ISA ATHUL ULOOM SANGHAM Vs. ODAKKAL ABDULLAKUTTY MUSLIAR

JUDGEMENT

(1.) This C.R.P. is filed against the order in I. A. 247/98 in O.S. 292/97 of the Munsiff's Court, Tirur. Petitioners 1 to 3 are defendants 1 to 3 in O.S. 292/97 of the Munsiff's Court, Tirur and the 4th petitioner is the witness No. 2 in the proceedings in I.A. 247/ 98. The respondent is the plaintiff. The first defendant is a society registered under the provisions of the Societies Registration Act, second and third defendants are the President and Secretary of the Society respectively. According to plaintiff, he is the Khasi and Muthavalli of Mattathoor Valiya Juma-at-Mosque in Malappuram District. The defendants in the suit have disputed his right to continue as Khasi and Muthavalli and they are interfering with the management of the Mosque. Hence the suit was filed for a declaration that he is the Khasi and Muthavalli of the Mosque and he alone is entitled to manage the affairs of the Mosque and the defendants are not entitled to interfere with his functions as Khasi and Muthavalli. According to defendants, the plaintiff is not the Khasi and Muthavalli. The management of the affairs of the mosque is being done by the first defendant. The plaintiff had been removed from the Khasi ship. There was a proceeding before the Wakf Board and the Wakf Board removed the plaintiff from the Muthavalli ship. The plaintiff filed LA. 2450/97 under O.16 R.6 of the CPC for a direction to a witness by name Konari Kunhi Mohamed, who is the 4th petitioner to produce his passport before the Trial Court. According to plaintiff, the minutes produced by the defendants in the suit will show that the 4th petitioner had attended the meeting of the Society and signed the minutes in 1997 July and August. But the plaintiff contended that during that time the 4th petitioner was not available in India and his signature was concocted. For proving that Konari Kunhi Mohamed was not available in India and the minutes were concocted, he filed I. A. 2450/97 calling upon the said Kunhi Mohamed to produce his passport. Summons was issued to the 4th petitioner. The 4th petitioner in pursuance of the summons, appeared before the Court through counsel and filed an affidavit stating that his passport was not available with him and it was sent to Mumbai for making necessary endorsements for getting visa. On 24.2.98 the Court passed an order directing the witness to file an additional affidavit stating whether he was available in India either on 25.7.97 or on 1.8.97. Thereafter the case was posted to 13.3.98. Subsequently since the 4th petitioner was not present, the court below has passed an order by which non bailable warrant was issued against the 4th petitioner. It is attacking the above order, the revision petition is filed.

(2.) Learned Senior Counsel Sri. C.S. Ananthakrishna Iyer appearing for the petitioners submitted that the 4th petitioner was directed to produce the passport. Thus he was a witness to produce some document. Learned counsel submitted that 4th petitioner filed an affidavit stating that passport was not in his possession and that it was in the travel agent in Mumbai. Counsel submitted that when this affidavit was filed before the Court the purpose for which the 4th petitioner was summoned was achieved. If the Court was not satisfied with the affidavit filed by the 4th petitioner, then the Court could have directed the 4th petitioner to file another affidavit with regard to the passport. But in this case what happened was that when the witness filed an affidavit stating that the passport was not in his possession, counsel for the plaintiff wanted the Court to direct the witness to file an affidavit to show whether he was available in Kerala on certain particular days. Since the witness did not file such an affidavit, now warrant has been issued. Counsel submits that the procedure adopted by the Court below is illegal. The court has no power to direct the witness to file an affidavit. If the plaintiff wanted to give further evidence to show that witness was not present in Kerala, 4th petitioner should have been cited as witness to give oral evidence. A witness cannot be compelled to file an affidavit unless the parties agreed.

(3.) Learned counsel for the respondents submitted that even when the original summons was issued, 4th petitioner did not appear. It was only after a proclamation was issued that he appeared. He further submitted that there was nothing wrong in the court below in directing the 4th petitioner to file an affidavit. He further submitted that against the order directing the 4th petitioner to file an affidavit, C.R.P. No. 503/98 was filed before this Court. But that was dismissed inlimine.