COURT, KANNUR v. S /

Kannur. He is aggrieved by Ext.P3 order, as per which, the petitioner’s evidence was closed, without ensuring the presence of the witnesses cited in the witness list for the purpose of adducing evidence.

2. Heard the learned counsel for the petitioner and the learned counsel for the first respondent. Though notice was served to other respondents, there is no representation.

3. Learned counsel for the petitioner submits that a witness list containing the names and addresses of, as many as, fourteen witnesses has been filed, of which, the petitioner and three other witnesses alone O.P.(C.) No.2582 of 2022 3 were examined. Though summons were issued to other witnesses, they have not cared to attend the Court. The Court has also issued bailable warrant, which step also evoked no response. According to the learned counsel, who invited the attention of this Court to Sections 30 and 32 of the Code of Civil Procedure, the Court has to play a pro-active role in securing the attendance of the witnesses, especially in a proceeding like election petition, where the witnesses are persons who are staunch supporters of the ruling party, to which the first respondent, the return candidate, belong. Once the Court makes up its mind to issue summons to the witnesses, it is for the Court to ensure that the presence of such witnesses are secured for the purpose of giving evidence, is the submission of the learned counsel for the petitioner.

4. This application was seriously opposed by the learned counsel for the first respondent, by pointing out that adequate opportunity was given to the petitioner O.P.(C.) No.2582 of 2022 4 and no effective steps were taken by him, which resulted in Ext.P3 order closing the evidence of the petitioner.

5. Having heard the learned counsel appearing on both sides, this Court is of the view that the petitioner can be afforded one more opportunity to adduce evidence through the witnesses mentioned in the witness list. As pointed out by the learned counsel for the petitioner, Section 32 of the Code of Civil Procedure refers to four specific remedies to compel the attendance of a person, to whom summons has been issued. It is not in dispute that all the remedies contemplated in Section 32 has not been exhausted as against those witnesses, whose presence could not be secured. Although this Court may endorse the submission of the learned counsel for the petitioner that the Courts have a pro-active role to be performed in compelling the attendance of the witnesses, this Court is not in a position to accept the contention that it is O.P.(C.) No.2582 of 2022 5 wholly the look out of the Court to secure their presence by resorting to one or other measure specified in Section 32. This Court is of the view that for an effective application of the measures specified in Section 32, necessary application containing the required data, has to be filed by the petitioner.

6. In the circumstances, Ext.P3 order is set aside. The petitioner is given two more weeks’ time to take effective steps against those witnesses, whose presence could not be secured, dehors issuance of summons. It will be open for the petitioner to file necessary application demanding invocation of one or other or all of the remedies contemplated in Section 32, supported by such particulars to be furnished for an effective invocation of such remedy. Once such steps are taken, the court below will resort to the remedies under Section 32 in accordance with law, to secure the presence of the witnesses. It is also clarified that it will be open for the learned Munsiff to issue non bailable O.P.(C.) No.2582 of 2022 6 warrant through the Superintendent of Police, so as to ensure the presence of the witnesses. With these observations, this original petition will stand disposed of. Sd/- C. JAYACHANDRAN JUDGE SKP/03-01 O.P.(C.) No.2582 of 2022 7 APPENDIX OF OP(C) 2582/2022 PETITIONER’S EXHIBITS: EXHIBIT P1 EXHIBIT P2 EXHIBIT P3 EXHIBIT P4 EXHIBIT P5 EXHIBIT P6 EXHIBIT P7 EXHIBIT P8 TRUE COPY OF THE PETITION IN OP (E) 6/2021 BEFORE THE MUNSIFF COURT, KANNUR DATED 14.01.2021. TRUE COPY OF THE COUNTER STATEMENT FILED BY THE FIRST RESPONDENT IN OP (E) 6/2021 FILED BY THE 1ST RESPONDENT DATED 15.03.2021. TRUE COPY OF THE ORDER DATED 28/11/2022 IN OP(EL) 6/2021 OF THE MUNSIFF OF KANNUR. THE TRUE COPY OF THE CASE STATUS DATED 10/06/2022 TAKEN FROM E COURT SERVICES. THE TRUE COPY OF THE CASE STATUS DATED 27.06.2022 TAKEN FROM E COURT SERVICES. THE TRUE COPY OF THE CASE STATUS DATED 31.08.2022 TAKEN FROM E COURT SERVICES. THE TRUE COPY OF THE CASE STATUS DATED 08.11.2022 TAKEN FROM E COURT SERVICES. THE TRUE COPY OF THE CASE STATUS DATED 15.11.2022 TAKEN FROM E COURT SERVICES. RESPONDENTS' EXHIBITS:NIL TRUE COPY P.A. TO JUDGE