MOHAMMED ALI Vs. SAIDALAVI AND ORS.

JUDGEMENT

(1.) The petitioner herein is the 2nd defendant and 1st respondent herein is the plaintiff in O.S.No.120/2006 on the file of the Subordinate Judge's Court, Tirur, filed by the 1st respondent herein/plaintiff. The respondents 2 to 5 herein are defendants 1, 3, 5 and 4 in the suit. The suit is one for redemption of mortgage. Petitioner's challenge in this Original Petition is directed against Ext.P-8 order dated 6.8.2016 whereby the plea made by the plaintiff/1st respondent to re-open the evidence of DWs 2 and 3 for adducing evidence has been allowed by the court below.

(2.) Heard Sri.Jamsheed Hafiz, learned counsel for the petitioner/D-2, Sri.Muhammed Faizal Naha, learned counsel appearing for the 1st respondent/plaintiff and Sri.K.P.Sudheer, learned counsel appearing for R-3. R-2 has been deleted from the party array as he is no more. Though the other respondents have been duly served, they have not entered appearance.

(3.) After the tendering of the evidence of the plaintiff, the defendants had adduced their evidence through DW-2, petitioner (D- 2), D-4 and D-5 herein. During the cross-examination of DWs 2 and 3, a specific question was asked to each one of them as to whether D-2 is closely related to D-4. Both the DW-2 and DW-3 had denied the said suggestion made by the learned counsel for the plaintiff. Evidence of the defence was closed on 25.7.2016. Thereafter, the case was posted for hearing on 3.8.2016. On that day (3.8.2016) the 1st respondent/plaintiff has filed Exts.P-4 and P-5 I.As seeking orders from the court below to reopen the evidence and to recall DWs 2 and 3. The main ground urged in Exts.P-4 and P5 applications is that only then the plaintiff could collect certain details as to the actual relationship of D-2, D-4 and D-5 and that it is highly necessary to adduce additional evidence so as to confront DWs 2 and 3 with those materials in order to disprove the denial of relationship between them. The said plea made by the plaintiff as per Exts.P-4 and P-5 was allowed as per Ext.P-8 order. The court below has accepted the contention of the plaintiff that he came to know about the actual relationship of defendants 2 and 4 only after their examination and therefore the evidence should be re-opened to elicit those facts. The plaintiff has specifically pleaded in the plaint that D-2 and D-4 are closely related and further that D-5 happened to be the son of D-2. In the written statement filed by D-2 it is clearly stated that D-4 is the son of D-2. The specific question asked by the learned counsel for the plaintiff to DW-2 (D-2) and DW-3 (D-4) is as to whether they are closely related. Each one of them has specifically denied the alleged close relationship between them. The plaintiff would contend that he could collect the details regarding the close relationship as to D-2 and D-4 only after examination of DW-2 and DW-3 and therefore in the interest of justice re-opening of the evidence of DW-2 and DW-3 is necessary to elicit those facts. Even if the above said case of the plaintiff is accepted that he could secure knowledge about the actual relationship between D-2 and D-4 only after cross-examination of those defence witnesses, even then it is to be noted that it was an aspect which the plaintiff should have diligently taken note of at the time of cross-examination of DWs 2 and 3 and should have confronted the witnesses with those aspects and failure to collect requisite details about the alleged relationship between D-2 and D-4 is an omission on his part and the omission in that regard can only be held to be a lacuna on the part of the plaintiff in confronting the defence witness in this crucial aspects. Since the said aspect is a lacuna, it is not right and proper for re-opening the evidence and recall the evidence for it would have been done so, it would have the effect of permitting the plaintiff to fill up the lacuna on his part. Yet another ground urged by the plaintiff in Exts.P- 5 and P-6 application is to the effect that he could came to know that D-4 is the son of D-2 only after the examination of DWs 2 and 3. This appears to be a plainly untenable contention because D-2 has clearly admitted in his written statement that D-4 is his son. Therefore, the ground in that regard urged by the plaintiff to justify his plea for recall of witness is also plainly untenable. However, there is one important aspect of the matter. It is the case of the plaintiff that he could secure proper knowledge about the relationship between D-2 and D-4 only after their examination. If that be so, it is for the plaintiff to move an appropriate application before the court below pointing out those aspects and to seek additional evidence to prove the alleged close relationship between the D-2 and D-4, in a manner known to law. If such an application is filed by the petitioners, then the same would be considered by the court below in accordance with law. If such an application is filed, necessary orders should be passed by the court below without much delay, preferably, within a period of 10 days from the date of such application. It is only to be held that the present impugned Ext.P-8 order deserves to be interdicted by this Court. Accordingly, it is ordered that Ext.P-8 order will stand set aside. Correspondingly it is ordered that Exts.P-5 and P-6 will stand dismissed. With these observations and directions, the aforecaptioned Original Petition (Civil) will stand finally disposed of with the above said liberty.