T. Vrindakumari vs G.L. Mayadevi on 8 July, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 4361 of 2008(T)


1. T. VRINDAKUMARI, D/O. THANKAN,
                      ...  Petitioner

                        Vs



1. G.L. MAYADEVI,
                       ...       Respondent

2. AMBIKA M.NAIR, D/O. LATE MADHAVAN NAIR,

3. AARYA M.NAIR, D/O.LATE MADHAVAN NAIR AND

                For Petitioner  :SRI.RAM MOHAN.G.

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :08/07/2008

 O R D E R
                  M.SASIDHARAN NAMBIAR, J.
                    ...........................................
                   WP(C).No. 4361 OF 2008
                    ............................................
          DATED THIS THE 8th                  DAY OF JULY, 2008

                               JUDGMENT

Petitioner is the defendant in O.S.523 of 2001 and

appellant in A.S.132 of 2004. The appeal was filed against Ext.P1

judgment in O.S. 523 of 2001. This petition is filed under Article

227 of Constitution of India to quash Ext.P3 order passed by

learned Sub Judge in the appeal, whereunder learned Sub Judge

considered the question whether Ext.A3 is an agreement or bond

and whether it was executed by petitioner or not. A decree in the

suit was passed, based on Ext.A3. In the appeal, appellant

contended that Ext.A3 is not admissible in evidence as it is not

sufficiently stamped, being a bond and not an agreement and she

did not execute the same. Learned Sub Judge, as per order

dated 20.11.2007, entered a finding that Ext.A3 is an agreement

and it is sufficiently stamped. The order is challenged in this

petition filed under Article 227 of Constitution of India.

2. Though notice was sent to respondents/plaintiffs and

served, they did not appear.

3. Learned counsel appearing for petitioner was heard.

4. The question whether Ext.A3 was executed by petitioner

WP(C) 4361/2008 2

and whether it is a bond or an agreement and if it is a bond

whether it is sufficiently stamped and if not, whether it is to be

impounded as provided under Section 33 of Stamp Act and

whether it is admissible evidence are all questions to be decided

in the appeal, which is filed against the judgment. In fact, the

admissibility of Ext.A3 is one of the main questions to be decided

in the very appeal. In such circumstances, learned Sub Judge

was not justified in entering a preliminary finding in the appeal

on the admissibility of Ext.A3. Learned Sub Judge is directed to

hear the appeal itself, including the question of admissibility of

Ext.A3, while considering the appeal and dispose the appeal in

accordance with law.

M.SASIDHARAN NAMBIAR, JUDGE

lgk/-