Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944 AGAINST THE ORDER IN MP 128/2021 OF FAMILY COURT, THRISSUR PETITIONER/PETITIONER :- GRACY VINCENT AGED 56 YEARS W/O VINCENT @ PAUL, RESIDING AT ARAKKAL HOUSE, FLAT NO. 7/B, ALUKKAS CASTELE, AYYANTHOLE P O, THRISSUR-680003. BY ADV T.SHIHABUDHEEN RESPONDENT/RESPONDENT :- VINCENT @ PAUL AGED 63 YEARS S/O CHACKO, RESIDING AT ARAKKAL HOUSE, S N PARK, ARANATUKARA VILLAGE, POOTHOLE P O, THRISSUR-680004. BY ADVS. SRI.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 31.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 31st day of August, 2022 This petition is filed under Article 227 of the Constitution of India seeking to set aside Ext.P3 and Ext.P6 orders passed by Family Court, Thrissur (for short ‘the court below’). Ext.P3 is an
order passed by the court below in M.P.No.445/2020 and Ext.P6 is
an order passed by the court below in M.P.Nos.128/2021 & hereinafter be referred to as the petitioner and the respondent in accordance with their status before the court below in the respective petitions.
2. The petitioner and respondent in the Original Petition on
hand are the petitioner and the respondent in M.C. No.350/2017 as well as the Criminal Miscellaneous Petitions. M.C.No.350/2017 was filed by the petitioner under Section 125(1) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) seeking to get monthly maintenance allowance from the respondent. M.C was posted for examination of the witness summoned. Copies of the petitions referred to above are produced alongwith the petition on hand as Exts.P2 and P5 respectively. Both M.P’s were heard by the court below and those were dismissed by Exts.P3 and P6 orders, which are under challenge herein.
3. M.P.No.1940/2019 was an application filed by the
petitioner calling for Bank account statements from IndusInd Bank. That application was allowed by the court below and summons was ordered to the petitioner directing production of the documents called for. Copy of the summons is produced alongwith the petition on hand as Ext.P14(b). It was specifically directed by the summons issued to produce Bank account statements for ten years preceding the date of the order. The Manager of IndusInd Bank appeared before the court below and he was examined. But he failed to produce the entire documents called for. He has produced only Bank account statements relating to some period against the direction issued by the court below. In the above circumstances, petitioner has filed an application as M.P.No.445/2020 seeking for issuance of warrant against the witness for the reason that the directions issued from the court below was disobeyed by him by failing to produce the entire documents. That application was dismissed by the court below. M.P.No.129/2021 was also filed seeking for adjournment of the case till the documents called for are produced by the witness. The court below has dismissed that application by Ext.P6 order. The court below is highly unjustified in passing Ext.P3 and P6 orders. Once summons is issued to a witness for production of a document, the court below is obliged to see that it is produced by the witness unless cogent reason is furnished by the witness for its non-production. Court below failed in its duty and therefore, that issuance of warrant against the witness and thereby procurement of the document was sought.
4. The witness summoned has disobeyed the direction
issued by the court to produce the account statements for a period of ten year by producing the document only for a period lesser than that. The non-production of the document called for, was not explained satisfactorily. M.P.No.445/2020 filed by the petitioner was dismissed by the Court stating that it carries no merit.
5. The petitioner has also filed an application seeking for
postponing the examination of the petitioner to a date after production of the document by the witness. When summons was issued to a witness for production of a document as prayed for by the petitioner, the court must see that the document called for is produced by the witness. By failing to take necessary measures to compel the witness for production of the document and by proceeding to dispose of the M.C., the court below has acted in a manner to shut out the evidence sought to be adduced by the party. The dismissal of the application filed by the petitioner to postpone the examination of the petitioner till the document called for is produced by the witness has also impacted in causing pejudice to the petitioner. The document called for is very much relevant for disposal of M.C.No.350/2017.
In the above circumstances, both orders are liable to be set aside and this Court do so. The court below shall reconsider M.P.Nos.445/2020 and 129/2021 in the light of the observations made by this Court hereinabove and pass appropriate orders within a period of two weeks from this day. O.P.(Crl) stands allowed accordingly. Sd/- MARY JOSEPH SMA JUDGE