High Road Kuries Pvt. Ltd. vs V.G. Surendran

Thomas P. Joseph, J.—This writ petition is in challenge of Exts.P10 and P11 orders passed by learned Principal Munsiff, Thrissur on I.A. Nos. 11188/2009 & 11190/2009 in O.S. No. 1471/2008. That is a suit filed by the petitioner, a Private Limited Company represented by its Chairman for recovery of money allegedly due from respondent as per Kuri transactions. Respondent/defendant No. 1 contended that he has discharged the entire liability and no further amount is due. Respondent/defendant No. 1 adduced evidence and he was examined as DW.1. He claimed that he has furnished cash security for 32 Kuries run by petitioner and which were adjusted in the liability under the Kuri in question. When he was confronted with a letter allegedly written by him, he denied the signature. Petitioner filed a list of documents to prove among other things that it had lien over 9 kuries. Then came applications from the respondent to re-open his evidence and to summon Deputy Chairman and Accountant of petitioner. Those applications were opposed by petitioner stating that Deputy Chairman has nothing to do with the matter; her examination is not necessary; there is no Accountant by the name stated in the witness list of respondent and that even in the written statement, there is no specific contention as to the manner of discharge of liability. Learned Munsiff however, allowed the application, though not by a detailed order, stating that considering the nature and circumstances and in interest of justice applications are allowed. Those orders are under challenge in this writ petition.

Learned Counsel for petitioner has once again asserted the contentions of petitioner as stated above. According to the learned Counsel, respondent cannot examine Deputy Chairman of petitioner Company since a party has no right to summon opposite party as witness.

It is not as if the Court is powerless to permit a party to examine even an opposite party to the proceedings, if circumstances did warrant to such a course. Here petitioner/plaintiff is a private limited company represented by its Chairman while the witness sought to be examined by the respondent is Deputy Chairman of that company. It is not as if respondent is summoning the opposite party as his witness.

Then the next question is whether examination of Deputy Chairman is necessary to prove the contention raised by respondent. May be he has not stated in the written statement any detail as to in what way he discharged liability but he has a contention in that way and in his evidence as DW.1, he has stated in what way he discharged the liability. That evidence of respondent is sought to be controverted by petitioner by contending that it had a lien over nine kuries joined by respondent and it is to prove that contention that various documents are produced by petitioner. It is in that circumstance that respondent who was directed to lead evidence first, in view of the plea of discharge, wanted the case to be re-opened for his evidence and to summon the Deputy Chairman and Accountant as witnesses. Court below after consideration of materials found that interest of justice required re-opening of the case for respondent to adduce further evidence and to summon witnesses he requested for. On the facts and circumstances of the case and so far it is not shown to be illegal, there is no reason for this Court to interfere with the power exercised by the learned Munsiff. Question whether Deputy Chairman summoned by respondent will be able to give evidence as expected by the respondent is a different matter. Yet another objection is that there is no such Accountant in the name stated in the list furnished by respondent. That also is not a matter which this Court has to consider under Article 227 of Constitution of India. For, I find from the materials placed before me that respondent wanted to examine the Accountant cum Clerk of petitioner and described him by name ''Soji''. If there is no such person by name Soji, it is open to respondent to give the correct name of the Accountant cum Clerk he wants to examine as his witness. These are not matters which this Court has to consider under Article 227 of Constitution of India.

In the light of what I have stated above the writ petition does not merit consideration. Resultantly the writ petition is dismissed.