IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 24^TH DAY OF MAY 2024 / 3RD JYAISHTA, 1946 OP(C) NO. 851 OF 2024 AGAINST THE ORDER DATED 23.03.2024 IN IA NOS.13 & 14 OF 24 IN OS NO.159 OF 2016 OF MUNSIFF COURT, VAIKOM IN OS NO.159 OF 2016 OF MUNSIFF COURT, VAIKOM PETITIONER/DEFENDANT NO.1:

SHINOJ XAVIER, AGED 41 YEARS PANIKKASSERY HOUSE, PONJASSERY PO, VENGOLA VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT, PIN - 683556 BY ADVS.ELDHO ALIAS REVATHY K. KAPPIL RESPONDENTS/PLAINTIFF & DEFENDANT NO.2:

1 SHERY V VAKKACHAN, AGED 42 YEARS VATTATHARA MUNDADAN HOUSE, POONITHARA KARA, POONITHARA VILLAGE, KANAYNNOOR TALUK, ERNAKULAM DISTRICT, PIN - 682308

2 UMESH, S/O KRISHNANKUTTY, AMMAPARAMBIL HOUSE, PAYYAL KARA, ASHAMANNOOR VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT, PIN - 683549 BY ADVS.C.S.MANILAL S.NIDHEESH(K/1061/2007)

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON

24.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

J U D G M E N T

Ext.P11 common order passed by the Munsiff Court, Vaikom is under challenge in this original petition.

2. The petitioner is the 1^st defendant. The respondents are the plaintiff and the 2^nd defendant. The plaintiff instituted a suit to declare a document as null and void and to set aside the said document. The parties went on trial. During the cross examination of the petitioner/1^st defendant who was examined as DW1, a statement given by him to the investigating officer in Crime No.866/2016 of Thalayolaparambu Police Station was confronted to him. But he denied the said document and deposed that it was forged by police. He also deposed that the crime was referred by the police. Thereafter, the plaintiff filed I.A.No.13/24 to reopen the evidence and I.A.No.14/24 to issue summons to the CPO who recorded the statement of DW1 and to the SHO of the police station concerned to produce the statement given by DW1. The trial court, after hearing both sides allowed both the applications as per Ext.P11. It is challenging the said order, this original petition has been filed.

3. I have heard Sri. Eldho Alias, the learned counsel for the petitioner and Sri. C.S. Manilal, the learned counsel for the 1^st respondent.

4. The learned counsel for the petitioner submitted that the document sought to be summoned is hit by Section 162 of Cr.P.C and Section 25 of the Indian Evidence Act and hence it may not be summoned. The suit is one to set aside sale deed No.119/2016 and also to declare it as null and void. It is not in dispute that Crime No. 866/2016 of Thalayolaparambu Police Station was registered in connection with the transfer of property involved in the suit. When a specific question was put to DW1 while was in the box regarding a statement given by him in the said crime with respect to the transaction involved in the suit, he denied it. Hence, the plaintiff has every right to summon the said document to prove the fact that DW1 has given the statement. The evidenciary value of the said document can be decided by the trial court. The plaintiff cannot be denied an opportunity to bring the said evidence before the trial court. The trial court has rightly allowed the above applications.

I find no illegality or impropriety in the impugned order.

The original petition is dismissed.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE kp APPENDIX OF OP(C) 851/2024 PETITIONER EXHIBITS ExhibitP1 A TRUE COPY OF THE AMENDED PLAINT DATED NIL FILED BY THE FIRST RESPONDENT AS OS NO. 159/2016 ON THE FILE OF MUNSIFF COURT, VAIKOM ExhibitP2 A TRUE COPY OF THE WRITTEN STATEMENTS FILED BY PETITIONER IN OS NO. 159/2016 DATED 27/07/2016 ExhibitP3 A TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENTS FILED BY PETITIONER IN OS NO.

159/2016 DATED 14/07/2023 ExhibitP4 . A TRUE COPY OF THE FIR NO. 866/2016 OF THALAYOLAPARAMB POLICE STATION DATED

01/07/2016 ExhibitP5 A TRUE COPY OF THE UNDETECTED REFER CHARGE OF FIR NO. 866/2016 OF THALAYOLAPARAMB POLICE STATION DATED

03/12/2021 ExhibitP6 A TRUE COPY OF I. A. NO. 1