE COPY OF THE JOINT WRITTEN STATEMENT
FILED BY THE DEFENDANTS 1 AND 2 IN
O.S.NO.18/2015 DATED 18.06.2015
Exhibit P3 TRUE COPY OF THE ADDITIONAL WRITTEN
STATEMENT DATED 05.12.2017 FILED BY THE
2ND DEFENDANT
Exhibit P4 TRUE COPY OF I.ANO.1263/2019 DATED
20.03.2019 FILED IN O.S.NO.18/2015
Exhibit P5 TRUE COPY OF THE REGISTER OF WAGES FROM
01.12.2012 TO 31.12.2012 ALONG WITH
ADDITIONAL LI.ST OF DOCUMENTS DATED
20.12.2019 IS PRODUCED ALONG WITH
EXHIBIT P5
Exhibit P6 TRUE COPY OF THE COUNTER AFFIDAVIT FILED
BY THE PETITIONER DATED 04.04.2019 TO
EXHIBIT P4 PETITION
Exhibit P7 TRUE COPY OF THE ADDITIONAL COUNTER
AFFIDAVIT FILED BY THE PETITIONER DATED
20.07.2023
Exhibit P8 TRUE COPY OF THE ORDER OF THE SECOND
ADDITIONAL SUB COURT IN EXHIBIT P4
APPLICATION DATED 23.01.2024
Exhibit P9 TRUE COPY OF DEPOSITION OF PW1 IN
EXHIBIT P1 SUIT INCLUDING HIS PROOF
AFFIDAVIT DATED 06.03.2019
Exhibit P10 TRUE COPY OF THE DEPOSITION OF DW2 IN
EXHIBIT P1 SUIT ALONG WITH PROOF
AFFIDAVIT DATED 18.03.2019
RESPONDENT'S EXHIBITS: NIL
