Smt.Pavizham @ D.Indira Devi vs M.C.Thomas on 21 May, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 5886 of 2009(O)


1. SMT.PAVIZHAM @ D.INDIRA DEVI,
                      ...  Petitioner
2. K.M.HARIKUMAR, AGED ABOUT 41 YEARS,

                        Vs



1. M.C.THOMAS, AGED ABOUT 55 YEARS,
                       ...       Respondent

2. MONCY DANIEL, AGED ABOUT 41 YEARS,

                For Petitioner  :SRI.P.K.RAVINDRAN PUZHANKARA

                For Respondent  :SRI.M.M.SAIDU MUHAMMED

The Hon'ble MR. Justice S.S.SATHEESACHANDRAN

 Dated :21/05/2009

 O R D E R
              S.S.SATHEESACHANDRAN, J.
                  -------------------------------
              W.P.(C).NO.5886 OF 2009 (O)
                -----------------------------------
          Dated this the 21st day of May, 2009

                      J U D G M E N T

This writ petition is filed under Article 227 of the

Constitution of India seeking the following reliefs:

i. issue a writ of certiorari or such other writ,
direction or order calling for the records
leading to the proceedings/order dated
21.2.2009 in O.S.No.476 of 2007 on the file of
the 1st Additional Sub Court, Ernakulam and
quash the same while permitting the
petitioners to adduce oral evidence through
their Power of Attorney Holder on the basis of
Ext.P6 proof affidavit submitted in lieu of chief
examination.

ii. Award the petitioners the costs of these
proceedings; and

iii. Grant such other just and proper relief(s)
as this Honourable Court may deem fit and
proper.

Petitioners, two in number, are the defendents 2 and 3 in

O.S.No.476/2007 on the file of the 1st Additional Sub Court,

WPC.5886/09 2

Ernakulam. Suit was one for specific performance of an

agreement of sale, filed by the 1st respondent, the plaintiff.

The grievance of the petitioners is that the court below had

unjustifiably denied opportunity to them to lead evidence in

support of their case. The court, after examination of the

plaintiff, ordered for examining the 3rd defendant through

Commission. The 1st defendant in the suit also wanted to lead

evidence, but there was no order by the court to record his

evidence by Commission. So much so, the counsel for both

sides brought the matter to the notice of the court, the next

day, and thereupon the court permitted to record the evidence

of the 1st defendant also. The examination of the 1st

defendant by Commission continued till late evening, and

hence, there was no more time to record the evidence of the

3rd defendant on that day, is the submission of the learned

counsel for the petitioners. The next day, when the matter

was reported, the court was not inclined to give any more

opportunity to the 2nd and 3rd defendants to lead their

evidence, which was prematurely closed and the case was

posted for judgment. The petitioners approached this Court

WPC.5886/09 3

with the above writ petition seeking the indulgence of this

Court granting them an opportunity to lead evidence in the

case. The learned counsel appearing for the

1st respondent submitted that the statements made by the

counsel for the petitioners are not fully correct, but, he does

not stand on technicalities as the plaintiff is only interested in

getting a decision on merits. Having regard to the

submissions made by the counsel of both sides and taking

note of the facts and circumstances involved, it appears, the

premature closure of the evidence, without affording an

opportunity to the 2nd and 3rd defendants, the petitioners in

the case, to lead evidence was not justified. So much so, there

will be a direction to the court below to provide an

opportunity to the 3rd defendant, to examine his Power of

Attorney holder by Commission, preferably by the same

Commissioner, who recorded the evidence of the other

defendant.

2. Parties are directed to appear before the court below

on 2.6.2009, on which, the learned Sub Judge shall fix the

WPC.5886/09 4

date for examination of the Power of Attorney holder of the

3rd defendant through Commission. The learned counsel for

the petitioners submitted the evidence of the

3rd defendant by Commission alone is required to be let in on

behalf of the 2nd and 3rd defendants.

Writ petition is disposed as indicated above.

S.S.SATHEESACHANDRAN
JUDGE

prp

S.S.SATHEESACHANDRAN, J.

——————————————————–

CRL.R.P.NO. OF 2006 ()

———————————————————

O R D E R

———————————————————

23rd March, 2009