M U PRABHAN Vs. RATNAVALLAY

JUDGEMENT

(1.) Ext. P3 common order, passed by the Principal Subordinate Judge, Ernakulam in IA Nos. 5296 and 5300 of 2005, is under challenge in this Writ Petition initiated by defendants 3 to 5 in the suit which is one for partition and separate possession of their shares in the plaint schedule property since they along with the petitioners are legal heirs of their parents including Smt. Karthiyani, mother, who was the owner of the plaint B schedule property. The petitioners resisted the suit contending that Smt. Karthiyani had executed a Will on 16/02/1993 bequeathing her rights over the properties in favour of the petitioners. It was accordingly contended that, the properties covered by the Will are not available for partition.

(2.) After the filing of the written statement, respondents 1 to 4 and others fled a fresh suit OS No. 56 of 2004 seeking for a declaration that the Will relied on by them is void and not binding on the plaintiffs and also for consequential injunction. Learned Subordinate Judge ordered joint trial. The 2nd plaintiff in OS No. 244 of 2003 was examined on commission as PW 1. Another witness on the side of the plaintiff was PW 2. One more witness is to be examined on the side of the plaintiff. At that juncture counsel who was appearing for the petitioner relinquished the vakalath and the petitioner became obliged to engage another counsel. The fresh counsel so engaged, on going through the records found that certain vital points were omitted to be asked during the cross examination of PW 1. Accordingly, IA No. 5296 of 2005 for recalling PW 1 and allowing further examination of PW 1 was examined. Ext. P1 is copy of IA No. 5296 of 2005. IA No. 5300 of 2005 was also filed for removing the case from the special list so as to enable the fresh counsel to study the brief. Ext. P2 is copy of that IA. The learned Subordinate Judge dismissed Ext. P1 IA mainly on the ground that O.XVIII R.17 invoked by the petitioners was not an enabling provision allowing parties in the suit to recall and examine the witness already examined and also on the reason that the fresh counsel was not willing to divulge to the Court the aspects which had been omitted to be cross examined. IA No. 5300 of 2005 was dismissed on the reason that the counsel has, obviously, by that time obtained enough time for preparing the brief.

(3.) I have heard the submissions of Sri. P. Suresh, learned counsel for the petitioners and also those of Sri. Dinesh R. Shenoy, counsel for the contesting respondents. Sri. Suresh took me through the full text of the impugned order and would highlight the discussions of the learned Subordinate Judge insofar as they pertain to IA No. 5296 of 2005. On reading between the fines in the order, it is clear to my mind that the learned Subordinate Judge was to a certain extent provoked by the attitude of the learned counsel that he was not in a position to divulge the questions which are intended to be asked in cross examination, once the witness was recalled. Mr. Suresh's submission before me was that in the nature of the issues which were being tried, questions necessarily had to be asked regarding the testamentary capacity of the testator, Smt. Karthyani, which was very much under challenge by the respondents - plaintiffs. Counsel submitted that it may became necessary to confront the witness with certain documents which may show that the case of the respondents that the testator was completely bed ridden and hence incapacitated from executing the Will is absolutely incorrect. The witness sought to be recalled was intelligent enough to discern the purport of all questions if divulged in the open court. This was why Mr. Suresh was diffident to divulge even to the learned Judge in the presence of the witness and his counsel as to the nature of the questions which he proposed to put to the witness. According to Mr. Suresh, divulging the questions in advance would defeat the purpose of the questions. Mr. Suresh would fairly concede before me that O.XVIII R.17 CPC was not the proper provision governing the situation on hand and that the view of the teamed Subordinate Judge in that regard expressed in the order is correct. Mr. Suresh submitted that the inherent powers of the Court which are seen saved as per S.151 are intended for providing or rendering justice in circumstances not specifically provided for by the Code. My attention was drawn by Mr. Suresh to judgment of this Court in Savithri v. Sreenivasan, 1987 (2) KLT 388 [ 1987 KHC 471 : 1987 KLJ 1001 : 1987 KLN 555]. This was a fit case in the learned counsel's opinion where the application, IA No. 5296 of 2005 should have been allowed, even if it be by imposing terms for the inconvenience caused to the Court and to the opposite side.