2025:KER:26131 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K. BABU WEDNESDAY, THE 26TH DAY OF MARCH 2025 / 5TH CHAITHRA, 1947 OP(C) NO. 1967 OF 2022 AGAINST THE ORDER DATED 03.09.32022 IN OS NO.162 OF 2006 OF ASSISTANT SESSIONS COURT/SUB COURT/COMMERCIAL COURT,NEYYATTINKARA PETITIONER: SREEKALA AGED 53 YEARS, D/O VIJAYAMMA,AYILAM, JANARDHANAPURAM DESOM, VARKALA VILLAGE,CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM., PIN - 695304 BY ADVS. V.G.ARUN (K/795/2004) V.JAYA RAGI R.HARIKRISHNAN (KAMBISSERIL) NEERAJ NARAYAN AVANEETH S.R. RESPONDENTS: 1 HOTEL BLUE SEA KOVALAM, VIZHINJAM VILLAGE,THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING PARTNERS 2ND AND 3RD DEFENDANTS., PIN - 695521 2 SABU AGED 58 YEARS, S/O DAMODARA PANICKER, MANAGING PARTNER, HOTEL BLUE SEA, KOVALAM, THIRUVANANTHAPURAM, PIN - 695527 3 SAJI AGED 56 YEARS, S/O DAMODARA PANICKER, MANAGING PARTNER, HOTEL BLUE SEA, KOVALAM, THIRUVANANTHAPURAM, PIN - 695527 BY ADV THIRUMALA P K MANI P K THIS OP (CIVIL) HAVING COME UP FOR FINAL HEARING ON 26.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 1967 OF 2022 2025:KER:26131 2 K.BABU, J. ------------------------------------------------------- O.P (C) No. 1967 of 2022 -------------------------------------------------------- Dated this the 26th day of March, 2025 J UDGMENT The challenge in this Original Petition is to Ext.P16 common order dated 03.09.2022 in I.A.Nos.10 and 11 of 2022 in O.S.No.162/2006 on the file of the Subordinate Judge’s Court, Neyyattinkara. 2. The plaintiff is the petitioner. The plaintiff instituted the Original Suit for realisation of money. In the trial, PW1 and DW1 were examined. Exts.A1 to A11 were marked on the side of the plaintiff. No documents were produced and marked on the side of the defendants. The trial Court decreed the suit in favour of the plaintiff. The defendants challenged the decree and judgment filing RFA.No.128/2008 before this Court. This Court set aside the judgment and decree and remanded the matter to the trial Court for consideration of the matter afresh. The operative portion of the judgment passed by this Court in RFA.No.128/2008 reads thus:- OP(C) NO. 1967 OF 2022 2025:KER:26131 3 “The appeal will stand allowed in part. The decree and judgment of the trial court will stand set aside and the matter is remanded back to the trial court for fresh disposal after giving an opportunity to the plaintiff to give direct evidence. The parties are at liberty to adduce additional evidence, if so requires. The parties shall appear before the trial court on 18.03.2022. There will be a further direction to the trial court to dispose of the suit within a time schedule of four months from the date of appearance of the parties.” 3. After remand, DW2 to DW8 were examined and Exts. B1 to B14 were marked on the side of the defendants. Thereafter, the plaintiff filed I.A.Nos.10 and 11 of 2022. As per I.A.No.10/2022, the plaintiff prayed to reopen the evidence and I.A.No.11/2022 was filed for recalling DW1 for further cross-examination. The Court below rejected the applications stating that no new facts were brought out in evidence, and therefore, there is no need to recall DW1. 4. I have heard the learned counsel for the petitioner/plaintiff and the learned counsel for the respondents/defendants. 5. The learned counsel for the plaintiff/petitioner submitted that in view of the production of Exts.B1 to B14 after remand, the plaintiff should have been given an OP(C) NO. 1967 OF 2022 2025:KER:26131 4 opportunity to cross-examine DW1 on the contents of those documents. 6. The learned counsel for the respondents submitted that at the time of marking the documents on the side of the defendants, the plaintiff raised no objection, and therefore, there is no need to recall DW1. Admittedly, Exts.B1 to B14 were marked after remand. The request of the plaintiff/petitioner is to permit him to cross-examine DW1 based on the new documents admitted in evidence after remand. On the side of the defendants, DW2 to DW8 were also examined. It is submitted that the defendants were permitted to bring in new facts in evidence. Denial of opportunity to cross-examine DW1 on the new facts elicited will cause prejudice to the plaintiff, the learned counsel for the petitioner argued. 7. Having regard to the fact that 14 documents were produced after remand on the side of the defendants, this Court is of the view that the request to recall DW1 for cross-examination is justified. Therefore, the order impugned stands set aside. I.A.Nos.10 and 11 of 2022 in OP(C) NO. 1967 OF 2022 2025:KER:26131 5 O.S.No.162/2006 are allowed. The trial Court shall issue summons to DW1 for further examination. The Original Petition is disposed of as above. Sd/- K.BABU, NM JUDGE OP(C) NO. 1967 OF 2022 2025:KER:26131 6 APPENDIX OF OP(C) 1967/2022 PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE PLAINT IN O.S.NO. 162 OF 2006 ON THE FILES OF THE SUB COURT, NEYYATTINKARA ALONG WITH TYPED COPY EXHIBIT P2 THE TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN OS NO. 162 OF 2006 ON THE FILES OF THE SUB COURT, NEYYATTINKARA ALONG WITH TYPED COPY EXHIBIT P3 THE TRUE COPY OF THE JUDGMENT DATED 31.07.2007 PASSED BY THE SUB COURT, NEYYATTINKARA IN OS NO. 162/2006 EXHIBIT P4 THE TRUE COPY OF THE JUDGMENT OF THE HON’BLE HIGH COURT OF KERALA IN RFA NO. 128 OF 2008 DATED 07.03.2022 EXHIBIT P5 THE TRUE COPY OF THE DEPOSITION OF PW2 IN OS NO. 162/2006 ON THE FILES OF THE SUB COURT, NEYYATTINKARA EXHIBIT P6 THE TRUE COPY OF THE DEPOSITION OF PW3 IN OS NO. 162/2006 ON THE FILES OF THE SUB COURT, NEYYATTINKARA EXHIBIT P7 THE TRUE COPY OF THE DEPOSITION OF DW2 IN OS NO. 162/2006 ON THE FILES OF THE SUB COURT, NEYYATTINKARA EXHIBIT P8 THE TRUE COPY OF THE DEPOSITION OF DW3 IN OS NO. 162/2006 ON THE FILES OF THE SUB COURT, NEYYATTINKARA EXHIBIT P9 THE TRUE COPY OF THE DEPOSITION OF DW4 IN OS NO. 162/2006 ON THE FILES OF THE SUB COURT, NEYYATTINKARA EXHIBIT P10 THE TRUE COPY OF THE DEPOSITION OF DW5 IN OS NO. 162/2006 ON THE FILES OF THE SUB COURT, NEYYATTINKARA EXHIBIT P11 THE TRUE COPY OF THE DEPOSITION OF DW6 IN OS OP(C) NO. 1967 OF 2022 2025:KER:26131 7 NO. 162/2006 ON THE FILES OF THE SUB COURT, NEYYATTINKARA EXHIBIT P12 THE TRUE COPY OF THE DEPOSITION OF DW8 IN OS NO. 162/2006 ON THE FILES OF THE SUB COURT, NEYYATTINKARA EXHIBIT P13 TRUE COPY OF THE DEPOSITION OF DW1 IN OS NO. 162/2006 ON THE FILES OF THE SUB COURT, NEYYATTINKARA EXHIBIT P14 THE TRUE COPY OF IA NO. 10/2022 IN OS NO.162/2006 ON THE FILES OF THE SUB COURT, NEYYATTINKARA EXHIBIT P15 THE TRUE COPY OF IA NO. 11/2022 IN OS NO.162/2006 ON THE FILES OF THE SUB COURT, NEYYATTINKARA EXHIBIT P16 THE TRUE COPY OF THE COMMON ORDER PASSED BY THE SUB COURT, NEYYATTINKARA DATED 03.09.2022 IN IA NO. 10/2022 AND IA NO. 11/2022 IN OS NO. 162/2006 EXHIBIT P17 THE TRUE COPY OF THE JUDGMENT IN O.P.(C) NO.1047/2022 DATED 17.06.2022 PASSED BY THE HON’BLE HIGH COURT OF KERALA