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2014 DIGILAW 1032 (KER)

Shylaja v. Reshma Satheesan

2014-12-11

K.ABRAHAM MATHEW

body2014
Judgment : 1. Defendants 11, 12 and 13 in O.S.No.539 of 2006 on the file of the Additional Munsiff-II, Kozhikode are the appellants. The suit was for partition. The 10th defendant remained ex parte. After trial the suit was dismissed. In the appeal, A.S.No.111 of 2010, filed by the plaintiff the learned Additional District Judge allowed I.A.No.2418 of 2012 filed by the 10th defendant to receive her written statement and he set aside the judgment and decree and remanded the suit for fresh disposal. The trial court has been directed to give opportunity to both sides to adduce further evidence. This order of remand is challenged in this appeal. 2. The plaint schedule property belonged to one Sankaran. Defendants 1 to 5 are his children. Defendants 6 and 9 are the children of his deceased son Sreedharan. Sankaran had another son by name Ramachandran. In the plaint it is stated that he married the 10th defendant and the plaintiff is their daughter. It is further stated in the plaint that the 11th defendant is the second wife of Ramachandran and defendants 12 and 13 are their children. According to the plaintiff, she and her mother, 10th defendant along with defendants 12 and 13 are entitled to the share Ramachandran was entitled to in the plaint schedule property; and the 11th defendant is not. 3. The 10th defendant who is said to be the first wife of Ramachandran and mother of the plaintiff did not file written statement. The trial court found that the evidence of the plaintiff is not sufficient to prove the marriage between Ramachandran and the 10th defendant, which is the reason why it dismissed the suit. The trial court observed that the witnesses examined by the plaintiff to prove the marriage are interested witnesses and their evidence is not acceptable. The failure of the 10th defendant to enter the witness box was found to be fatal by the trial court. The learned District Judge is of the view that the trial court should have invoked the provisions in Order 16 Rule 14 CPC to examine the 10th defendant. As mentioned earlier, he allowed I.A.No.2418 of 2012 filed by the 10th defendant to receive her written statement and consequently it remanded the case. 4. The learned District Judge is of the view that the trial court should have invoked the provisions in Order 16 Rule 14 CPC to examine the 10th defendant. As mentioned earlier, he allowed I.A.No.2418 of 2012 filed by the 10th defendant to receive her written statement and consequently it remanded the case. 4. Order 16 Rule 14 CPC provides that where the court thinks it necessary to examine any person, including a party to the suit, and not called as a witness by a party to the suit, the court may, of its own motion, cause such person to be summoned as a witness to give evidence. 5. In R.M. Sheshadri v. Vasanth Pai ( AIR 1969 SC 692 ) the Supreme Court examined the powers of the court under the above provision. It has said: “ In the absence of any prohibition contained in the law the court has the power to summon a court witness if it thinks fit that the ends of justice require or that the case before it needs the kind of evidence.” In Hussainkhan v. S.Nejalingappa ( AIR 1969 SC 1034 ) the Apex Court took the view that if there is a sufficient evidence to take a decision in the matter, it is not proper for the court to examine a person as a court witness. This is what the court has observed: “In the present case, as we shall presently show, there was plenty of circumstantial evidence indicating that the version put forward on behalf of the appellants could not be true and the High Court could justifiably take the view that it had not been proved to its satisfaction, so that there was no compelling reason for the High Court to examine Patil Puttappa as a court witness or even to draw any inference against respondent No.1 for his failure to examine Patil Puttappa as a witness.” I shall now examine whether justice demanded examination of the 10th defendant as a court witness and whether the facts of the case required her evidence to reach the right conclusion. 6. To give instructions to the advocate the 10th defendant went to his office along with the plaintiff. The plaintiff did not read the written statement of defendants 11 to 13 or peruse the documents produced by them. She did not know the contentions in their written statement. 6. To give instructions to the advocate the 10th defendant went to his office along with the plaintiff. The plaintiff did not read the written statement of defendants 11 to 13 or peruse the documents produced by them. She did not know the contentions in their written statement. It was the 10th defendant who obtained all the documents produced by the plaintiff in the case and brought the plaintiff's witnesses to the court. The 10th defendant came to the court everyday. She was present in the court premises during the trial. These are facts brought out in the cross-examination of the plaintiff, who was examined as PW1. There is no doubt that the 10th defendant is the real plaintiff in the case. It was she who was conducting the litigation in the name of the plaintiff. 7. Order 16 Rule 14 CPC which is only an enabling provision is not intended to help a plaintiff who conducts litigation on behalf of a defendant who deliberately refuses to enter the witness box. The object of the provision is not to help a party who sitting behind the curtain conducts the litigation on behalf of another party who is arrayed on the opposite side. In this case the evidence adduced on either side is sufficient to decide the relevant issue. It is not in the interest of justice to examine the 10th defendant as a court witness. The observation of the learned District Judge that the learned Munsiff should have invoked the provisions in Order 16 Rule 14 CPC is not at all justified. 8. The propriety of the appellate court's allowing the application filed by the 10th defendant in that court to receive her written statement is also under attack. The answer to a simple question is sufficient to take a decision in this matter. What would have been the result if the 10th defendant had filed an application to set aside the decree passed against her. I have discussed the facts which have compelled me to take the view that the 10th defendant was the real plaintiff and she was prosecuting the suit in the name of her daughter. It is clear that if she had filed an application to set aside the decree against her, it could not have been allowed. By receiving the written statement filed by her the appellate court has done injustice to the contesting defendants. It is clear that if she had filed an application to set aside the decree against her, it could not have been allowed. By receiving the written statement filed by her the appellate court has done injustice to the contesting defendants. 9. For the reasons stated above, the order of remand passed by the learned District Judge is liable to be set aside. In the result, this appeal is allowed and the impugned judgment is set aside. The learned District Judge shall take back the appeal and dispose it of on merits.