Harilal, J The petitioner herein is the petitioner in I.A.
No.1476/14 as well as I.A. No.1478/14 in O.P.No.1515/11 of the Family Court, Thiruvananthapuram. The grievance of the petitioner in I.A. No.1476/14 is that, though he was examined as P.W.1 by the Commissioner, the evidence was closed without giving an opportunity to examine the witnesses in the schedule. Hence the above petition was filed for re-opening the evidence, so as to enable him to adduce further evidence by examining witnesses. I.A. No.1478/14 is a petition filed by the Power of Attorney Holder of the petitioner for accepting the witness schedule after condoning the delay.
2. The respondent filed objection against both applications.
According to the respondent, the Commissioner had recorded her evidence from 25/4/2014 onwards and filed a report on 2/5/2014, in view of the directions of this Court in O.P.(F.C) No.1755/13. Thus, there is no irregularity in closing the evidence on 2/5/2014
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in compliance with the direction of this Court. That apart, sufficient opportunities were given to cross examine the petitioner and his witnesses from 25/4/2014 onwards. But the petitioner has not availed of those opportunities.
3. In view of the rival contentions, the matter was heard and the learned Family Court Judge dismissed both the applications on a finding that in view of the directions of this Court in O.P.(F.C) No.1755/13 the evidence cannot be reopened and the petitioner has not availed of earlier opportunities which were given to him for examining the witnesses.
4. Going by the impugned order, it could be seen that the learned Family Court Judge has narrated the sequences of events from the very beginning of the case. The trial started from 23/9/2013 onwards; but the same has not been completed, despite the lapse of more than one year. After perusing the B diary, the learned Judge has arrived at a conclusion that sufficient opportunities were given to the petitioner to file witness schedule, and also to adduce further evidence, if any.
5. Going by the findings whereby the learned Judge dismissed the applications, we cannot find fault with the court below for dismissing the applications, particularly, in view of the direction of this Court to dispose the O.P. expeditiously as possible.
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6. But, we are inclined to take a lenient view in a different perspective. Adjudication of a matter in dispute on merit is always more desirable than disposal of the case on technicalities. When substantial justice and technical considerations are pitted against each other, substantial justice deserves to be preferred rather than technical considerations. In the above view, the petitioner is given a further opportunity to adduce evidence on terms. The impugned orders under challenge will stand set aside on compliance of the condition given below. The petitioner shall pay a cost of Rs.5,000/- (Rupees Five thousand only) to the respondent within a period of two weeks from the date of receipt of this order and the court below shall, on production of the receipt or memo evidencing said payment of cost, reopen the petitioner's evidence and permit him to adduce further evidence. Needless to say, the petitioner's evidence will stand open and both interlocutory applications will stand allowed on compliance of the above condition, failing which the impugned orders under challenge will stand in force as such.
Sd/-
(V.K.MOHANAN, JUDGE)
Sd/-
(K.HARILAL, JUDGE)
okb.