IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32303 of 2008(U)
1. K.SATHYAN, S/O. RARICHAN,
... Petitioner
Vs
1. MAPPALA RAJU, S/O. KUMARAN,
... Respondent
2. EMBARAKANDI SYAMALA SATHYAN,
For Petitioner :SRI.P.V.KUNHIKRISHNAN
For Respondent :SMT.LATHA PRABHAKARAN
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :26/11/2008
O R D E R
K.P. Balachandran, J.
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W.P.(C)No.32303 of 2008 U
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JUDGMENT
Petitioner is the second defendant in O.S.No.
152/04 on the file of the II Additional Sub Court,
Kozhikode. The second respondent herein is the
first defendant and the first respondent herein is
the plaintiff. The suit was instituted for specific
performance of a contract for sale of immovable
property belonging to the petitioner.
2. According to the petitioner/second
defendant, he is working abroad and therefore, he
filed I.A.No.3148/08 before the trial court through
his power of attorney holder for leave to contest
the suit through the power holder. His wife, who
was a co-defendant in the suit, resisted the prayer
on the ground that the petitioner, who is her
husband, is not alive. Obviously, as submitted by
the counsel for the petitioner, if he wants to show
that he is alive, he has to come over to India,
whereas he is now working abroad and that giving
WPC 32303/08 2
opportunity for him either to come over to India
and prove his existence or believing the averments,
the court below should have allowed the power of
attorney holder to contest the suit.
3. Counsel for the second respondent/wife
submits that the second respondent has not heard of
the petitioner from 2004 onwards and therefore,
according to her, he is a dead person. All the
same, counsel for the second respondent submits
that steps under Sections 82 and 83 Cr.P.C. are
pending against the petitioner/husband, who is an
accused in C.C.No.871/04, registered on the basis
of a complaint filed by the wife.
4. It is strange that the wife has contended
that the petitioner/husband, who is stated to be
working abroad, is not alive, as according to her,
ever after 2004, she has not seen him or heard of
him. Seven years having been not completed, even
on the allegations so stated, there is no
presumption under the Evidence Act that he is dead.
WPC 32303/08 3
Even on the submissions made by the wife, it is a
case where no presumption of death can be drawn and
hence the objection raised by the second respondent
wife against allowing the power of attorney holder
to contest the case on behalf of the petitioner/
second defendant should have been repelled and the
application allowed by the court below.
5. In the result, I dispose of this writ
petition setting aside Exhibit P4 order and
allowing I.A.No.3148/08 as prayed for.
26th November, 2008 (K.P.Balachandran, Judge)
tkv