Judgment:
1. The petitioner, the plaintiff in O.S.No.205 of 2006, Sub Court, Palakkad, is aggrieved by the order dated 11.8.2010 passed by the court below dismissing I.A.No.133 of 2010 filed by the plaintiff for summoning witnesses.
2. The suit is for a declaration that the plaint schedule property, having an extent of 3300 acres, exclusively belongs to the plaintiff and that defendants 1 to 8 or any of them have to manner of right, title, possession or interest in the property. There is also a prayer for permanent prohibitory injunction restraining defendants 1 to 8 from trespassing into the plaint schedule property. Defendants 1 to 8 are: (1) State of Kerala; (2) Conservator and Custodian or Vested Forest, Olavakkode, Palakkad; (3) District Forest Officer, Olavakkode; (4) Village Officer, Malampuzha; (5) Kerala Forest Development Corporation; (6) Prakashini G. Menon; (7) Jayasree Nair and (8) Kallekulangara Sri Emoor Bhagavathy Temple. In the written statement filed by the third defendant, a contention is raised that the suit is barred under the provisions of the Kerala Private Forests (Vesting and Assignment) Act, 1971.
3. The plaintiff filed I.A.No.133 of 2010 to issue summons to examine the following persons as witnesses on behalf of the plaintiff. They are: (1) The Principal Chief Conservator of Forest, Thiruvananthapuram; (2) the second defendant; (3) The former Forest Divisional Officer, Olavakkod; Palakkad; and (4) The Range Officer, Walayar, Palakkad. The application was opposed by the defendants. The court below, by the order impugned in this Original Petition, dismissed the application on the ground that the petitioner did not mention the purpose for which the witnesses are proposed to be examined and also on the ground that the petitioner did not file a witness list in form No.20 as stipulated under Rule 69 of the Civil Rules of Practice, Kerala.
4. In the affidavit accompanying the application, the petitioner stated thus:
“4. I have also contended that the Forest Tribunal by order dated 27.2.96 held that there is no notification under the Kerala Private Forest (Vesting and Assignment) Act, 1971 relating to the property and that V.K. Sreenivasan along with V.S. Sujith and their counsel met the Principal Chief Conservator of Forest on 19.11.2009 and submitted a representation and had a discussion in the matter of the harassment of the forest officials in conducting the cultivation in the plaint scheduled property. During the course of discussion the Prl. Chief Conservator of Forest has assured them that the forest officials have no right to take possession of any plantation under the Kerala Private Forest (Vesting and Assignment) Act, 1971 and they have not taken possession of Kalliaya estates or G.P.Nair plantation of any of the 17 industries.”
The learned counsel for the petitioner submitted that V.K. Sreenivasan and V.S. Sujith referred to in the affidavit are the Directors of the plaintiff Company.
5. One of the witnesses sought to be examined is the second defendant himself. Others are the officers of the Forest Department and a former officer of the Forest Department. In effect, apart from the second defendant, the other three witnesses sought to be examined would also satisfy the term “opposite party”. The reason for examining these officers is apparently to prove a discussion which took place between the Principal Chief Conservator of Forests and the Directors of the plaintiff Company and the alleged assurance made by the Principal Chief Conservator of Forests. The averment in paragraph 4 of the affidavit would also indicate that what is sought to be proved is an opinion on a question of law made by the Principal Chief Conservator of Forests and an assurance based on that opinion. Such opinion evidence is not relevant at all.
6. Summoning the opposite party as a witness is depreciated by this Court in various decisions. [See Jortin Antony v. S.P.D. Marthanda Varma (2000 (2) KLT 680); Narayana Pillai v. Kalliyani Amma (1963 KLT 537); Muhammed Kunju v. Shahabudeen (1969 KLT 170); Syed Mohammed v. Aziz (1990 (2) KLT 952) and Mary Francis v. Kesavan (1993 (1) KLT 4).] A party to the suit is entitled to examine himself and give evidence. He is also entitled to adduce such other relevant evidence by examining other witnesses. The Court has power to summon any witness whose evidence appears to be relevant. Section 30(b) of the Code of Civil Procedure confers vast powers on the civil court to issue summons to persons whose attendance is required either to give evidence or to produce documents or such other objects as mentioned in clause (a). The power vested in a Court under Section 30 is subject to such conditions and limitations as may be prescribed. The power under Section 30 can be exercised either on its own motion or on the application of any party. The conditions and limitations prescribed occur in Order XVI of the Code of Civil Procedure. No right is vested in a party to summon the opposite party as a witness. The Court is entitled to ascertain whether the purpose of summoning witnesses is for adducing relevant evidence or whether it is an attempt to cause inconvenience and embarrassment to the opposite party. It is not the absolute right of a party to summon any person as a witness or to examine any number of witnesses. The Court is not powerless in the matter of regulating the proceedings for taking evidence in the case.
7. The court below was justified in dismissing the application. The evidence sought to be adduced is not relevant. The persons sought to be examined are the second defendant and officials of the Forest Department, who satisfy the term “opposite party”. No grounds are made out for exercising the jurisdiction under Article 227 of the Constitution of India to interfere with the order passed by the court below.
The Original Petition lacks merit and it is accordingly dismissed.