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Judges : S.SANKARASUBBAN
Raveendran - Appellant
Versus
Ramakrishnan Nambiar - Respondent
Case No : C.R.P.No.3029 of 2001
Decided On : 12/06/2001
Advocates Appeared :
N.L. Krishnamoorthy & R. Surendran For Petitioner O. Ramachandran Nambiar & Bindumol Joseph For Respondent
Evidence Act –Sections 118 and 135 – Code of Civil Procedure –Order 18 Rule 1, 2 and 3A – Issue to reopen the case for evidence –Learned counsel for the petitioner submitted that in the written statement filed by the defendant he did not deny the signatures in the document – On the other hand, his case was that the plaintiff and defendant were friends and plaintiff used to visit the room where the defendant was staying – Defendant used to keep signed cheque in his drawyer in the room – It was for the first time that he denied his signature when he was examined – Counsel submitted that when the case was earlier posted in the list, the plaintiff had come all the way from Bahrain – But at that time, the case was removed from the list – Learned counsel for the petitioner submitted that the court has always jurisdiction to reopen the case for evidence – Held, After going through the entire matter, Court is of the view that it is a case where the court should have allowed the application for examining the plaintiff – The fact that he appeared earlier when the case was listed is not denied – The court should also take note of the difficulties experienced by the litigants, especially, those, who are employed in foreign countries to come and give evidence –Hence, Court allow the petition to give an opportunity to the plaintiff to come and give evidence –Court is of the view that the petition for expert evidence can be considered after the closure of the evidence of the plaintiff – Hence, court set aside the impugned orders and remit the matter to the court below –Civil Revision Petition disposed of
S. Sankarasubban, J.
This Civil Revision Petition is filed by the plaintiff in O.S. No. 118 of 1999 on the file of the Additional Sub Judge, Thalassery. The suit was filed by him for realisation of a sum of Rs. 20,79,953/- with interest from the date of the suit till realisation. According to the plaintiff, the amount was due from the defendant as per a cheque for Rs. 20,00,000/-, which was dishonoured for insufficient funds in the account of the defendant.
2. The plaintiff and the defendant are non-resident Indians working at Manama in Baharin. The original transaction between the plaintiff and the defendant took place at Baharin from where the defendant owed a sum equivalent to Indian Rs.20,00,000/- and issued the cheque payable at Vijaya Bank, Edakkad Branch within the jurisdiction of the Sub Court, Thalassery.
3. The defendant entered appearance and filed written statement denying the transactions. He admitted that the plaintiff and the defendant were friends and he contended that he used to keep signed cheques in his drawer in the room and he suspects that the plaintiff has fraudulently removed some cheques and utilised the same for creating false documents in his favour. He also stated in the written statement that he is not in a position to say whether the signature in the cheque is his or not.
4. On the basis of the contentions, five issues were raised. Since the plaintiff was at Baharin, the suit was filed through his power of attorney holder. According to the plaintiff, the suit was listed for trial on 2.1.2001. On that day, the plaintiff had come to India for the purpose of adducing evidence. But in the meantime, the defendant filed LA. No. 4281 of 2000 for issue of a commission for the purpose of assessing the value of the plaint schedule property. Hence, the suit was not taken up for trial on 2.1.2001 and it was removed from the list. Subsequently, LA. No. 4281 of 2000 was allowed and commission wasissued. Thereafter, the Commissioner filed his report. By that time, the plaintiff went abroad again to join his employment. According to the plaintiff, he was under the impression that he can come when the suit is listed again.
5. The suit was again listed on 1.11.2001 for trial. Since the plaintiff could not get leave from his employer at Baharin, he sent the additional documents to his power of attorney holder and filed in the court through him. The documents were received by the court below. Since the plaintiff could not come to the court on 1.11.2001, the power of attorney holder was examined as PW1 and marked Exts. Al to All. He was cross examined on 2.11.2001. The Manager, Vijaya Bank, Edakkad was examined as PW2 and Ext. XI was produced and marked. Since the petitioner was not able to come to the court on that day, a request was made to the court for granting time to get the revision petitioner himself examined. This is because the power of attorney holder was not able to give evidence relating to the transactions took place at Baharin. In the meantime the revision petitioner was making efforts to get leave from his employer to come to India. The court below rejected the request and closed the evidence of the plaintiff and adjourned the case to 6.11.2001 for the purpose of defendant's evidence.
6. According to the plaintiff, the defendant admitted that Ext. A2 cheque contained his signature and Ext. Al 1 agreement contained his signature and thump impression. According to the petitioner, it was for the first time in evidence that the defendant denied his signature. He also stated that he does not have any objection in subjecting the disputed signatures and thump impression contained in Exts. A2 and All to an examination by an expert.
7. After the evidence of the defendant, a petition was filed by the plaintiff as LA. No. 3258 of 2001 to obtain the signatures and thump impression of the defendant and send the same along with Exts. A2 and All to an expert for getting an opinion regarding the genuineness of th
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