The court upheld the principle that all potentially relevant evidence should be admissible to ensure fair trial rights in civil proceedings.

JUDGMENT

Aggrieved by Ext.P5 order passed by the Court of the Subordinate Judge, Kozhikode in I.A. No.12/2022 in O.S. No.158/2020, the defendants in the suit have filed the original petition. The respondent is the plaintiff in the suit.

2. The facts leading to Ext.P5 order, in a narrow compass, are: the respondent has filed the suit for a decree for specific performance with an alternative relief for return of advance sale consideration. The petitioners have contested the suit through Ext.P2 written statement. The respondent is relying on an agreement of sale dated 18.09.2020, which is disputed by the petitioners. The petitioners have got information that an agreement was executed between the petitioners’ brother Ratnakaran and a lady named Fousiya on 12.03.2016. Consequently, the petitioners filed I.A No.9/2022 to summon Fousiya with the original agreement executed with Ratnakaran. Even though Fousiya appeared before the court below, and was examined as DW3, she deposed that the original of the agreement is produced before the Judicial First Class Magistrate Court, Kozhikode in Crime No.1089/2020. Although the petitioners attempted to mark a copy of the agreement, the same was objected to by the counsel for the respondent. In the said situation, the petitioners filed I.A. No.12/2022 (Ext.P4) to summon the agreement from the Magistrate Court in crime No.1089/2020. But, the court below, by the impugned Ext.P5 order, dismissed Ext.P4 application. Ext.P5 is erroneous and wrong. Hence, the original petition.

3. Heard; Sri.M.K.Sumod, the learned counsel appearing for the petitioners and Sri.Sharan Shahier, the learned counsel appearing for the respondent.

4. The question is whether there is any illegality in Ext.P5 order.

5. The court below after considering Ext.P4 application passed the following order:- “ 6. The issue before the court is about the specific performance of Ext.P2 agreement. The above said Fousia has been examined as DW3 before this court. Ratnakaran or Fousia are not parties to the present suit. How the above document will help the court in resolving the issue was not stated in the affidavit. No specific reason is stated in the petition as to the relevancy of above document in the present suit.

7. As rightly pointed out by the counsel for the plaintiff the attempt of the defendant is to bring evidence about the market value of the property. But the market value of the property is not an issue before the court. The evidence of DW3 indicates that her evidence or the agreement between DW3 and Ratnakaran was not relevant to the present dispute involved in this case. Therefore, without establishing the relevancy of the above document the petitioner cannot be permitted to call for the above document.

Hence, this petition is dismissed.”

6. On a reading of the above order, it can be seen that the court below has delved into the merits of the application and decided regarding the relevancy of the document sought to be summoned. I find the course adopted by the court below was improper because it is not for the courts to anticipate what a party proposes to prove through a witness or a document. If such a rigid procedure is adopted, it would amount to pre-emptorly fore closing the right of a party to the suit from establishing his case. Furthermore, the petitioners had summoned Fousiya and asked her to produce the document. The court below had allowed the application. It was only due to resistance/opposition of the respondent that the copy of the agreement could not be marked. So, now, there is no meaning to hold that the original of the document need not be summoned on the ground of irrelevancy. In the above matrix, I am of the firm view that the petitioners should be given an opportunity to produce the document and mark the same through DW3. Nevertheless, as the document is produced before the jurisdictional Magistrate, I am of the view that the petitioners have to obtain a certified copy of the document from the Magistrate Court